Arvidson v. Liberty Northwest Ins. Corp.

693

Argued and submitted January 15; decision of Court of Appeals reversed, order

of Workers’ Compensation Board reversed, and case remanded to Workers’

Compensation Board for further proceedings July 16, 2020

In the Matter of the Compensation of

Danny E. Arvidson, Claimant.

Danny E. ARVIDSON,

Petitioner on Review,

v.

LIBERTY NORTHWEST

INSURANCE CORPORATION

and Beall Transport Equipment,

Respondents on Review.

(WCB 1605828) (CA A166091) (SC S066746)

467 P3d 741

Claimant was awarded permanent total disability. Insurer requested a hear-

ing before an administrative law judge (ALJ) to review the compensation award.

Claimant moved to dismiss the hearing request as untimely and requested an

assessed attorney fee pursuant to ORS 656.382(2). The ALJ granted claimant’s

motion to dismiss, finding that insurer’s request for hearing was time-barred,

and awarded claimant attorney fees under ORS 656.382(2). The Workers’

Compensation Board affirmed the ALJ’s dismissal of the hearing request, but it

reversed the attorney fee award. The Court of Appeals affirmed without a written

opinion. Held: The ALJ’s dismissal of insurer’s request for hearing as untimely

entitled claimant to attorney fees under ORS 656.382(2).

The decision of the Court of Appeals is reversed. The order of the Workers’

Compensation Board is reversed, and the case is remanded to the Workers’

Compensation Board for further proceedings.

En Banc

On review from the Court of Appeals.*

Julene M. Quinn, Portland, argued the cause and filed

the briefs for petitioner on review.

Christo de Villiers, Portland, argued the cause and filed

the brief for respondents on review.

Theodore P. Heus, Preston Bunnell, LLP, Portland, filed

the brief for amicus curiae Oregon Trial Lawyers Association.

______________

* Judicial review from a final order of the Workers’ Compensation Board. 297

Or App 192, 440 P3d 685 (2019).

694 Arvidson v. Liberty Northwest Ins. Corp.

GARRETT, J.

The decision of the Court of Appeals is reversed. The

order of the Workers’ Compensation Board is reversed, and

the case is remanded to the Workers’ Compensation Board

for further proceedings.

Cite as 366 Or 693 (2020) 695

GARRETT, J.

This workers’ compensation case concerns the

availability of attorney fees under ORS 656.382(2). After

claimant received an award of permanent total disability,

insurer Liberty Northwest Insurance Corporation (insurer)

requested a hearing before an administrative law judge

(ALJ) to review the award. The ALJ dismissed insurer’s

hearing request as time-barred. The question on review is

whether that dismissal entitled claimant to attorney fees

under ORS 656.382(2), which provides that, if an insurer

initiates review of a compensation award and the reviewing

body “finds that * * * all or part of the compensation awarded

* * * should not be reduced or disallowed,” the insurer shall

pay the claimant’s attorney a “reasonable attorney fee.” The

ALJ determined that the statute applied to the dismissal of

insurer’s claim and awarded fees to claimant. The Workers’

Compensation Board (board) reached a different conclusion

and reversed that decision. The Court of Appeals affirmed

without opinion. We allowed review and now reverse.

I. LEGAL BACKGROUND

“In workers’ compensation cases, an award of attor-

ney fees can be made only pursuant to statutory authoriza-

tion.” SAIF v. Allen, 320 Or 192, 200, 881 P2d 773 (1994).

One statute that authorizes attorney fees is ORS 656.382(2).1

It provides, in part:

“If a request for hearing, request for review, appeal

or cross-appeal to the Court of Appeals or petition for

review to the Supreme Court is initiated by an employer or

insurer, and the Administrative Law Judge, board or court

finds that * * * all or part of the compensation awarded by

a reconsideration order issued under ORS 656.268 should

1

ORS 656.382(2) has been amended twice since claimant was injured. See

Or Laws 2015, ch 521, § 5; Or Laws 2009, ch 526, § 3. However, because the order

at issue here was issued after those amendments became effective, they apply

here. See Or Laws 2015, ch 521, § 11 (“[T]he amendments to * * * [ORS] 656.382

* * * by sections 1 to 8 of this 2015 Act apply to orders issued and attorney fees

incurred on or after the effective date of this 2015 Act, regardless of the date on

which the claim was filed.”); Or Laws 2009, ch 526, § 6 (“Regardless of the date of

injury, the amendments to * * * [ORS] 656.382 * * * by section[ ] * * * 5 of this 2009

Act apply to all claims for which an order is issued on or after the effective date

of this 2009 Act.”). Thus, unless otherwise noted, we refer to the current version

of the statute in this opinion.

