44 Trial Lawyer • Summer 2023 Comp Corner In any case where an administrative law judge or the Board is required to determine a reasonable attorney fee, the following newer, amended factors of OAR 438-015-0010(4) shall be considered: (a) the time devoted to the case for legal services; *** (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; *** (j) the contingent nature of the practice of workers’ compensation law; *** (l) the claimant’s counsel’s contingent hourly rate, if asserted, together with any information used to establish the basis upon which the rate was calculated. Details The Board has allowed as a factor (a) the time that includes legal assistant/ paralegal services, by adding “for legal services.” This factor does not require evidence of the specific amount of time or a finding of the specific amount of time. SAIF v. May, 193 Or App 515, 526 (2004). Thus, one may rely on a description of the work done to reflect the “time devoted” factor. The application and interpretation of “the broadest access to attorneys” factor, (g), is not quite clear, yet. See Michelle L. Showalter, 74 Van Natta 364, 267 (2022). One would believe that this By Julene Quinn OTLA Guardian There is a debate among practitioners about whether to ask for a specific fee at each hearing. Sometimes, the other side does not object, and the ALJ will award what is requested. The courts, generally, will simply enter an order approving a requested fee that has no objection on the other side. So, this practice is absolutely appropriate. However, when a hearing is lost and the case is on appeal, if a specific amount was requested, it is harder to argue later for an updated fee, and practitioners are more often stuck with the outdated fee. If a range were requested, it is easier to ask for the higher end of the range. Regardless of your strategy in a particular case, one thing practitioners should do is provide a brief statement of facts for the factors relevant to determining a reasonable attorney fee. These factors are contained in OAR 438-015-0010(4). Changes While we all may be able to recite the attorney fee factors in our sleep, there have been some recent amendments. A simple statement on the factors that impact fees the most is always helpful in the record. A formal statement of services is not required. See Julie Hooks, 74 Van Natta 196 (2022). Attorney Fee Factors Issues & Topics for the Workers’ Compensation Attorney Julene Quinn encompasses various concepts, including paying fees competitive with other legal practices, so attorneys will choose to represent injured workers. It might also include the concept that fees awarded should sufficiently compensate all work, even when the value is smaller, to allow access to attorneys when a smaller amount is at issue. The contingent nature of the practice and consideration of defense fees (factors (h) and (j)) are meant to reduce the gap between fees paid to defense firms and those to claimants’ attorneys. The goal is to reduce the tendency of new attorneys to hire with or transfer to defense firms, and help build the dwindling ranks of claimants’ firms. Hourly rate The consideration of a contingent hourly rate is something more applicable to appellate matters, where it is easier to track hours spent on a brief. At the hearing level, trying to capture the time one receives or answers an email, talks to a client, reviews discovery or calls a doctor’s office, is very difficult and limits time available for representation. Hopefully, these additions to the rules will assist attorneys representing injured workers to increase the historically low attorney fees. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Quinn & Heus LLC, 4504 S. Corbett, Portland, OR 97239. She can be reached at julene.m.quinn@gmail.com or 503575-1253.
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