The opinion
629
Argued and submitted May 5, 2021, affirmed February 16, 2022
In the Matter of Marvin A. McGuire,
Claimant.
Marvin A. McGUIRE,
Petitioner,
v.
SAIF CORPORATION
and Oregon State Hospital - Safety Office,
Respondents.
Workers’ Compensation Board
1702195; A171885
507 P3d 317
Claimant seeks judicial review of an order of the Workers’ Compensation
Board (board) upholding an award of insurer-paid attorney fees by an admin-
istrative law judge (ALJ) in an amount less than claimant’s attorney requested
based on documentation submitted after the hearing record closed. Claimant
seeks additional fees, contending that the board erred in affirming the ALJ’s
exercise of discretion in declining to reopen the hearing record to consider doc-
umentation of his attorney’s services submitted after the hearing record closed.
Claimant also contends that the board erred in declining to consider the doc-
umentation in the board’s own review of the ALJ’s award of fees, based on the
board’s administrative rule, OAR 438-015-0029. Held: The board did not err in
determining that the ALJ did not abuse her discretion in declining to reopen the
hearing record to consider documentation in support of an attorney fee request
submitted after the hearing record closed. The board also did not err in declin-
ing to hold that it was required to consider the post-closure documentation. The
board based its conclusion on a plausible interpretation of OAR 438-015-0029, to
which the court deferred.
Affirmed.
Charles Robinowitz argued the cause and filed the briefs
for petitioner.
Kimberly K. Shubin argued the cause for respondents. On
the brief was David L. Runner.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.*
DeVORE, S. J.
Affirmed.
______________
* Lagesen, C. J., vice DeHoog, J. pro tempore.
630 McGuire v. SAIF
DeVORE, S. J.
Claimant seeks judicial review of an order of the
Workers’ Compensation Board (board) upholding an award of
insurer-paid attorney fees by an administrative law judge
(ALJ) that was less than the amount claimant’s attorney
requested based on documentation submitted after the
hearing record closed. Claimant seeks additional fees, con-
tending that the board erred in affirming the ALJ’s order
declining to reopen the hearing record to consider the doc-
umentation of his attorney’s services submitted after the
hearing record closed, and in declining to consider the doc-
umentation in the board’s own review of the ALJ’s award
of fees. The facts are largely undisputed. On review of the
board’s order for substantial evidence and errors of law, ORS
656.298; ORS 183.482(7), (8), we conclude that the board did
not err and therefore affirm.
After a hearing, claimant prevailed over a portion of
SAIF’s denial of his hand-injury claim, so claimant was enti-
tled to an insurer-paid attorney fee under ORS 656.386(1)1
and OAR 438-015-0035.2 Claimant’s attorney had requested
attorney fees in his request for hearing, but he had not pro-
posed a specific dollar amount or, while the hearing record
was open, provided documentation of the time expended.
The ALJ’s order awarded claimant fees of $8,000 to be paid
by the insurer.
Claimant’s attorney believed that the award was
insufficient. He filed a “Motion for Additional Attorney
Fees and Costs,” along with a declaration and exhibits doc-
umenting the time spent and the attorney’s hourly rate.
He requested an award of $36,050. SAIF objected to the
1
ORS 656.386(1)(a) provides, in part:
“In all cases involving denied claims where a claimant finally prevails
against the denial in an appeal to the Court of Appeals or petition for review
to the Supreme Court, the court shall allow a reasonable attorney fee to the
claimant’s attorney. In such cases involving denied claims where the claim-
ant prevails finally in a hearing before an Administrative Law Judge or in a
review by the Workers’ Compensation Board, then the Administrative Law
Judge or board shall allow a reasonable attorney fee.”
2
OAR 438-015-0035 provides:
“If the Administrative Law Judge orders the acceptance of a previously
denied claim, the Administrative Law Judge shall award a reasonable
assessed fee.”