696 Arvidson v. Liberty Northwest Ins. Corp.

not be reduced or disallowed, the employer or insurer shall

be required to pay to the attorney of the claimant a reason-

able attorney fee * * * for legal representation by an attor-

ney for the claimant at and prior to the hearing * * *.”

ORS 656.382(2). Thus, “[o]n its face, ORS 656.382(2) imposes

three requirements for an award of attorney fees: (1) a claim-

ant must have received an award of benefits; (2) an employer

or insurer must have initiated one of the listed forms of

requests for review; and (3) one of the listed tribunals must

have concluded that the award of compensation should not

be disallowed or reduced.” SAIF v. DeLeon, 352 Or 130,

133-34, 282 P3d 800 (2012) (footnote omitted).

This case concerns the meaning of the third statu-

tory predicate, which this court has construed twice before.

First, in James v. SAIF, 290 Or 849, 851, 626 P2d 881 (1981),

the insurer sought review of a Court of Appeals decision

affirming the claimant’s compensation award. This court

allowed review and remanded to the Court of Appeals with

instructions to make a finding regarding the causation of

the claimant’s condition. Id. The claimant then petitioned

this court for attorney fees, arguing that she was entitled to

fees under ORS 656.382(2) (1979). Id. In a three-paragraph

per curiam opinion, we disagreed, stating that, even assum-

ing other statutory conditions were met, in remanding to

the Court of Appeals, “this court did not find ‘that the com-

pensation awarded to * * * claimant should not be disallowed

or reduced * * *.’ We did not decide either of those issues but

remanded the case.” Id. (quoting ORS 656.382(2) (1979)

(ellipses in James)).

Subsequently, in SAIF v. Curry, 297 Or 504, 507,

686 P2d 363 (1984), the insurer unsuccessfully sought this

court’s review of a Court of Appeals decision affirming the

board’s determination that the claimant was permanently

and totally disabled. After we denied review, the claimant

petitioned for attorney fees under ORS 656.382(2) (1983).

Id. at 507. The insurer opposed that fee petition, arguing

that, in denying a petition for review, we did not find that the

compensation awarded should not be disallowed or reduced

and, therefore, we lacked authority to award fees to the

claimant. Id. at 508. As discussed in greater detail below,

366 Or at 706-07, we agreed with the insurer, concluding

Cite as 366 Or 693 (2020) 697

that ORS 656.382(2) (1983) did not allow attorney fees to

be awarded when we deny an insurer’s petition for review.

Curry, 297 Or at 511.

Shortly after Curry, the Court of Appeals consid-

ered whether its dismissal of an insurer’s petition for judi-

cial review triggered the attorney fee provision. Agripac,

Inc. v. Kitchel, 73 Or App 132, 134, 698 P2d 69 (1985). The

Court of Appeals held that, “when an employer or insurer’s

petition for judicial review is dismissed without a finding

that the compensation awarded to a claimant should not

be disallowed or reduced, the claimant is not entitled to an

award of attorney fees.” Id. at 135 (internal quotation marks

omitted). In reaching that decision, the court reasoned that

it was “unable to find any meaningful distinction between

the issue [presented] and [the issue] in Curry.” Id.

With that background in mind, we turn to the facts

of this case.

II. FACTS

Claimant sustained a compensable injury to both

of his shoulders. In June 2016, insurer issued a Notice of

Closure, awarding claimant 91 percent unscheduled per-

manent partial disability. Claimant sought reconsideration

of that Notice of Closure, and, in a subsequent order dated

November 21, 2016, the Appellate Review Unit (ARU) of the

Department of Consumer and Business Services awarded

him permanent total disability.

On December 27, 2016, the board received the insur-

er’s request for a hearing before an ALJ to review the ARU’s

compensation award. Claimant moved to dismiss that hear-

ing request as untimely under ORS 656.268(6)(g) and ORS

656.319(4),2 which require that a request for hearing be

filed within 30 days after the copies of the reconsideration

order are mailed to the parties. Claimant also requested an

assessed attorney fee pursuant to ORS 656.382(2).3

2

Both ORS 656.268 and ORS 656.319 have been amended since claimant

was injured; however, because those amendments do not affect our analysis, we

refer to the current version of those statutes in this opinion.

