Hanna v. McGREW BROTHERS SAWMILL, INC.

609 P.2d 422 (1980)

45 Or.App. 757

In the matter of the Compensation of Oliver HANNA, Claimant, and Ebi Company, Respondents, v. McGrew BROTHERS SAWMILL, INC., and Argonaut Insurance Company, Petitioners.

No. 77-6756; CA 14770.

Court of Appeals of Oregon.

On Petition for Reconsideration Filed February 27, 1980.

Decided April 14, 1980.

*423 Mary T. Danford and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland, for petitioners.

No appearance contra.

Before SCHWAB, C.J., and RICHARDSON and JOSEPH,[*] JJ.

On Petitioner's Petition for Reconsideration Filed February 27, 1980.

RICHARDSON, Judge.

Argonaut Insurance Company petitioned for reconsideration of the portion of our opinion which affirmed the award of attorney's fees to claimant. Argonaut contends a proceeding to determine which of two insurance carriers is responsible for an otherwise compensable injury pursuant to ORS 656.307 does not involve a denied claim entitling claimant to attorney's fees under ORS 656.386(1).

We did not intend to hold that in all proceedings under ORS 656.307 that a claimant would be entitled to attorney's fees relating to participation in the hearing. Claimant, in this case, was required to appear and contest Argonaut's contention that he was not entitled to compensation because he had not requested a hearing on Argonaut's denial of compensation. Because he was required to defend his right to receive compensation benefits from Argonaut we hold he is entitled to attorney's fees paid by Argonaut.

The petition for reconsideration is allowed; we adhere to our decision affirming the award of attorney's fees on the basis set forth above.

Petition for reconsideration allowed; affirmed as modified.

[*] JOSEPH, J., vice LEE, J., deceased.