Cite as 317 Or App 629 (2022) 631
reopening of the record to allow consideration of the decla-
ration and accompanying exhibits.
The ALJ reconsidered the award but declined
claimant’s request to reopen the record to consider the dec-
laration and accompanying exhibits. The ALJ described the
long-established practice of the board’s Hearing Division to
award attorney fees in the order on the merits, see Greenslitt
v. City of Lake Oswego, 305 Or 530, 534, 754 P2d 570 (1988)
(noting practice), the board’s requirement that the eviden-
tiary record for an award of attorney fees be made on the
hearing record, and the board’s rule that requests made
after the hearing record is closed will not be considered.
See, e.g., Daniel L. Demarco, 65 Van Natta 1837, 1847 (2013).
The ALJ reasoned that her authority to reopen the record
for consideration of the additional materials is discretion-
ary under OAR 438-007-0025. The ALJ found that claimant
had failed to establish that the declaration and accompany-
ing exhibits could not have been submitted before the hear-
ing record closed. For those reasons, she declined to exercise
her discretion to reopen the record and declined to consider
the new material. Nonetheless, the ALJ did reconsider the
fee award under the criteria of OAR 438-015-0010,3 without
the additional material, and adhered to the award of $8,000.
3
OAR 438-015-0010(4) provides, in part:
“In any case where an Administrative Law Judge or the Board is
required to determine a reasonable attorney fee, the following factors shall
be considered:
“(a) The time devoted to the case for legal services;
“(b) The complexity of the issue(s) involved;
“(c) The value of the interest involved;
“(d) The skill of the attorneys;
“(e) The nature of the proceedings;
“(f) The benefit secured for the represented party;
“(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;
“(i) The risk in a particular case that an attorney’s efforts may go
uncompensated;
“(j) The contingent nature of the practice of workers’ compensation law;
632 McGuire v. SAIF
SAIF appealed the ALJ’s order to the board, chal-
lenging the determination of compensability. Claimant also
appealed, challenging the partial rejection of the claim
and cross-assigning error to the ALJ’s award of attorney
fees, contending that the ALJ had abused her discretion in
declining to consider the submitted declaration and accom-
panying exhibits. Claimant resubmitted those materials to
the board and requested that the board consider them in
reviewing the ALJ’s fee award, citing OAR 438-015-0029,
which provides, in part:
“(1) On Board review of an Administrative Law Judge’s
order, to assist the Board in determining the amount of
a reasonable assessed fee for services at the hearing level
and/or for services on Board review, a claimant’s attorney
may file a request for a specific fee, which the attorney
believes to be reasonable.
“(2) The request shall be considered by the Board if:
“(a) The request is filed no later than 14 days from
the date of filing of the last appellate brief under OAR
438-011-0020[.]”
As required by OAR 438-015-0029, claimant filed his
request within 14 days from the date of filing of the last
appellate brief.
The board affirmed the ALJ’s determination of com-
pensability as well as the award of attorney fees and adopted
the ALJ’s order with supplementation. Like the ALJ, the
board was not persuaded that the proposed evidence could
not have been submitted with due diligence before the hear-
ing. Thus, the board concluded, the ALJ had not abused her
discretion in declining to reopen the record to consider the
declaration and exhibits.
Then, citing its own order in Daniel L. Demarco,
65 Van Natta at 1847, the board explained that, although
it would review claimant’s declaration and associated
materials in considering its own award of attorney fees for
“(k) The assertion of frivolous issues or defenses; and
“(l) Claimant’s counsel’s contingent hourly rate, if asserted, together
with any information used to establish the basis upon which the rate was
calculated.”
