Mercer Industries v. Rose

795 P.2d 615 (1990)

103 Or.App. 96

In the matter of the Compensation of Larry K. Rose, Claimant. MERCER INDUSTRIES and Lumbermen's Underwriting Alliance, Petitioners Cross-Respondents, v. Larry K. ROSE, Respondent Cross-Petitioner, and American Building Maintenance, Ebi Companies and Ebi Services, Inc., Respondents Cross-Respondents.

88-16120, 88-03158; CA A51112.

Court of Appeals of Oregon.

Petition for Reconsideration May 22, 1990.

Decided August 8, 1990.

Patric J. Doherty, E. Kimbark MacColl, Jr., and Rankin, VavRosky, Doherty, MacColl & Mersereau, Portland, for petition.

No appearance contra.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

On Petitioners Cross-Respondents' Petition for Reconsideration May 22, 1990.

EDMONDS, Judge.

Petitioner moves for reconsideration of our opinion in Mercer Industries v. Rose, 100 Or. App. 252, 785 P.2d 385 (1990). We held that the Board erred when it refused to award attorney fees to claimant after claimant actively litigated the issue of responsibility. Petitioner argues that claimant is not entitled to an employer-paid attorney fee, because his right to compensation was never in jeopardy.

Claimant's entitlement to receive compensation was resolved before the hearing when an order of responsibility under former ORS 656.307,[1] was issued. ORS 656.386(1) provides, in pertinent part:

"In all cases involving accidental injuries where a claimant finally prevails in an appeal to the Court of Appeals or petition *616 for review to the Supreme Court from an order or decision denying the claim for compensation, the court shall allow a reasonable attorney fee to the claimant's attorney. In such rejected cases where the claimant prevails finally in a hearing before the referee or in a review by the board itself, then the referee or board shall allow a reasonable attorney fee." (Emphasis supplied.)

Because claimant did not seek review from an order denying compensation, he is not entitled to attorney fees under ORS 656.386(1). Shoulders v. SAIF, 300 Or. 606, 611, 716 P.2d 751 (1986). To the extent that SAIF v. Phipps, 85 Or. App. 436, 737 P.2d 131 (1987), is inconsistent with this opinion, it is overruled.

Motion for reconsideration allowed; former opinion modified to affirm on cross-petition and adhered to as modified.

NOTES

[1] ORS 656.307 was amended in 1987, after the hearing in this case, to include a provision for award of attorney fees in responsibility hearings. See ORS 656.307(5).