Cayton v. Safelite Glass Corp.

Success in obtaining penalty-based attorney fees under ORS 656.262(11) for delay in payment of compensation does not mandate an award of compensation-based attorney fees under ORS 656.382(1).

Cayton v. Safelite Glass Corp. arises from a Workers' Compensation Board order that awarded claimant a penalty for employer's untimely payment of a lump sum due to claimant, but reduced claimant's previous award of attorney fees from $8,325 to $1,500, and rejected additional attorney fees under ORS 656.382(1). Claimant suffered an occupational disease that was found compensable and requested a lump sum payment from employer. Employer had 14 days to respond to the request, but failed to do so. Although the employer failed to make timely payment, there was no evidence on the record that the employer refused to pay claimant's compensation. To the contrary, employer made monthly payments of benefits to claimant. Thus, claimant was not entitled to penalty-based attorney fees for a refusal to pay compensation. The board ordered employer to pay $1500 in penalty-related attorney fees for delaying payment of claimant's benefits. The board correctly refused to award additional attorney fees to claimant under ORS 656.382(1) because employer did not actually refuse to pay claimant. Employer merely failed to make a timely payment or refer claimaint's request for payment to the director within 14 days as required by ORS 656.230(1). Claimant's success in receiving penalty-based attorney fees for employer's delay in payment did not mandate an award of compensation-based attorney fees. However, the board's reduction of claimant's penalty-related attorney fees from $8,325 to $1,500 was overturned because the board's findings were inadequate for purposes of reducing claimant's award. Remanded for an award of $8,236.25 in attorney fees and for reconsideration of penalty-related attorney fees under ORS 656.262(11); otherwise affirmed.