Cite as 317 Or App 629 (2022) 633
claimant’s attorney’s services before the board under OAR
438-015-0029, it would not consider the materials in evalu-
ating the ALJ’s award. The board explained that, as it inter-
prets OAR 438-015-0029, the rule is directed to requests for
fees for services before the ALJ and the board when a claim-
ant first prevails before the board or succeeds in defending
compensability against an employer’s appeal to the board,4
and that the rule does not govern the board’s review of an
award made by an ALJ. The board reasoned that, although
it would consider claimant’s challenge to the ALJ’s award
of attorney fees, it would not be pursuant to OAR 438-015-
0029, and that OAR 438-015-0029 does not require that it
consider in that review declarations and exhibits that were
not made a part of the hearing record.5 The board then
4
The board noted that the rule’s enactment history shows that the rule was
intended to address attorney fee awards made at the board level when a claimant
first prevails before the board.
5
Citing its order in Daniel L. DeMarco, the board explained:
“OAR 438-015-0029(1) allows a claimant’s attorney to file with the Board
a request for a specific fee for services at hearing. However, as we explained
in our Order of Adoption, that rule was intended to address the need for infor-
mation to determine a reasonable attorney fee awardable at the Board level,
‘[e]ither in awarding a reasonable attorney fee under ORS 656.386(1) for ser-
vices at both the Hearings and Board level for finally prevailing on Board
review or in awarding a reasonable attorney fee under ORS 656.382(2) for
services on Board review for successfully defending a Referee’s order award-
ing compensation.’ WCB Admin. Order 1-1992, eff. April 6, 1992, Order of
Adoption, page 2. We further noted that such a need was not apparent at
the Hearings Division, where, ‘In those cases where a claimant’s attorney
wishes to submit additional information or the Referee desires further input
for assistance in determining the amount of a reasonable carrier-paid fee,
such information is being provided on an informal basis.’ Id.
“Thus, the purpose of OAR 438-015-0029 is to allow a claimant’s attor-
ney to assist the Board to determine a reasonable assessed fee under ORS
656.386(1), for services at both hearing and Board review for finally prevail-
ing on Board review, or under ORS 656.382(2), for services on Board review
for successfully defending an ALJ’s order. It is not designed to allow the par-
ties to submit additional information on review that was not previously pre-
sented at the hearing level, where the ALJ found the claim compensable and
awarded a reasonable attorney fee award based on the record developed at
the hearing level.
“To consider information submitted under OAR 438-015-0029 for the
first time on Board review of an ALJ’s attorney fee award would be to base
our review of an ALJ’s attorney fee determination on information that was
not available for consideration by the ALJ. We interpret our rule in a manner
that encourages parties to submit ‘attorney fee-related’ information at the
earlier stage of the process, where the ALJ may consider it, after finding a
claim compensable, in determining a reasonable attorney fee award.”
634 McGuire v. SAIF
reviewed the ALJ’s attorney fee award, but it limited its
review to the record made at the hearing, and upheld the
award of $8,000.
On judicial review, claimant contends that the
board erred in determining that the ALJ did not abuse her
discretion under OAR 438-007-0025 in declining to consider
the declaration and accompanying exhibits offered after the
hearing record had closed. Claimant further contends that,
in declining to consider the declaration and exhibits in its
review of the ALJ’s award, the board misapplied OAR 438-
015-0029. SAIF responds that OAR 438-015-0029 is not
applicable to the board’s review of an award of attorney fees
by an ALJ and that the board’s view that OAR 438-015-
0029 does not require the board to consider the post-order
declaration and accompanying exhibits in reviewing the
ALJ’s award is plausible and is entitled to deference.
As a preliminary matter, we note that the legisla-
ture has delegated broad authority to the board to “make
and declare all rules which are reasonably required in the
performance of its duties, including but not limited to rules
of practice and procedure in connection with hearing and
review proceedings,” and “standards governing the for-
mat and timing of the evidence.” ORS 656.726(5)(a). That
grant of authority extends to the rules of practice and pro-
cedure that the board has articulated by order. See Booth v.
