Anfora v. Liberty Communications

744 P.2d 265 (1987)

88 Or.App. 30

In the matter of the Compensation of Carl A. ANFORA, Claimant. Carl A. Anfora, Petitioner-Cross-Respondent, v. LIBERTY COMMUNICATIONS and Fireman's Fund Insurance, Respondents Cross-Petitioners, and Cable Communications and Argonaut Insurance, Respondents-Cross-Respondents.

WCB 85-03807, 85-03808, 85-06955, 85-06956; CA A40575.

Court of Appeals of Oregon.

Petition For Attorney Fees June 29, 1987.

Petition For Attorney Fees July 7, 1987.

Decided October 21, 1987.

*266 Roger Ousey and Bischoff & Strooband, P.C., Eugene, for petition.

Lydia E. Duncan and Kevin L. Mannix, P.C., Salem, for response.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

On Petitioner Cross-Respondent's Petition For Attorney Fees June 29, 1987.

On Respondents Cross-Respondents' Response to Petition For Attorney Fees July 7, 1987.

BUTTLER, Presiding Judge.

In this workers' compensation proceeding under ORS 656.307 to determine which of two employers is responsible for claimant's back condition, claimant petitioned and Liberty Communication cross-petitioned for judicial review of a Board decision holding that claimant had suffered an aggravation of a 1982 compensable injury sustained at Liberty. We reversed the Board and reinstated the referee's determination that claimant had suffered a new injury while working for Cable Communications (Cable). 86 Or. App. 9, 737 P.2d 977 (1987). In his present petition, claimant asserts that, pursuant to ORS 656.382(2) and ORS 656.386(1), he is entitled to attorney fees payable by Cable, because he participated in the proceeding on review and succeeded in establishing here that he had suffered a new injury for which Cable is responsible.

Because Cable did not seek judicial review, this case does not fall within ORS 656.382(2),[1] which allows for attorney fees against an employer or insurer who initiates an appeal. See Shoulders v. SAIF, 300 Or. 606, 609, 716 P.2d 751 (1987).

Claimant is entitled to attorney fees under ORS 656.386(1)[2] if he finally prevailed on review "from an order or decision denying the claim for compensation." Shoulders v. SAIF, supra, 300 Or. at 611, 716 P.2d 751. We have usually held that our review of a proceeding which decided only a question of responsibility is not review of "an order or decision denying the claim," because the claimant's right to compensation has not been affected. Petshow v. Farm Bureau Ins. Co., 76 Or. App. 563, 710 P.2d 781 (1985), rev. den. 300 Or. 722, 717 P.2d 630 (1986). We have made exceptions and awarded fees under either ORS 656.382(2) or ORS 656.386(1), however, when, as a result of some technical challenge by the employer, a claimant has been required to appear and participate in order to avoid a loss of compensation. See Stovall v. Sally Salmon Seafood, 84 Or. App. 612, 615, 735 P.2d 18, rev. allowed 304 Or. 240, 744 P.2d 254 (1987); Nat. Farm Ins. v. Scofield, 56 Or. App. 130, 641 P.2d 1131 (1982); Hanna v. McGrew Bros. Sawmill, 44 Or. App. 189, 605 P.2d 724, mod. 45 Or. App. 757, 609 P.2d 422 (1980). This is not such a case.

Although claimant may have initiated review in order to secure an extended period *267 during which he would have aggravation rights and, in fact, succeeded in that objective, at no time was his right to compensation on the present claim at risk. We conclude, for that reason, that ORS 656.382(2) does not entitle him to attorney fees for prevailing against Cable on review.

Petition for attorney fees denied.

[1] 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."

[2] ORS 656.386(1) provides, in part:

"In all cases involving accidental injuries where a claimant finally prevails in an appeal to the Court of Appeals or petition 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."