justicedao/ipfs_state_laws huggingface dataset:
438-015-0010 General Principles (1) Attorney fees for an attorney representing a claimant before the Board or its Hearings Division shall be authorized only if an executed attorney retainer agreement has been filed with the Administrative Law Judge or Board. (2) Attorney fees for an attorney representing a claimant shall be paid out of the claimant’s compensation award except as provided by ORS 656.262(11)(a), ORS 656.307, 656.382, 656.383 and 656.386. (3) An approved fee awarded or allowed to an attorney representing a claimant shall be a lien upon the claimant’s compensation. (4) In any case where an Administrative Law Judge or the Board is required to determine a reasonable attorney fee, the following factors shall be considered: (a) The time devoted to the case for legal services; (b) The complexity of the issue(s) involved; (c) The value of the interest involved; (d) The skill of the attorneys; (e) The nature of the proceedings; (f) The benefit secured for the represented party; (g) The necessity of allowing the broadest access to attorneys by injured workers; (h) The fees earned by attorneys representing the insurer/self-insured employer, as compiled in the Director’s annual report under ORS 656.388(7) of attorney salaries and other costs of legal services incurred by insurers/self-insured employers pursuant to ORS Chapter 656; (i) The risk in a particular case that an attorney’s efforts may go uncompensated ; (j) The contingent nature of the practice of workers’ compensation law; (k) The assertion of frivolous issues or defenses; and (l) Claimant’s counsel’s contingent hourly rate, if asserted, together with any information used to establish the basis upon which the rate was calculated. (5) Percentage limitations on fees established by these rules apply to the amount of compensation paid the claimant exclusive of medical, hospital or other expenses of treatment. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.307, 656.382, 656.383, 656.386 & 656.388 History: WCB 2-2020, amend filed 08/19/2020, effective 10/01/2020 WCB 1-2020, amend filed 03/06/2020, effective 06/01/2020 WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16 WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0011 Attorney Retainer Agreement (1) Except as provided in subsection (2), every executed attorney retainer agreement filed with the Administrative Law Judge or Board shall be in English. (2) Any English language attorney retainer agreement filed with the Administrative Law Judge or Board may be accompanied by a translation into a foreign language that is certified by the translator to be an accurate and true translation of the English writing. Either the English or the foreign language writing must be signed. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.388(3) History: WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04
438-015-0015 Charge for Legal Services Must Be Authorized No charge for legal services for representation of claimants in connection with any matter concerning a claim before the Board or its Hearings Division under ORS Chapter 656 is valid unless the charge has been authorized in accordance with ORS 656.262(11)(a), 656.307, 656.308(2)(d), 656.382 to 656.390 or 656.593 or these rules. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.388(1) History: WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 4-1988(Temp), f. & ef. 11-15-88 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0022 Attorney Fee Lien Procedures (1) If a former attorney of a claimant alleges that the former attorney has been instrumental in obtaining additional compensation or in settling a claim, the former attorney may provide a notice of potential attorney fee lien to the insurer or the self-insured employer. Copies of such a notice shall also be simultaneously provided to the claimant and to the appropriate litigation forum, if there is a pending case before the Hearings Division or the Board. (2) The notice of potential attorney fee lien shall include, but is not limited to, the following information: (a) A description of the former attorney’s services that support the allegation that the attorney was instrumental in obtaining additional compensation or in settling the claimant’s claim; (b) The amount of the potential claim; (c) The amount of the potential attorney fee lien; and (d) A copy of an executed retainer agreement between the claimant and the former attorney. (3) If the insurer or self-insured employer has received a notice of a potential attorney fee lien, any proposed disputed claim settlement, settlement stipulation, or claim disposition agreement shall include a provision resolving the potential attorney fee lien. Any approval of a settlement agreement that does not comply with this provision shall be void. (4) If the notice of potential attorney fee lien is disputed, the former attorney, the claimant, the insurer, or the self-insured employer may file a petition for resolution of the lien dispute with the forum where litigation involving the claim is pending or, if there is no pending litigation, with the Hearings Division. The petition shall include copies of the notice of potential attorney fee lien and the accompanying materials that were submitted to the claimant and the insurer or the self-insured employer, as well as any other relevant documents. (5) If a petition for resolution of a potential attorney fee lien dispute is filed, the respondent(s) shall be provided not less than seven days to respond to the petition. The former attorney shall also be provided not less than seven days to reply to the responses. (6) The resolution of a potential attorney fee lien dispute shall be made by a final, appealable order. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.388(3) & 656.726(5) History: WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08
