justicedao/ipfs_state_laws huggingface dataset:
438-015-0065 Attorney Fees When Insurer or Self-Insured Employer Requests a Hearing (1) If an insurer or self-insured employer requests a hearing or otherwise seeks a reduction in compensation and the Administrative Law Judge finds that all or part of the compensation awarded to the claimant should not be disallowed or reduced, the Administrative Law Judge shall award a reasonable assessed fee to the claimant’s attorney. (2) If an employer or insurer raises attorney fees, penalties or costs as a separate issue in a request for hearing, and the Administrative Law Judge finds that the attorney fees, penalties or costs awarded to the claimant should not be disallowed or reduced, the Administrative Law Judge shall award reasonable additional attorney fees to the attorney for the claimant for efforts in defending the fee, penalty or costs. (3) If an insurer or self-insured employer requests a hearing regarding a reconsideration order rescinding a notice of closure, and the Administrative Law Judge finds that the reconsideration order should not be reversed, the Administrative Law Judge shall award a reasonable assessed fee to the claimant’s attorney. (4) If an insurer or self-insured employer requests a hearing regarding a reconsideration order, and the ALJ finds that all or part of the compensation awarded by the reconsideration order issued under ORS 656.268 should not be reduced or disallowed, the Administrative Law Judge shall award a reasonable assessed fee to the claimant’s attorney. (5) If an insurer or self-insured employer 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 656.382, 656.386 & 656.388 History: WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16 WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0070 Attorney Fees When Insurer or Self-Insured Employer Requests or Cross-Requests Review by the Board (1) If an insurer or self-insured employer requests or cross-requests review of the Administrative Law Judge's order and the Board finds that all or part of the compensation awarded to the claimant should not be disallowed or reduced, the Board shall award a reasonable assessed fee to the claimant’s attorney. (2) If an employer or insurer raises attorney fees, penalties or costs as a separate issue in a request for review, and the Board finds that the attorney fees, penalties or costs awarded to the claimant should not be disallowed or reduced, the Board shall award reasonable additional attorney fees to the attorney for the claimant for efforts in defending the fee, penalty or costs. (3)(a) If an insurer or self-insured employer requests or cross-requests review of the Administrative Law Judge’s order and the matter is briefed, but the insurer or self-insured employer withdraws the appeal prior to a decision by the Board, resulting in the claimant’s prevailing in the matter, the Board shall award a reasonable assessed fee for the claimant’s attorney’s efforts in briefing the matter to the Board. (b) A matter is considered “briefed” when the insurer or self-insured employer has filed its initial brief. (4) If an insurer or self-insured employer requests or cross-requests review of the Administrative Law Judge’s order regarding a reconsideration order rescinding a notice of closure, and the Board finds that the reconsideration order should not be reversed, the Board shall award a reasonable assessed fee to the claimant’s attorney. (5) If an insurer or self-insured employer requests or cross-requests review of the Administrative Judge’s order regarding a reconsideration order, and the Board finds that all or part of the compensation awarded by the reconsideration order issued under ORS 656.268 should not be reduced or disallowed, the Board shall award a reasonable assessed fee to the claimant’s attorney. (6) If an insurer or self-insured employer requests or cross-requests review of the 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 656.382, 656.386 & 656.388 History: WCB 1-2015, f. 12-16-15, cert. ef. 1-1-16 WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0080 Attorney Fees in Own Motion Cases (1) If an attorney is instrumental in obtaining increased temporary disability compensation, the Board shall approve a fee of 25 percent of the increased compensation, to be paid out of the increased compensation. (2) If an attorney is instrumental in obtaining a voluntary reopening of an Own Motion claim that results in increased temporary disability compensation, the Board shall approve a fee of 25 percent of the increased compensation, to be paid out of the increased temporary disability compensation resulting from the voluntary reopening. (3) If the Board awards additional compensation for permanent disability, the Board shall approve a reasonable attorney fee in the amounts prescribed in OAR 438-015-0040, payable out of the increased compensation. (4) The Board may allow a fee in excess of the amounts prescribed in sections (1) through (3) of this rule upon a finding that extraordinary services have been rendered. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.267(3), 656.278(1), 656.386(1)(2) & 656.388 History: WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08 WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03 WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02 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 2-1990, f. 1-24-90, cert. ef. 2-28-90 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1990, f. 1-24-90, cert. ef. 2-28-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0082 Timely Payment of Attorney Fees (1) An approved attorney fee shall be paid within the time required for payment of the compensation out of which the approved fee is to be paid. (2) An assessed attorney fee shall be paid within 14 days of the date the order authorizing the fee becomes final. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & ORS 656.726(5) Statutes/Other Implemented: ORS 656.382(1), 656.386(1)(2) & 656.388 History: WCB 2-2016, f. 10-13-16, cert. ef. 11-1-16 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0085 Payment of Attorney Fees Out of Compensation; Fee Not Subject to Offset (1) If the claimant consents in the attorney retainer agreement, the Administrative Law Judge or the Board may order the payment of approved attorney fees directly to the claimant’s attorney in a lump sum when the fee is to be paid out an award of compensation for permanent disability. The lump sum shall not be due until the award of compensation becomes final. (2) An attorney fee which has been authorized under these rules to be paid out of increased compensation awarded by a Administrative Law Judge, the Board or a court shall not be subject to any offset based upon prior overpayment of compensation to the claimant. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.386(2) & 656.388(3) History: WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0090 Attorney Fees in Proceeding Under ORS 656.307 If the claimant appears in any proceeding under ORS 656.307 and actively and meaningfully participates through an attorney, the Administrative Law Judge may require the payment of a reasonable assessed fee to be paid by the insurer or self-insured employer determined by the Administrative Law Judge to be the party responsible for paying compensation. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.307(5) & 656.388(3) History: WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-015-0095 Attorney Fees in Third-Party Cases Unless otherwise ordered by the Board after a finding of extraordinary circumstances, an attorney fee not to exceed 33-1/3 percent of the gross recovery obtained by the plaintiff in an action maintained under the provisions of ORS 656.576 through 656.596 is authorized. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(5) Statutes/Other Implemented: ORS 656.593(1)(a) & 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
438-015-0110 Attorney Fees in Cases Involving ORS 656.262(11)(a) If the Director, an Administrative Law Judge, the Board, or the Court find that the insurer or self-insured employer unreasonably delayed or unreasonably refused to pay compensation, attorney fees or costs, or unreasonably delayed acceptance or denial of a claim an assessed attorney fee shall be awarded in a reasonable amount that: (1) Considers the proportionate benefit to the claimant; (2) Takes into consideration the factors set forth in OAR 438-015-0010(4), giving primary consideration to the results achieved and to the time devoted to the case; and (3) Does not exceed $4,000, absent a showing of extraordinary circumstances. 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. Statutory/Other Authority: ORS 656.283, 656.388 & 656.726(5) Statutes/Other Implemented: ORS 656.262(11)(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 1-2009, f. 10-7-09, cert. ef. 1-1-10 WCB 3-2003, f. 12-12-03 cert. ef. 1-1-04
438-015-0115 Fees for Attorneys Representing Insurers and Self-Insured Employers A requested client paid fee shall: (1) Be reasonable, considering the factors prescribed in OAR 438-015-0010(4), to the extent such factors are relevant to a client-paid fee; and (2) Not exceed that agreed upon in the retainer agreement. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.388(4), (5) History: WCB 1-2020, adopt filed 03/06/2020, effective 06/01/2020
438-015-0125 Bifurcation of Attorney Fee Award (Board Review ) (1) The determination of the Board’s reasonable assessed attorney fee award under ORS 656.382(2), ORS 656.383, or ORS 656.386(1) shall be bifurcated from the underlying claim if: (a) A request for Board review of an Administrative Law Judge’s order has been filed; (b) Within 14 days of the expiration of the briefing schedule, the claimant files a request for bifurcation of the Board’s attorney fee award as described in section (1); and (c) The Board reaches a decision that entitles the claimant’s counsel to a reasonable assessed attorney fee award under one or more of the statutes described in section (1). (2) If the requirements in section (1) have been satisfied, the Board’s order will award a reasonable assessed attorney fee award without specifying the amount thereof. The Board’s order will also identify a separate WCB Case Number that pertains to the "bifurcated" attorney fee award. (3) Within 60 days after the Board order under section (2) becomes final, the claimant’s counsel may file a written statement specifying a proposed amount for the reasonable attorney fee award, including a description of how the factors set forth in OAR 438-015-0010(4) support the proposed fee. (4) Upon the filing of the claimant’s counsel’s statement under section (3), the Board will acknowledge the statement. The insurer’s/self-insured employer’s response, if any, to the claimant’s counsel’s statement shall be filed within 21 days from the date of mailing of the Board’s acknowledgment