Atwood v. State Accident Insurance Fund

569 P.2d 52 (1977) 30 Or.App. 1009

In the matter of the Compensation of Woodrow W. ATWOOD, Claimant, Respondent,
v.
STATE Accident Insurance Fund, Appellant.
In the matter of the Compensation of Gary T. Christensen, Claimant, Respondent,
v.
State Accident Insurance Fund, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 29, 1977. Decided September 19, 1977.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Thomas D. Melum, Medford, argued the cause for respondent. With him on the brief was Frohnmayer & Deatherage, Medford.

Before THORNTON, P.J., and TANZER and RICHARDSON, JJ.

TANZER, Judge.

This is a consolidated appeal by the State Accident Insurance Fund (SAIF) from awards of attorney fees by the circuit court in two workers' compensation cases on entry of the mandates following appeal. The claims for compensation in both cases were denied by the hearings officer, the Workers' Compensation Board and the circuit court. One claimant prevailed on appeal to this court;^[1] the other appealed unsuccessfully to this court but prevailed in the Supreme Court.^[2] There were no attorney fees ordered on appeal. On entry of the mandates, however, the circuit court awarded the claimants attorney fees of $2,900 and $5,250, respectively, for investigation and representation at all levels of the proceedings.

Attorney fees in workers' compensation cases may be awarded only when expressly authorized by statute. Uris v. Compensation Department, 247 Or. 420, 429, 427 P.2d 753, 430 P.2d 861 (1967); Schartner v. Roseburg Lumber Co., 20 Or. App. 1, 5, 530 P.2d 545, 547 (1975); Giese v. Safeway Stores, 10 Or. App. 452, 461, 499 P.2d 1364, 501 P.2d 982, 983, rev. den. (1972); Bailey v. Morrison-Knudsen, 5 Or. App. 592, 598, 485 P.2d 1254, 1256 (1971). ORS 656.386 provides the only authorization for a circuit court to award attorney fees in workers' compensation cases where a claimant brings the appeal. It reads in pertinent part:

"(1) In all cases involving accidental injuries where a claimant prevails in an appeal to the circuit court from a board order denying his claim for compensation, the court shall allow a reasonable attorney's fee to the claimant's attorney. * *

"(2) In all other cases attorney fees shall continue to be paid from the claimant's award of compensation except as otherwise provided in ORS 656.301 and 656.382."

In these cases, claimants did not prevail in their appeals from the board orders to circuit court. The reasoning of the circuit judge that the entry of a mandate by the circuit court after a successful appeal justifies attorney fees for having prevailed in circuit court has no support in the statute. Cases in which a claimant prevails on appeal to this court or the Supreme Court fall into the category of "all other cases" in ORS 656.386(2), in which attorney fees must be paid from the claimants' compensation awards. Giese v. Safeway Stores, 10 Or. App. 452, 461-2, 499 P.2d 1364, 501 P.2d 982, 983-4 (1972). The order awarding attorney fees was therefore unlawful.

Reversed.

NOTES

[1] Christensen v. SAIF, 27 Or. App. 595, 557 P.2d 48 (1976).

[2] Atwood v. SAIF, 24 Or. App. 803, 547 P.2d 191, reversed 276 Or. 201, 554 P.2d 504 (1976).