3

An “assessed fee” “means an attorney fee paid to a claimant’s attorney by

an insurer or self-insured employer in addition to compensation paid to a claim-

ant.” OAR 438-015-0005(2) (June 1, 2020).

698 Arvidson v. Liberty Northwest Ins. Corp.

Following a hearing limited to the issue of timeli-

ness, the ALJ issued an Order and Opinion granting claim-

ant’s motion to dismiss and awarding him attorney fees.

First, the ALJ found that “insurer failed to request a hear-

ing within 30 days of the date of mailing of the Order on

Reconsideration,” as required by ORS 656.268(6)(g) and ORS

656.319(4). “Consequently, the Order on Reconsideration

[was] final by operation of law, and the insurer’s request

for hearing [was] dismissed.” As to attorney fees, the ALJ

explained that ORS 656.382(2)

“does not distinguish between a hearing on the merits and

a dismissal based on an untimely request for hearing. The

only requirements are that the insurer initiate a request

[for] a hearing and that claimant’s compensation is nei-

ther reduced nor disallowed. Since the insurer initiated a

request for hearing and claimant’s compensation has not

been reduced or disallowed, I conclude that claimant is

entitled to an assessed attorney fee in this case.”

Insurer then appealed to the board. The board

affirmed the ALJ’s dismissal of the hearing request, but it

reversed the attorney fee award. Danny E. Arvidson, 69 Van

Natta 1434 (2017). In doing so, the board relied on its rea-

soning in Timothy L. Williams, 46 Van Natta 2274 (1994),

which, in turn, had relied on the Court of Appeals decision

in Agripac, Inc., 73 Or App 132. See Williams, 46 Van Natta

at 2276 (Agripac, Inc. “supports the proposition that, when

a request for [b]oard review is dismissed without a decision

on the merits, we are without authority to award attorney

fees under ORS 656.382(2)”). The board explained that,

under Williams, “to constitute a finding that the compen-

sation awarded to the claimant should not be disallowed

or reduced for purposes of [ORS 656.382(2)], such a finding

must be made on the merits of the claim.” Arvidson, 69 Van

Natta at 1435 (internal quotation marks omitted).

The board then explained that, because the insur-

er’s hearing request was dismissed as untimely, “no find-

ing was made on the merits [of] claimant’s compensation

award[ ],” and claimant therefore was “not entitled to an

attorney fee under ORS 656.382(2).” Id. at 1436.

Claimant petitioned for judicial review, and the

Court of Appeals affirmed without opinion. Arvidson v.

Cite as 366 Or 693 (2020) 699

Liberty Northwest Ins. Corp., 297 Or App 192, 440 P3d 685

(2019).

Claimant sought review, which we allowed.

III. DISCUSSION

As noted earlier, the dispute below concerned two

issues: first, whether insurer’s request for hearing was

untimely, and second, if it was, whether claimant was enti-

tled to attorney fees under ORS 656.382(2) for successfully

obtaining the dismissal of insurer’s request. On review, the

first issue is not before us. The only question presented to

this court is whether the dismissal of insurer’s request on

timeliness grounds falls within the statutory phrase “finds

that * * * all or part of the compensation awarded * * * should

not be reduced or disallowed” in ORS 656.382(2). Put another

way, the question is whether the board was correct in hold-

ing that such a dismissal does not qualify for fees because it

is not a decision “on the merits.” We interpret the board’s use

of the phrase “on the merits” to refer to a decision that deals

with the facts and substantive law underlying the compen-

sation award, as opposed to a decision resolving the matter

on a purely procedural ground.

The parties’ arguments on review turn on the mean-

ing of the word “finds” and on the import of Curry. Claimant

and amicus curiae Oregon Trial Lawyers Association argue

that the attorney fee provision applies to a dismissal on

timeliness grounds. They contend that the term “finds”

means “to issue a decision.” And, because nothing in ORS

656.382(2) indicates that the reasons for such a decision are

pertinent, they argue, the board erred in concluding that a

finding “on the merits” is required. Moreover, according to

claimant, Curry does not compel a different result, but if it

does, then claimant urges us to reconsider that decision.

