Saxton v. SAIF

723 P.2d 355 (1986)

80 Or. App. 631

In the Matter of the Compensation of Laurence E. Saxton, Claimant. Laurence E. SAXTON, Petitioner, v. SAIF CORPORATION and BBN Enterprises, Respondents.

WCB 83-10671; CA A36554.

Court of Appeals of Oregon.

Argued and Submitted February 19, 1986.

Decided August 13, 1986.

Reconsideration Denied October 3, 1986.

Review Denied October 28, 1986.

James L. Edmunson, Eugene, argued the cause for petitioner. With him on brief was Malagon & Associates, Eugene.

Jeff Bennett, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before RICHARDSON, P.J., JOSEPH, C.J., and WARDEN, J.

RICHARDSON, Presiding Judge.

The issue in this workers' compensation case is whether claimant, who successfully defended a referee's award of penalties and attorney fees in an insurer's appeal to the Workers' Compensation Board, is entitled to attorney fees under ORS 656.382(2), even though the insurer was successful in persuading the Board to overturn the referee's award of additional temporary total disability and to reduce the award of permanent partial disability.

ORS 656.382(2) provides:

"If a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to the Supreme Court is initiated by an employer or insurer, and the referee, board or court finds that the compensation awarded to a claimant should not be disallowed or reduced, the employer or insurer shall be required to pay to the claimant or the attorney of the claimant a reasonable attorney fee in an amount set by the referee, board or the court for legal representation by an attorney for the claimant at and prior to the hearing, review on appeal or cross-appeal."

The Board denied claimant's request for attorney fees, because he had "prevailed only on the penalty/attorney fee issue and lost on the `compensation' issues." Claimant argues that attorney fees and penalties *356 are "compensation" within the meaning of ORS 656.382(2) and that, because the Board did not reduce or disallow either of those awards, he is entitled to attorney fees for his defense of those awards.

In Bahler v. Mail-Well Envelope Co., 60 Or.App. 90, 652 P.2d 875 (1982), we held that, after the insurer's appeal to the Board, the claimant was entitled to attorney fees under ORS 656.382(2) when the Board found that the compensation that the referee awarded should not be reduced but that the penalties awarded should be. We stated: "The term `compensation,' as used in ORS 656.382(2), excludes penalties." 60 Or.App. at 93, 652 P.2d 875. Accord, Mt. Mazama Plywood Co. v. Beattie, 62 Or.App. 355, 661 P.2d 109 (1983). Similarly, in Mobley v. SAIF, 58 Or.App. 394, 648 P.2d 1357 (1982), we held that the claimant was entitled to attorney fees under the statute when the Board affirmed the referee's decision that the claim was compensable but reduced the referee's award of attorney fees. We said that "[t]he reduction in the fee ordered by the Board had no effect on the entitlement to an award of attorney fees under ORS 656.382(2)." 58 Or.App. at 397, 648 P.2d 1357. In Dotson v. Bohemia, Inc., 80 Or.App. 233, 720 P.2d 1345 (1986), we expressly held that the term "compensation" in ORS 656.382(2) does not include attorney fees. Claimant is not entitled to attorney fees under that statute.

The Board in this case reduced the amount of benefits that the referee had awarded. It relied on our decision in Barrett v. D & H Drywall, 73 Or.App. 184, 698 P.2d 498 (1985), in not considering claimant's preexisting condition in calculating the extent of permanent partial disability. Claimant did not assign error to the Board's reduction of the award. After the briefs in this case were filed, but before oral argument, the Supreme Court reversed our decision in Barrett and held that a worker's preexisting condition must be considered in determining the extent of PPD if it is made disabling by the compensable injury. Barrett v. D & H Drywall, 300 Or. 325, 709 P.2d 1083 (1985), clarified 300 Or. 553, 715 P.2d 90 (1986). At oral argument, claimant's attorney requested that we review the award in the light of the Supreme Court's opinion in Barrett. We decline to do so.

Affirmed.