Tektronix, Inc., 312 Or 463, 477, 823 P2d 402 (1991) (uphold-
ing the board’s authority and deferring to the board’s inter-
pretation through its orders of its own rules concerning the
admissibility of evidence resulting from prehearing commu-
nication between defense counsel and the claimant’s treat-
ing physician).
In interpreting the board’s administrative rules,
we apply the same analytical framework that we apply in
the interpretation of statutes: we consider the text of the
rule and its context, including other portions of the rule
and related laws, and the rule’s adoption history. State v.
Teixeira, 259 Or App 184, 190, 313 P3d 351 (2013). We will
defer to the board’s plausible interpretation of its own rule,
including an interpretation made in the course of applying
the rule, if it is not inconsistent with the text of the rule,
Cite as 317 Or App 629 (2022) 635
its context, or any other source of law. DeLeon, Inc. v. DHS,
220 Or App 542, 548, 188 P3d 354 (2008) (citing Don’t Waste
Oregon Comm. v. Energy Facility Siting Council, 320 Or 132,
135, 881 P2d 119 (1994)).
We first address OAR 438-007-0025, which provides:
“(1) The Administrative Law Judge may reopen the
record and reconsider his or her decision before a request
for review is filed or, if none is filed, before the time for
requesting review expires. Reconsideration may be upon
the Administrative Law Judge’s own motion or upon a
motion by a party showing error, omission, misconstruction
of an applicable statute or the discovery of new material
evidence.
“(2) A motion to reconsider shall be served on the oppo-
site parties by the movant and, if based on newly discov-
ered evidence, shall state:
“(a) The nature of the new evidence; and
“(b) An explanation why the evidence could not reason-
ably have been discovered and produced at the hearing.”
The board understands OAR 438-007-0025 to grant discre-
tion to the ALJ to reopen the record, and claimant does not
appear to dispute that interpretation. We agree that that
interpretation is not inconsistent with the rule’s text and is
plausible.
As noted, the ALJ declined to reopen the record to
consider claimant’s attorney’s declaration and the accompa-
nying exhibits. The ALJ viewed the declaration and accom-
panying exhibits as “new evidence,” and her primary justifi-
cation for declining to reopen the record was that claimant
had failed to show that the declaration and accompanying
exhibits were not available before the hearing record closed.
In claimant’s view, the declaration and accompanying exhib-
its should not have been evaluated as “evidence,” because
claimant simply provided the materials to correct the ALJ’s
error in estimating the attorney’s time and effort expended
in overturning the denial.
The declaration and accompanying exhibits were
new material that claimant asked the ALJ to consider in
evaluating the attorney fee award after the record had
636 McGuire v. SAIF
closed. In view of the board’s practice of requiring that
attorney fees be awarded in the order on the merits and its
requirement that special requests for attorney fees be pre-
sented before the hearing record is closed, we cannot say
that the board’s characterization of the materials as “new
evidence” is implausible. It is new evidence in the sense that
it provides new material for the ALJ to consider in setting
an award of attorney fees. We defer to the board’s interpre-
tation and conclude that the board did not err in treating the
declaration and accompanying exhibits as “new evidence.”
Claimant contends that, because he was not entitled
to an award of attorney fees before he had finally prevailed,
see ORS 656.386(1), he could not have presented the required
documentation to the ALJ before knowing whether he had
prevailed. We reject the contention. Claimant acknowledges
that the submission of a fee request before the record had
closed was theoretically possible. We conclude that substan-
tial evidence supports the board’s determination that claim-
ant’s attorney had not established that the fee request could
not have been provided before the hearing record closed
and before it was known whether claimant had finally pre-
vailed.6 We therefore affirm the board’s determination that
the ALJ did not abuse her discretion in not reopening the
record to admit the declaration and accompanying exhibits.