Insurer argues that the board correctly interpreted

ORS 656.382(2) to require a finding on the merits of the

compensation award.4 Relying heavily on Curry, insurer

reasons that a dismissal on timeliness grounds is merely a

4

Insurer also argues that, because its request for a hearing was not timely,

it did not “initiate” a request for a hearing as required by ORS 656.382(2). That

argument was not preserved below, and we do not reach that issue.

700 Arvidson v. Liberty Northwest Ins. Corp.

determination of a procedural issue, not a finding about the

compensation award.

A. Standard of Review

The ultimate issue is how to construe ORS

656.382(2). A threshold determination, however, is whether

the board’s construction is entitled to deference on review.

“Whether the agency’s construction is entitled to such def-

erence depends on whether the disputed term is exact, inex-

act, or delegative.” DCBS v. Muliro, 359 Or 736, 742, 380 P3d

270 (2016).

Exact terms “impart relatively precise meaning[s],”

and “[t]heir applicability in any particular case depends

upon agency factfinding.” Springfield Education Assn. v.

School District, 290 Or 217, 223-24, 621 P2d 547 (1980).

Inexact terms “are less precise” and are “open to various

interpretations,” but they “embody a complete expression of

legislative meaning.” Coast Security Mortgage Corp. v. Real

Estate Agency, 331 Or 348, 354, 15 P3d 29 (2000). Finally,

delegative terms “express incomplete legislative meaning

that the agency is authorized to complete.” Id. “The legis-

lature may use general delegative terms because it cannot

foresee all the situations to which the legislation is to be

applied and deems it operationally preferable to give to an

agency the authority, responsibility and discretion for refin-

ing and executing generally expressed legislative policy.”

Springfield Education Assn., 290 Or at 228. Thus, we will

review an agency’s construction of a delegative term def-

erentially “as long as the agency’s determination remains

within the range of discretion allowed by the general policy

of the statute.” See OR-OSHA v. CBI Services, Inc., 356 Or

577, 591, 341 P3d 701 (2014) (illustrating rule) (internal quo-

tation marks omitted).

“Whether legislation is exact, inexact, or delegative

is itself a question of statutory construction, requiring us to

examine the text of the statute in its context.” Muliro, 359

Or at 742. Both parties on review proceed on the implicit

assumption that the phrase “finds that * * * all or part of the

compensation awarded * * * should not be reduced or disal-

lowed” is an inexact term. For the reasons that follow, we

agree that the phrase is an inexact term.

Cite as 366 Or 693 (2020) 701

The phrase at issue appears within the Workers’

Compensation Law, a broad statutory scheme that gov-

erns Oregon’s workers’ compensation system. See ORS

656.001 - 656.990. The board is one of two agencies that

administer the workers’ compensation system. Among other

things, the board is “charged with reviewing appealed

orders of Administrative Law Judges in controversies con-

cerning a claim,” ORS 656.726(2), and has the authority to

award attorney fees, ORS 656.388(1).5 However, the statute

at issue here, ORS 656.382(2), specifically requires an award

of attorney fees, in an amount set by the board, if a “request

for hearing * * * is initiated by an employer or insurer,” and

the reviewing body “finds that * * * all or part of the compen-

sation awarded * * * should not be reduced or disallowed.”

The mandatory nature of that provision reflects a complete

policy statement that a claimant must receive attorney fees

when a specified condition is met.

Nonetheless, the phrase is not so precise that no

interpretation is needed. Although the statute reflects a

complete policy judgment that a claimant shall receive

attorney fees if a reviewing body “finds” that the compensa-

tion award should not be reduced or disallowed, the mean-

ing of “finds” in this context is not self-evident, as discussed

further below. Accordingly, we conclude that the phrase

is an inexact term, and we review the board’s interpreta-

tion for consistency with legislative intent. See Springfield

Education Assn., 290 Or at 227. We do that by applying the

ordinary method of statutory construction. State v. Gaines,

346 Or 160, 171-72, 206 P3d 1042 (2009) (explaining that

we discern the meaning of a statute by looking at the text,

context, and any helpful legislative history).

B. The Development of ORS 656.382(2) and the Modern

Workers’ Compensation System

ORS 656.382(2) was enacted in 1965 as part of a

“sweeping revision of the statutes pertaining to workers’

compensation.” Bracke v. Baza’r, 294 Or 483, 487, 658 P2d

1158 (1983). “Prior to the 1965 wholesale revision of the laws

5

Both ORS 656.726 and ORS 656.388 have been amended since claimant

was injured; however, because those amendments do not affect our analysis, we

refer to the current version of those statutes in this opinion.