letter. The claimant’s reply, if any, shall be filed within 14 days from the date of filing of the insurer’s/self-insured employer’s response. After conducting an expeditious review, the Board will determine the amount for the reasonable assessed attorney fee award in a final, appealable order. (5) If the parties reach agreement regarding the amount of a reasonable assessed attorney fee award, a stipulation (which pertains to the assigned WCB Case Number described in section (2)) may be filed with the Board. The Board’s approval of the parties’ stipulation will be contained in a final order, which will specify that the award shall be paid within 14 days of the order. Statutory/Other Authority: ORS 656.307, ORS 656.388(4), (5) & ORS 656.726 Statutes/Other Implemented: ORS 656.308, ORS 656.382, ORS 656.383 & ORS 656.386 History: WCB 2-2020, adopt filed 08/19/2020, effective 10/01/2020
438-016-0005 Request for Board Review (1) A request for Board review of a Director's order finding no bona fide medical services dispute shall be filed in accordance with OAR 438-005-0046(1). (2) Copies of a request for Board review of the Director's order should be simultaneously mailed to the Director, all parties to the Director's order, and to their attorneys, if represented by an attorney. The request should recite the name of the claimant, the identity of the party requesting review and contain a brief statement of the reason review is requested. However, the failure to comply with this section shall not be cause for dismissal of the request for review. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.327(1)(b) & 656.726(5) History: WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13 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
438-016-0010 Acknowledgment of Request for Review; Record (1) The Board shall notify the parties and the Director of its receipt of the request for review. This acknowledgment shall also notify the parties of the implementation of a briefing schedule which will become effective upon the Director’s mailing of the record. (2) Not later than 30 days after mailing of the Board’s acknowledgment, the Director shall file with the Board a certified copy of the entire record, including an index of all items contained in the record. The Director shall simultaneously mail to the parties, or where a party is represented by an attorney, the party’s attorney, a certified copy of the record. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 656.327(1)(b) & 656.726(4) 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 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90
438-016-0015 Scope of Review (1) Review by the Board shall be for substantial evidence in the record in accordance with ORS 656.327(1)(b). The Board shall set aside or remand the order only if it finds that the order is not supported by substantial evidence in the record. (2) The Board will not ordinarily entertain oral argument. All issues and arguments should be reduced to writing and filed pursuant to OAR 438-016-0020. The case will be reviewed in the ordinary course of business without prior notice to the Director or the parties of the date or time of review. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.327(1)(b) History: 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
438-016-0020 Briefs and Other Documents (1) Filing of briefs is not jurisdictional; however the Board views briefs as a significant aid to the review process. Briefs submitted for consideration by the Board shall comply with this section. (2) Briefs shall be filed in accordance with OAR 438-011-0020(2), except that the briefing schedule shall begin upon the date of mailing of the Director’s certified copy of the record to the Board. (3) Requests for extensions of time for filing of briefs will be processed in accordance with OAR 438-011-0020(3). Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.327(1)(b), 656.726(4), 656.327(1)(b) & 656.726(4) History: 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
438-016-0025 Board Decision; Reconsideration; No Further Review (1) The Board’s decision shall be mailed to the Director, all parties, and their attorneys. (2) Upon its own motion or the request of any interested party, within 30 days after a final decision of the Board, the Board may withdraw its decision for reconsideration. On reconsideration, the Board may affirm its previous decision, issue a new order or make such other disposition of the case as it deems justified pursuant to ORS 656.327(1)(b). (3) An order on reconsideration shall contain the following notice: “NOTICE TO ALL PARTIES: This order is final and is not subject to further reconsideration or review by any other court or administrative agency.” Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.327(1)(b) History: 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
