Peabody v. SAIF Corp.

Absent statutory language indicating otherwise, “a party entitled to recover attorney fees incurred in litigating the merits of a fee-generating claim also may receive attorney fees incurred in determining the amount of the resulting fee award.” TriMet v. Aizawa, 326 Or 1, 3, 403 P3d 753 (2017).

Claimant appealed a Worker’s Compensation Board ("Board") decision denying her entitlement to attorney fees. Claimant previously appealed the Board’s initial award, which the Court of Appeals reversed and remanded. On remand, Claimant sought the additional fees she incurred in the appeal, which the Board denied. Claimant assigned error to the Board’s determination that they had no statutory authority to award fees incurred during litigation of the fee amount. Claimant argued that no language in ORS 656.386(1) indicates that the legislature intended to change the general rule that litigants are entitled to reasonable fees incurred in determining an award amount. Absent statutory language indicating otherwise, “a party entitled to recover attorney fees incurred in litigating the merits of a fee-generating claim also may receive attorney fees incurred in determining the amount of the resulting fee award.” TriMet v. Aizawa, 326 Or 1, 3, 403 P3d 753 (2017). The Court reasoned that Claimant was entitled to the “fees incurred in litigating the amount of the fee award” because "there is no indication in the text and context of ORS 656.386(1) that the legislature intended to depart from" the standard practice of awarding them. The Court reasoned that in view of Shearer's Foods and Aizawa, the board erred in determining that it was not authorized to do so. REVERSED AND REMANDED.