702 Arvidson v. Liberty Northwest Ins. Corp.

relating to workers’ compensation, the statutory provisions

for attorney fees were sparse * * *.” Id. at 486. However, in

1945, the legislature amended OCLA § 102-1774 to allow

a claimant’s attorney to recover an assessed attorney fee

award (i.e., a fee award that is paid by the insurer and is not

deducted from the claimant’s compensation award). Id.; Or

Laws 1945, ch 303, § 1. That provision specifically allowed

for a fee when “this court affirmed a circuit court judgment

on an appeal to this court by” the State Industrial Accident

Commission (SIAC).6 Bracke, 294 Or at 486.

In 1953, the Oregon Revised Statutes replaced the

Oregon Compiled Laws Annotated. Walter v. Scherzinger,

339 Or 408, 417 n 8, 121 P3d 644 (2005) (so stating). As

part of that conversion, the portion of OCLA § 102-1774 that

provided for an assessed attorney fee became former ORS

656.292 (1953), renumbered as ORS 656.301 (1965), and

provided:

“(1) Appeals may be taken from the judgment of the

circuit court as in other cases.

“(2) In case of an appeal by [SIAC] from an adverse deci-

sion of the circuit court, if the judgment of the circuit court

is affirmed, the claimant shall be allowed attorneys’ fees,

to be fixed by the court, in addition to the compensation.”

In 1965, as part of the “wholesale revision” of the

workers’ compensation system,

“SIAC was abolished, and employers or the State Compen-

sation Department (SCD) became responsible for the pay-

ments of benefits to injured workers. The adjudication of

disputes between claimants and those responsible for pay-

ment of benefits was given in the first instance to the newly

created Workers’ Compensation Board ([b]oard). * * * Any

party could request review by the [b]oard itself. Thereafter,

any party could appeal to [the] circuit court, and any party

disappointed there could appeal to this court.”

Bracke, 294 Or at 486-87.

6

At that time, SIAC was the entity that administered the workers’ compen-

sation system, and it functioned as “both the insurer and the body that initially

adjudicated disputes between itself and claimants.” Bracke, 294 Or at 486.

Cite as 366 Or 693 (2020) 703

As for former ORS 656.292 (1953), the 1965 revi-

sions retained the provision for an assessed fee, but the sec-

tion was amended to reflect employers’ and SCD’s new role

in the workers’ compensation system. See Or Laws 1965,

ch 285, § 38. In addition, the section was amended to explic-

itly state that the scope of review in the appellate court—

then, the Oregon Supreme Court—was the same as the

scope of review in the circuit court. See id. Finally, former

ORS 656.292 (1953) was renumbered to former ORS 656.301

(1965), repealed by Or Laws 1977, ch 804, § 55. Thus, as

amended, former ORS 656.301 (1965) provided:

“(1) Appeals may be taken from the judgment of the

circuit court, the scope of review to be the same as that of

the circuit court.

“(2) In case of an appeal by the department or employer

from an adverse decision of the circuit court, if the judg-

ment of the circuit court is affirmed, the claimant shall be

allowed attorneys’ fees to be fixed by the court and to be

paid by the party initiating the appeal, in addition to the

compensation.”

Although the 1965 revisions retained the assessed

fee for appeals from the circuit court in former ORS 656.292

(1953), the legislature also weighed concerns about fees that

claimants might incur at earlier stages of disputes. Bracke,

294 Or at 487 (noting concern that “the adversarial position

of the employer or SCD, on the one hand, and the claimant,

on the other, might result in the former pursuing appeals

at each level for the purpose of wearing down or harass-

ing claimants”). “The answer was to provide that where the

employer or SCD initiated ‘a request for hearing, request

for review or court appeal’ and the claimant successfully

defended his award, the employer or SCD, as the case might

be, would become liable for reasonable attorney fees in addi-

tion to the award of benefits.” Id. “That section became ORS

656.382(2) [(1965)],” id., and, as enacted, provided:

“If a request for hearing, request for review or court

appeal is initiated by an employer or the department, and

the hearing officer, board or court finds that the compen-

sation awarded to a claimant should not be disallowed or

reduced, the employer or department shall be required to

pay to the claimant or his attorney a reasonable attorney’s

704 Arvidson v. Liberty Northwest Ins. Corp.

fee in an amount set by the hearing officer, board or the

court for legal representation by an attorney for the claim-

ant at the hearing, review or appeal.”