438-019-0000 Special Definitions (1) Mediation. Mediation is a voluntary process for resolving disputes by which an independent neutral third person, in the role of mediator, assists two or more parties to a controversy in reaching a mutually acceptable resolution. For purposes of OAR chapter 438, division 019, mediation does not pertain to dispute resolution governed by ORS 656.307(6). (2) Mediator. A mediator is an independent neutral third person whose role is to assist the parties in resolving their dispute by mutual agreement. The mediator has no authority to decide the outcome of the controversy or to force settlement upon the parties. The mediator, for purposes of these rules, is an employee of the Workers’ Compensation Board, with the authority of an Administrative Law Judge, who satisfies the qualifications prescribed in OAR 438-019-0010(1) and (2). (3) Party. For purposes of OAR chapter 438, division 019, party means any person identified in 438-005-0040(10) and any other person identified by the mediator as necessary to the mediation. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4) History: WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02 WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97
438-019-0010 Mediator Qualifications (1) A mediator shall have completed at least 30 hours of basic mediation training and hold a certificate demonstrating such training. (2) Such training described in section (1) of this rule shall address the following areas: (a) Active listening, empathy and validation; (b) Sensitivity to and awareness of cross-cultural issues; (c) Maintaining neutrality; (d) Identifying and reframing interests and issues; (e) Establishing trust and respect; (f) Using techniques to achieve agreement and settlement, including creating a climate conducive to resolution, identifying options, working toward agreement, and reaching consensus; (g) Shaping and writing agreements; and (h) Ethical standards for mediator conduct adopted by state and national organizations. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.012(2)(b), 656.283(1), (9) & 656.289(4) History: WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13 WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97
438-019-0020 Standards of Mediator Conduct (1) Mediators have duties to the parties, to their profession, and to themselves. They should be honest and unbiased, act in good faith, be diligent, and never seek to advance their own interests at the expense of the parties. (2) The mediator must maintain impartiality toward all parties. Impartiality means a commitment to serve all mediation parties as opposed to a single party. The mediator should disclose to the parties any affiliations which the mediator may have with any participant and obtain all parties’ consent to proceed as mediator. (3) The mediator has an obligation to assure that all parties understand the nature of the mediation process, the procedures to be utilized, and the particular role of the mediator. Each party’s consent to proceed with mediation should be obtained early, prior to the beginning of substantive negotiations. (4) The mediator shall inform the parties of their rights to withdraw from mediation at any time and for any reason. If the mediator believes that the parties are unable or unwilling to participate effectively in the mediation process, the mediator should suspend or terminate the mediation. If the parties reach a final impasse, the mediator should not prolong unproductive discussions. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4) History: WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97
438-019-0030 Confidentiality (1) Unless there is a written agreement otherwise, any communication made in mediation which relates to the controversy being mediated is confidential. (2) The mediator shall create and maintain a separate mediation file. All memoranda, work product, and other materials contained in the mediation file are confidential. (3) The names and case numbers of cases for which mediation has been requested and the outcomes of those mediations are not confidential. (4) Any mediation agreement that requires approval by the Administrative Law Judge who mediated the agreement or the Board pursuant to ORS Chapter 656 and OAR chapter 438 shall not be confidential. (5) Statements, memoranda, materials, and other tangible evidence that are subject to discovery under the Board's Rules of Practice and Procedure are not confidential unless they were prepared specifically for use in mediation. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4) History: WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08 WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97
438-019-0040 Standards of Conduct for Attorneys and Parties (1) Attorneys representing parties in mediation shall know the facts, the applicable law and the issues involved in their case, and understand the interests and needs of their clients which may affect the mediation process. (2) Attorneys representing parties in mediation shall come to the mediation with authority to settle the issues or bring with them that person or those persons who have such authority. (3) By consenting to mediation, all parties agree to bargain in good faith. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4) History: WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97
438-019-0050 Requests for Mediation (1) The parties shall notify the Presiding Administrative Law Judge or designee of their desire to mediate their controversy. The parties may select a mediator from an approved list maintained by the Hearings Division. If the parties do not indicate a choice of mediator or cannot agree, a mediator may be selected by the Presiding Administrative Law Judge or designee. (2) Persons who are not parties to a mediation may be included in mediation discussions with the consent of the mediator and the parties. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4) History: WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97