Sunday, November 22, 2015

A Reasonable Attoneys Fee?

There have been a couple of interesting decisions in and Oregon case styled SAIF v. Traner. The recovering worker suffered a shoulder injury, which was accepted. The recovering worker later made a claim for "arthralgia" which the Workers' Compensation Board concluded was "only a symptom of the accepted shoulder injury and was not a new or omitted condition." Thus, the arthralgia became part of the compensable injury, but the recovering worker was not therefore entitled to "recover compensation or a penalty," as a result of successfully litigating its inclusion/compensability. 

But, that did not mean that the carrier, SAIF, was off the hook. SAIF stands for State Accident Insurance Fund. It is "Oregon's not-for-profit, state-chartered workers' compensation insurance company," and "the market leader" in Oregon according to its website. Just because the recovering worker was not entitled to compensation or penalty did not mean that the attorney should not recover a fee. The Board concluded that SAIF's failure to file a formal denial within 60 days of the claim "justified an award to claimant for attorney fees." The Court agreed, concluding that the recovering worker "vindicated her procedural right to a timely response to her claim."

That was concluded by the Court in SAIF v. Traner, 270 Or App 67, 346 P3d 1248 (2015), the "principal case." Similar to what is common in our Florida process, the fee entitlement issue was thus decided, but the fee amount remained for determination in a subsequent hearing.

The attorneys then filed for fees of $16,800, citing two statutory sections: ORS 656.262(11) and ORS 656.382(2). The Court mentions ORS 656.382(2) somewhat dismissively ("SAIF is correct that the statute in its form at the time of this case provides no authority for fees on appeal in the absence of 'compensation.'"). And, turns its attention to ORS 656.262(11), which it notes "is an independent authorization for an award of attorney fees." The history of the two statutes is reviewed in support of that conclusion. 

The court describes a limitation on fees in ORS 656.262(11) as a "soft cap." This sounds similar to the presumptive fee which once existed in Fla. Stat. §440.34. The Court noted that this "soft cap" was $3,000 and had been increased during the recent legislative session to $4,000. The Court also noted that the legislature had contemplated future increases in that "soft cap," with "annual adjustments" under the statute.

The Court quotes ORS 656.262(11) at length in the opinion. This foundation for fee entitlement says "in assessing fees, the director, an Administrative Law Judge, the board or the court shall consider the proportionate benefit to the injured worker." Though this language is cited, the opinion provides little insight into the Court's analysis of this point, the benefit to the injured worker, the proportion, etc. It remains unclear from the opinion how those factors might figure in the calculus of a fee in similar cases. 

Another interesting concept is discussed by the court, in footnote 2. The Court notes that the legislature empowered the Workers' Compensation Board to "adopt rules for the establishment, assessment and enforcement of an hourly attorney fee rate specified in this (ORS 656.262(14)(a), a different) subsection." In Oregon, there is a method for establishing an hourly fee rate in some situations. While that section did not strictly apply to the case at bar, the Court noted its presence and procedure. 

Returning to the issue at hand of the ORS 656.262(11) fee, the court concluded that the $3,000 cap could be exceeded "upon a finding of 'extraordinary circumstances.'” Noting that the claimed $16,800 was sought as recompense for 48.9 hours (rate of $343.56), the Court concluded that the case was "not extraordinary, all in all." Unlike the multi-factor consideration for deviation from the statutorily presumed fee that was in Fla. Stat. §440.34, the Court's inquiry seems limited to whether the matter was "extraordinary." 

The conclusion was a holding awarding $3,334. For the time claimed, this results in an hourly rate of $68.18. Whether that rate granted, or the $343.56 sought per hour sought is a "reasonable fee" or not would be for the reader to conclude. However this case illustrates a method of fee calculation that is different from Florida's and interesting. The opinion is worth a read. 

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