Thus, as this court stated in Bracke, the situation

“immediately after the 1965 revision was that a claimant

who successfully defended his award upon attack by the

employer or SCD was entitled to attorney fees in addition

to compensation at every level of scrutiny by virtue of either

ORS 656.382(2) [(1965)] or [former ORS] 656.301 [(1965)].”

Bracke, 294 Or at 488 (emphasis added). The judicial review

process proceeded first with an appeal to the circuit court,

ORS 656.298(1) (1965), amended by Or Laws 1977, ch 804,

§ 11; Or Laws 1987, ch 884, § 12a; Or Laws 1997, ch 389, § 1;

Or Laws 2005, ch 188, § 3; Or Laws 2007, ch 17, § 1, and then

with an appeal to the Supreme Court, former ORS 656.301

(1965). Moreover, review in the Supreme Court and in the

circuit court was de novo—meaning that courts tried the

case anew upon the record and had the authority to make

one or more factual findings anew upon the record. See ORS

656.298(6) (1965); former ORS 656.301(1) (1965).

In 1969, however, the legislature created the Court

of Appeals. Bracke, 294 Or at 488. That changed the judi-

cial review process for workers’ compensation cases by

giving the Court of Appeals, rather than this court, direct

appellate jurisdiction of circuit court judgments. Id. “After

creation of the Court of Appeals * * *, cases reached [the

Supreme Court] from that court only on petition for discre-

tionary review under ORS 2.520, [not former ORS 656.301(1)

(1965)].” Bracke, 294 Or at 489 (emphasis added). But former

ORS 656.301 (1965) was not correspondingly amended to

reflect the changed process for judicial review; as a result,

for some time, this court “continued, under the terms of

[former] ORS 656.301 [(1965)], to review the facts as well

as the law on the entire record made before the [b]oard.” Id.

That changed in 1971, in Sahnow v. Fireman’s Fund Ins. Co.,

260 Or 564, 568-69, 491 P2d 997 (1971), when this court con-

cluded that, because “appeals from the judgment of the cir-

cuit court * * * are now to the Court of Appeals,” former ORS

656.301 (1965) governed appeals to the Court of Appeals

and “that the scope of review in this court should not be

de novo.”

Cite as 366 Or 693 (2020) 705

Further revisions in 1977 included the repeal of

former ORS 656.301 (1965). Or Laws 1977, ch 804, § 55.

In addition, “ORS 656.298, which had provided since 1965

for appeal to the circuit court from decisions of the [b]oard,

was amended to delete reference to the circuit court and to

substitute therefor the Court of Appeals.” Bracke, 294 Or

at 489. Thus, after the 1977 revisions, “the only court still

mentioned in the part of the ORS chapter 656 pertaining to

the procedure for obtaining compensation, ORS 656.262 to

656.330, was the Court of Appeals.” Id.

Against that backdrop, this court in Bracke con-

sidered whether a claimant could recover attorney fees for

opposing a petition for review in the Supreme Court. Id. at

485. Specifically, we addressed whether the phrase “court

appeal” in ORS 656.382(2) (1982) included “discretionary

review in this court,” id. at 486, and we concluded that it did

not. After reviewing much of the history set out above, we

explained that, “the reference to ‘court appeal’ in the entirely

new provision in Oregon Laws 1965, chapter 285, section

42(2), which became ORS 656.382(2) [(1965)], was [origi-

nally] meant to apply to the appeal to [the] circuit court.”

Id. at 488 (brackets and emphasis added). We then reasoned

that Sahnow, “taken together with the 1977 amendment to

ORS 656.298 and repeal of [former] ORS 656.301 [(1965)],

present[ed] a strong case that the only court to which ‘court

appeal’ in ORS 656.382(2) [(1982)] could refer is the Court

of Appeals.” Bracke, 294 Or at 489-90. Thus, we held that

“there [was] no authority arising from that subsection for

this court to award attorney fees in this court to the claim-

ant who successfully defends an award upon” discretionary

review in the Supreme Court. Id. at 490.