438-015-0025 Maximum Attorney Fees Out of Compensation Except in situations where a claimant's attorney fee is an assessed fee, in settlement of disputed claims or claim disposition agreements and in cases under the third-party law, unless there is a finding in a particular case by an Administrative Law Judge or the Board that extraordinary circumstances justify a higher fee, the established fees for attorneys representing claimants are as set forth in OAR 438-015-0040, 438-015-0055(2), (3), and 438-015-0080. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.236(4), 656.289(4), 656.307, 656.308(2), 656.382, 656.386, 656.388(3) & 656.593(1)(a) History: WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16 WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0029 Request at Board Review Level for Assessed Fees (1) On Board review of an Administrative Law Judge's order, to assist the Board in determining the amount of a reasonable assessed fee for services at the hearing level and/or for services on Board review, a claimant's attorney may file a request for a specific fee, which the attorney believes to be reasonable. (2) The request shall be considered by the Board if: (a) The request is filed no later than 14 days from the date of filing of the last appellate brief under OAR 438-011-0020; (b) The request describes in detail the manner in which the factors set forth in OAR 438-015-0010(4) specifically apply to the case, as well as any other information deemed relevant; and (c) A copy of the request is simultaneously served upon the attorneys who appeared at hearing and on Board review in the manner provided in OAR 438-005-0046(2)(a) and proof of such service is provided in accordance with 438-005-0046(2)(b). (3) A written response raising objection to the request shall be considered by the Board if: (a) The response is filed no later than 14 days from the date of filing of claimant's attorney's request for a specific fee under subsection (2)(a) of this rule; and (b) A copy of the response is simultaneously served upon the attorneys who appeared at hearing and on Board review in the manner provided in OAR 438-005-0046(2)(a) and proof of such service is provided in accordance with 438-005-0046(2)(b). (4) A request or response that does not comply with this rule shall not be considered by the Board in determining the amount of a reasonable assessed fee. Statutory/Other Authority: ORS 654.025(2) & ORS 656.726(5) Statutes/Other Implemented: ORS 656.382(2), 656.386(1) & 656.388(3) History: WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 1-1992, f. 3-5-92, cert. ef. 4-6-92
438-015-0030 Attorney Fees When There is No Hearing If an attorney is instrumental in obtaining compensation for a claimant without a hearing before an Administrative Law Judge, a reasonable attorney fee may be approved or assessed. The amount of the fee shall be determined by an Administrative Law Judge or by agreement of the parties. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 656.386(1)(2) History: WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0033 Attorney Fee Award Under ORS 656.262(14)(a) (1) In accordance with ORS 656.262(14)(a), a reasonable hourly rate for an attorney’s actual time spent during a personal or telephonic interview or deposition conducted under that statute is 350. The maximum attorney fee awarded under this section is subject to an annual adjustment on July 1 as calculated by the Workers’ Compensation Division (on behalf of the Director) by the same percentage increase as made to the average weekly wage defined in ORS 656.211, if any. Before July 1 of each year, the Board by bulletin, will publish the maximum fee, after adjusting the fee by the same percentage increase, if any, to the average weekly wage. Dollar amounts will be rounded to the nearest whole number. (2) If the claimant is represented by an attorney, the insurer or self-insured employer shall pay a reasonable attorney fee award, which is based upon the hourly rate prescribed in section (1) multiplied by the actual time spent by the attorney during the personal or telephonic interview or deposition conducted under ORS 656.262(14)(a). (3) To obtain the attorney fee described in section (2), the claimant’s attorney shall submit a bill to the insurer or self-insured employer within 30 days of completion of the personal or telephonic interview or