We next address claimant’s contention that the
board’s interpretation of OAR 438-015-0029 is implausible,
because, as claimant reads the rule’s text, in a challenge to
an ALJ’s award of fees, the board must consider materials
submitted pursuant to OAR 438-015-0029(2)(a). The rule
states that, to “assist the Board in determining the amount
of a reasonable assessed fee for services at the hearing level
and/or for services on Board review, a claimant’s attorney
may file a request for a specific fee, which the attorney
believes to be reasonable,” and that “the request shall be
considered by the Board” if it is filed “no later than 14 days
from the date of filing of the last appellate brief.” (Emphasis
added.) Having timely filed his request, claimant contends
6
Claimant complains that it is impractical for an attorney to take the time to
make such a request before the outcome of the hearing is known. That is a policy
argument to be made to the board.
Cite as 317 Or App 629 (2022) 637
that the board was required to consider it, along with the
declaration and accompanying exhibits.
As noted, the board interprets OAR 438-015-0029
to have a more limited application. In its order, the board
cited the rule’s Order of Adoption, which states that the
rule was intended to address “the need for information to
determine a reasonable attorney fee awardable at the Board
level,”
“[e]ither in awarding a reasonable attorney fee under ORS
656.386(1) for services at both the Hearings and Board
level for finally prevailing on Board review or in awarding
a reasonable attorney fee under ORS 656.382(2) for ser-
vices on Board review for successfully defending a Referee’s
order awarding compensation.”
In so saying, the board reasoned that the rule was adopted
to address attorney fee awards made in first instance by
the board, either for prevailing finally before the board or
for successfully defending an employer’s appeal of an ALJ’s
order, and that the rule does not govern the board’s review of
an ALJ’s award. The rule’s text is consistent with that inter-
pretation. If the rule were intended to apply to a review of an
ALJ’s award of fees, it would not state that its purpose was
“to assist the Board in determining the amount of a reason-
able assessed fee.” Additionally, when the board is reviewing
an ALJ’s award of a fee, presumably a request for a fee has
already been made, and there would be no need for the rule’s
requirement to file a request for a specific fee. We conclude
that the board’s interpretation of the rule’s purpose is con-
sistent with the rule’s text, as well as with the rule’s adop-
tion history, which explicitly describes the board’s intention.
Thus, we conclude that the board’s understanding that OAR
438-015-0029 does not govern board review of an ALJ’s
award of fees is plausible, and we defer to it.
We further reject claimant’s view that, in its review
of the ALJ’s award, the rule requires the board to consider
materials that were not a part of the hearing record. The
rule imposes no requirement that, in reviewing a fee award,
the board must consider materials not a part of the hearing
record. In short, claimant’s interpretation of OAR 438-015-
0029 expands upon the rule’s text.
638 McGuire v. SAIF
As we have noted, the board has broad authority
under ORS 656.726(5)(a) to make reasonably required rules
governing its practices and procedures in connection with
hearings and review proceedings, including standards gov-
erning the format and timing of the evidence. Those rules
may be interpreted through administrative orders. Booth,
312 Or at 477. The board’s determination that, in reviewing
an ALJ’s award of attorney fees it will only consider mate-
rials that were part of the hearing record is consistent with
ORS 656.295, which provides that board review is to be
based on the record, ORS 656.295(3), (5), and under which
the board has long held that evidence not a part of the hear-
ing record will not be considered on board review. Haribu R.
Steward, 45 Van Natta 2086 (1993) (holding that the board
will not consider any evidence that was not previously made
a part of the record).
Under its plausible interpretation of OAR 438-015-
0029, the board reasoned that it would consider claimant’s
declaration and accompanying exhibits in addressing the
fees first to be awarded by the board for prevailing before the
board, but that the declaration and materials would not be
considered in addressing claimant’s challenge to the award
by the ALJ. Additionally, the board separately considered
claimant’s contention that the ALJ’s award was insufficient
and agreed with the ALJ’s determination on reconsider-
ation that $8,000 was a reasonable attorney fee award for
claimant’s counsel’s services at the hearing level. Claimant
does not separately assign error to that determination.
Affirmed.