The legislature responded to our decision in Bracke

by amending ORS 656.382(2) to remove “court appeal”

and replace it with the phrase “appeal or cross-appeal to

the Court of Appeals or petition for review to the Supreme

Court.” Or Laws 1983, ch 568, § 1. Thus, ORS 656.382(2)

(1983) provided:

“If a request for hearing, request for review, appeal or

cross-appeal to the Court of Appeals or petition for review to

the Supreme Court is initiated by an employer or insurer,

and the referee, board or court finds that the compensation

706 Arvidson v. Liberty Northwest Ins. Corp.

awarded to claimant should not be disallowed or reduced,

the employer or insurer shall be required to pay to the

claimant or the attorney of the claimant a reasonable attor-

ney fee in an amount set by the referee, board, or the court

for legal representation by an attorney for the claimant at

and prior to the hearing, review on appeal or cross-appeal.”

(Emphasis added.)

C. Decision in Curry

After the 1983 amendments to ORS 656.382(2), this

court in Curry considered whether ORS 656.382(2) (1983),

as amended, entitled the claimant to attorney fees spent in

opposing a petition for review that this court denied. 297 Or

at 507.

Our inquiry began by reiterating the purpose

underlying ORS 656.382(2), as described in Bracke: “to dis-

courage employers or their insurers from wearing down

claimants with harassing and frivolous appeals” by “pro-

viding for an award of attorney fees to the claimant if an

employer or insurer initiates a higher[-]level examination

of the case and does not win a reduction or elimination of

the claimant’s award.” Id. at 507-08. We then noted that,

notwithstanding that purpose, because of “an apparent leg-

islative oversight,” the statute before 1983 did not authorize

attorney fees “for work done at the Supreme Court level.”

Id. at 508 (citing Bracke, 294 Or at 490). Although the 1983

amendments generally changed that by adding “petition for

review to the Supreme Court” to the statute, the particular

question remained whether a denial of a petition for review

fell within the phrase “finds that the compensation awarded

to claimant should not be disallowed or reduced.” Id. (quot-

ing ORS 656.382(2) (1983) (emphasis in Curry)). Relying

on our earlier decisions in 1000 Friends of Oregon v. Bd.

of Co. Comm., 284 Or 41, 584 P2d 1371 (1978) and U-Cart

Concrete v. Farmers Ins., 290 Or 151, 619 P2d 882 (1980),

both of which dealt with the unique nature of petitions for

discretionary review in this court, we concluded that the

answer was no. Curry, 297 Or at 508-09. We first observed

“the want of significance to be attached to a denial of a peti-

tion for review,” which “ ‘carries no implication that the deci-

sion or the opinion of the Court of Appeals was correct.’ ”

Cite as 366 Or 693 (2020) 707

Id. at 508 (quoting 1000 Friends of Oregon, 284 Or at 44).

We also relied on our reasoning in U-Cart Concrete, id. at

509, which held that a respondent to a petition for review

that was denied was not a “prevailing party” for purposes

of a different statute because, “[w]hen a petition for review

is denied, the respondent has not prevailed on an appeal in

this court. Rather, the court has chosen not to entertain an

appeal.” U-Cart Concrete, 290 Or at 154 (internal quotation

marks omitted).

We thus concluded that, as a matter of a “literal

reading of ORS 656.382(2) [(1983)],” a denial of a petition for

review was not a “find[ing]” that the compensation award

should not be reduced or disallowed. Curry, 297 Or at 509.

We went on to consider whether that conclusion would be an

“absurd or unreasonable result,” and determined that, on

the contrary, our construction of the statute was consistent

with the legislative history of the 1983 amendment. Id. at

509-10 (internal quotation marks omitted).

Shortly after Curry, the Court of Appeals consid-

ered the impact of that decision on dismissals at the Court

of Appeals level. In light of Curry, the court held that, “when

an employer or insurer’s petition for judicial review is dis-

missed without a finding ‘that the compensation awarded to

a claimant should not be disallowed or reduced,’ the claim-

ant is not entitled to an award of attorney fees.” Agripac,

Inc., 73 Or App at 135. And, in turn, the board has relied

on Agripac, Inc. as support for its interpretation of ORS

656.382(2)—that the statute requires a finding “on the

merits.”