deposition. The bill, which may be submitted on a form prescribed by the Board, shall contain, but is not limited to, the following information: (a) An itemization of the actual time spent by the claimant’s attorney during the personal or telephonic interview or deposition; (b) The claimant's attorney’s signature confirming that the claimed time was actually spent during the personal or telephonic interview or deposition conducted under ORS 656.262(14)(a); and (c) A copy of the executed retainer agreement, unless previously provided. (4) If the parties disagree regarding the attorney’s bill under section (3), a party may request a hearing seeking resolution of that dispute. The resolution of disputes under this section shall be made by a final, appealable order. (5) Unless it files a request for hearing, the insurer or self-insured employer must pay the attorney fee described in section (3) as an award under this rule within 30 days of its receipt of the bill. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.262(14)(a) History: WCB 1-2020, amend filed 03/06/2020, effective 06/01/2020 WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16
438-015-0035 Attorney Fees When a Claimant Requests a Hearing on a Denied Claim If the Administrative Law Judge orders the acceptance of a previously denied claim, the Administrative Law Judge shall award a reasonable assessed fee. This rule applies to denials under OAR 438-015-0005(7). Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(5) Statutes/Other Implemented: ORS 656.386(1) & 656.388(3) History: WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0038 Attorney Fees When a Claimant Requests a Hearing on a Responsibility Denial If the claimant’s attorney appears in any proceeding regarding a responsibility denial issued under ORS 656.308(2), and actively and meaningfully participates, and finally prevails against that responsibility denial, the Administrative Law Judge shall award a reasonable assessed fee to be paid by the insurer or self-insured employer who issued the responsibility denial. Absent a showing of extraordinary circumstances, the assessed attorney fee shall not exceed $2,500. The maximum attorney fee awarded under this rule is subject to an annual adjustment on July 1 as calculated by the Workers’ Compensation Division (on behalf of the Director) by the same percentage increase as made to the average weekly wage defined in ORS 656.211, if any. Before July 1 of each year, the Board, by bulletin, will publish the maximum fee, after adjusting the fee by the same percentage increase, if any, to the average weekly wage. Dollar amounts will be rounded to the nearest whole number. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(5) Statutes/Other Implemented: ORS 656.308(2), 656.386(1) & 656.388(3) History: WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
438-015-0040 Attorney Fees When a Claimant Requests a Hearing on Extent of Permanent Disability (1) If the Administrative Law Judge awards additional compensation for permanent partial disability, the Administrative Law Judge shall approve a fee of 25 percent of the increased compensation, to be paid out of the increased compensation. (2) If the Administrative Law Judge awards compensation for permanent total disability, the Administrative Law Judge shall approve a fee of 25 percent of the increased compensation, but not more than $20,000, to be paid out of the award for permanent total disability. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.386(5) & 656.388 History: WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0045 Attorney Fees When a Claimant Requests a Hearing on Extent of Temporary Disability If the Administrative Law Judge awards additional compensation for temporary disability benefits, the Administrative Law Judge shall award a reasonable assessed attorney fee. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(5) Statutes/Other Implemented: ORS 656.383, 656.386(2) & 656.388(3) History: WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16 WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0048 Attorney Fees When a Claimant Requests a Hearing on a Claim Reclassification If a claimant requests a hearing regarding a claim reclassification order from the Workers’ Compensation Division, and the Administrative Law Judge finally determines that the claim should be classified as disabling, the Administrative Law Judge may award a reasonable assessed fee. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.386(3) History: WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16
