Attorney fees

Claimant attorney fees

Fees are awarded to claimant attorneys for the following:

1. Obtaining a reversal of a claim or benefits denial
2. Obtaining an increase in benefits
3. Preventing a decrease in benefits
4. Winning a penalty against an insurer
5. Negotiating a disputed claim settlement or CDA.

There are two types of claimant attorney fees: assessed fees and out-of-compensation fees. Assessed fees are amounts paid to the attorney that are in addition to any claimant award; they are assessed against the insurer. Out-of-compensation fees are a portion of the claimant’s award that is paid to the claimant’s attorney. Attorney fees for items 1, 2, 3, and 4 are assessed against insurers, while attorney fees for item 5 come out of award increases or settlement proceeds awarded to injured workers. However, in cases before the Workers’ Compensation Division Appellate Review Unit (Reconsideration of Closures), attorney fees for obtaining an increase in benefits (item 2) are paid out of compensation.

In January 2010, House Bill 3345 increased maximum attorney fees allowed in disputes about insurer penalties, responsibility, and medical and vocational services. It also allowed attorney fees in areas in which they had not previously been provided (late-paid disputed claim settlements, affirming closure rescissions, preventing a reduction of reconsideration awards, and appeal of classification orders). These provisions were not expected to greatly increase total claimant attorney fees.

In 2015, in response to statutory amendments adopted by HB 2764, the Workers' Compensation Board adopted rules regarding the following:

1. A worker’s attorney’s hourly rate for actual time spent during an interview or deposition conducted under ORS 656.262(14)(a)
2. A worker’s attorney’s fee for prevailing on claims for increased costs
3. Carrier-paid fees to a worker’s attorney for obtaining temporary disability benefits and disabling claim reclassifications
4. Carrier–paid fee for a worker’s attorney’s defense against a carrier’s unsuccessful challenge to all or a part of an attorney fee, penalty, or cost award
5. A worker’s attorney’s fee when a carrier withdraws a request/cross-request for board review after a carrier has filed its initial brief
   

In 2016, the Workers' Compensation Board amended its rules regarding out-of-compensation and out-of-settlement attorney fees. For permanent partial disability (PPD) awards, a worker’s attorney receives 25 percent of the increased compensation. For permanent total disability (PTD) awards, a worker’s attorney can receive 25 percent of the PTD award, not to exceed $20,000 (if the award is granted by an administrative law judge) or $30,000 (if the award is granted by the board). For a disputed claim settlement or claim disposition agreement, a worker’s attorney may receive 25 percent of the settlement proceeds up to $50,000 and 10 percent of the remaining proceeds (absent extraordinary circumstances). For temporary total disability benefits resulting from an own motion claim, a worker’s attorney receives 25 percent of the increased compensation.

The table below shows the total claimant attorney fees, as well as the total assessed fees and total out-of-compensation fees. These amounts may change over time as cases move through the litigation process. All data are reported in thousands of dollars.

The data are taken from WCD and WCB data systems. Because of data limitations, attorney fees awarded for some WCD contested cases, board own motion cases, Court of Appeals, and Supreme Court cases are not included in these figures.

Workers' compensation total claimant attorney fees ($ thousands)

The next table provides details of the assessed fees, Included are the assessed fees from the WCB hearings and board review, and, from 2004, the assessed fees from WCD medical review and vocational assistance cases.

Workers' compensation assessed claimant attorney fees ($ thousands)

The next table provides details of the out-of-compensation fees, Included are the out-of-compensation fees from the WCB hearings, board review, claim disposition agreements, and WCD reconsiderations.

Workers' compensation out-of-compensation claimant attorney fees ($ thousands)

Insurer attorney fees

Oregon Revised Statute 656.388(7) requires insurers and self-insured employers to report their attorney salaries and other costs of workers’ compensation legal services. The department collects these data in an annual survey of the workers’ compensation insurers and self-insured employers.

Insurer defense costs are primarily costs associated with defending themselves against claims or benefits believed to be unwarranted. They may also include costs to represent the insurer in responsibility disputes (in which outcomes may not directly affect workers) and for services outside of litigation (such as negotiating claim disposition agreements).

Defense legal costs differ from claimant attorney fees in several ways: 

• They are the actual amounts paid in total rather than the amounts awarded by the board or court, or set forth in a statute or rule
• They are not reversible on appeal
• There may be fees paid to multiple attorneys on a single dispute
• The fees reported are the total by firm and not on a per-claim basis
  

Workers' compensation defense legal costs ($ thousands)