438-015-0050 Attorney Fees in Connection with Disputed Claim Settlements (1) When a denied and disputed claim is settled under the provisions of ORS 656.289(4) and OAR 438-009-0010, an attorney fee may be approved by the Administrative Law Judge or the Board in an amount up to 25 percent of the settlement proceeds. Under extraordinary circumstances, a fee may be authorized in excess of this calculation. (2) When the settlement proceeds are to be paid in more than one payment payable within a period of more than one year from the date of approval, for purposes of approving an attorney fee under section (1) of this rule, settlement proceeds shall be calculated based on the “present value” of the total settlement proceeds. “Present value” may be represented by the actual present value of the total settlement proceeds or the purchase price of any annuity designed to fund payment of the total settlement proceeds. The parties shall provide the Board with a written statement of the “present value” of the total settlement proceeds. Statutory/Other Authority: ORS 656.388(4) & 656.726(5) Statutes/Other Implemented: ORS 656.289(4) & 656.388 History: WCB 2-2024, amend filed 08/28/2024, effective 09/03/2024 WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99 WCB 8-1991, f. 11-6-91, cert. ef. 11-7-91 WCB 6-1991(Temp), f. 8-29-91, cert. ef. 9-2-91 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0052 Attorney Fees in Connection with Claim Disposition Agreements (1) When a claim disposition agreement is approved under the provisions of ORS 656.236 and OAR 438-009-0020, an attorney fee may be approved by the Board or the Administrative Law Judge who mediated the settlement in an amount up to 25 percent of the settlement proceeds. Under extraordinary circumstances, a fee may be authorized in excess of this calculation. (2) When the agreement proceeds are to be paid in more than one payment payable within a period of more than one year from the date of approval, for purposes of approving an attorney fee under section (1) of this rule, agreement proceeds shall be calculated based on the “present value” of the total proceeds. “Present value” may be represented by the actual present value of the total agreement proceeds or the purchase price of any annuity designed to fund payment of the total agreement proceeds. The parties shall provide the Board with a written statement of the “present value” of the total agreement proceeds. Statutory/Other Authority: ORS 656.388(4) & 656.726(5) Statutes/Other Implemented: ORS 656.236(4) & 656.388 History: WCB 2-2024, amend filed 08/28/2024, effective 09/03/2024 WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99 WCB 8-1991, f. 11-6-91, cert. ef. 11-7-91 WCB 6-1991(Temp), f. 8-29-91, cert. ef. 9-2-91 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90
438-015-0055 Attorney Fees When a Claimant Requests Review by the Board (1) If a claimant requests review of an Administrative Law Judge’s order on the issue of compensation for temporary disability and the Board awards additional compensation, the Board shall award a reasonable assessed attorney fee. (2) If a claimant requests review of an Administrative Law Judge’s order on the issue of compensation for permanent disability and the Board awards additional compensation, the Board shall approve a fee of 25 percent of the increased compensation. (3) If a claimant requests review of an Administrative Law Judge’s order on the issue of compensation for permanent total disability and the Board awards additional compensation, the Board shall approve a fee of 25 percent of the increased compensation, provided that the total of fees approved by the Administrative Law Judge and the Board shall not exceed $30,000. (4) If a claimant requests review of an Administrative Law Judge’s order that upheld a denial of compensability for a claim and the Board orders the claim accepted, the Board shall assess a reasonable attorney fee to be paid by the insurer or self-insured employer to the claimant’s attorney. (5) If a claimant requests review of an Administrative Law Judge’s order that upheld a responsibility denial issued under ORS 656.308(2) and the claimant’s attorney actively and meaningfully participates in finally prevailing against the responsibility denial, the Board shall award a reasonable assessed fee to be paid by the insurer or self-insured employer who issued the responsibility denial. Absent a showing of extraordinary circumstances, the assessed attorney fee for prevailing over the responsibility denial shall not exceed $2,500. The maximum attorney fee awarded under this section is subject to an annual adjustment on July 1 as calculated by the Workers’ Compensation Division (on behalf of the Director) by the same percentage increase as made to the average weekly wage defined in ORS 656.211, if any. Before July 1 of each year, the Board, by bulletin, will publish the maximum fee, after adjusting the fee by the same percentage increase, if any, to the average weekly wage. Dollar amounts will be rounded to the nearest whole number. (6) If a claimant requests review of an Administrative Law Judge’s order regarding a claim reclassification order from the Workers’ Compensation Division, and the Board finally determines that the claim should be classified as disabling, the Board may award a reasonable assessed fee. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.308(2), 656.382, 656.383, 656.386 & 656.388 History: WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16 WCB 2-2012, f. 11-13-12, cert. ef. 1-1-13 WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10 WCB 1-1998, f. 11-20-98, cert. ef. 2-1-99 WCB 5-1987, f. 12-18-87, ef. 1-1-88