Since Curry, subsection (2) of ORS 656.382 has been

amended three times.7 Or Laws 2015, ch 521, § 5; Or Laws

2009, ch 526, § 3; Or Laws 1995, ch 332, § 42b. Although

the phrase “finds that the compensation awarded to a claim-

ant should not be disallowed or reduced,” has been modified

slightly by the addition of the phrase “all or part of,” see Or

Laws 2015, ch 521, § 5, the legislature has largely retained

the phrase without amendment. However, that phrase, as

7

There have been additional amendments that have created and amended

other subsections of ORS 656.382. See Or Laws 1990, ch 2, § 28; Or Laws 1987,

ch 884, § 34.

708 Arvidson v. Liberty Northwest Ins. Corp.

modified in 2015, has been extended to apply when, as in

this case, an insurer initiates review of “the compensa-

tion awarded by a reconsideration order issued under ORS

656.268.” See id.; Or Laws 2009, ch 526, § 3.

D. Statutory Construction

Insurer argues, relying on Curry, that the board

correctly concluded that the word “find” in ORS 656.382(2)

requires a decision “on the merits.” As we explain below,

we disagree with that interpretation of ORS 656.382(2);

moreover, to the extent that the board and insurer view

that interpretation as compelled by Curry, that view is

mistaken.

Beginning with the statutory text, we note that

ORS 656.382(2) does not expressly require that a deci-

sion be on the merits. See Gaines, 346 Or at 171-72 (text

and context are considered at first level of analysis). The

relevant phrase, again, is “finds that * * * all or part of the

compensation awarded * * * should not be reduced or dis-

allowed.” When, as here, the legislature has not defined

a word or phrase, we initially assume that the word or

phrase has its “plain, natural, and ordinary meaning.”

PGE v. Bureau of Labor and Industries, 317 Or 606, 611,

859 P2d 1143 (1993). Webster’s Third New Int’l Dictionary

852 (unabridged ed 2002) lists a number of different defi-

nitions of “finds,” the most relevant for our purposes being:

“6 : to arrive at (a conclusion) : come to (a finding) : deter-

mine and declare (as a verdict in a judicial proceeding)

: agree or settle upon and deliver.” (Boldface in original.)

However, “find” also can have a narrower meaning

in the legal context. When the legislature uses technical

terminology “drawn from a specialized trade or field,” courts

“look to the meaning and usage of those terms in the disci-

pline from which the legislature borrowed them.” Comcast

Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014).

When “a term is a legal one, we look to its established legal

meaning as revealed by, for starters at least, legal dictio-

naries.” Id. (internal quotation marks omitted). “We do not,

however, interpret statutes solely on the basis of dictionary

definitions. Instead, we examine word usage in context to

determine which among competing definitions is the one

Cite as 366 Or 693 (2020) 709

that the legislature more likely intended.” Muliro, 359 Or at

746 (citation omitted).

In legal proceedings, the phrase “to find” is often,

perhaps predominantly, used to refer to a specific type of

determination by a tribunal: a resolution of factual disputes.

See Black’s Law Dictionary (10th ed) (defining “find” as

“[t]o determine a fact in dispute by verdict or decision”);

Bryan A. Garner, A Dictionary of Modern Legal Usage (2d

ed 1995) (explaining the distinction between a finding and

a holding, and noting that “[a] court properly makes find-

ings of fact and holdings or conclusions of law” (emphases in

original)); see also State v. Cunningham, 337 Or 528, 538, 99

P3d 271 (2004), cert den, 544 US 931 (2005) (explaining that

“the trial court finds the facts that underlie the application

of OEC 803(2),” which is distinct from the trial court’s legal

conclusion that a statement is or is not an excited utterance

for purposes of OEC 803(2)). In general, facts are found at an

initial stage of a proceeding by a trial-level tribunal charged

with resolving both factual and legal issues. Except where

they review cases de novo (i.e., try the case anew upon the

record or make one or more factual findings anew upon the

record), appellate courts do not resolve factual disputes or

make findings of facts, instead taking the facts as found by

the lower tribunal. Or Const, Art VII (Amended), § 3; Stelts

v. State of Oregon, 299 Or 252, 255, 701 P2d 1047 (1985)

(trial court’s “findings are binding on the Court of Appeals

and this court unless the court can affirmatively say there

is no evidence to support them”). Thus, appellate decisions

are usually discussed in terms of what courts “held,” “con-

cluded,” or “decided,” not what they “found.”

In short, if one construes “finds” in ORS 656.382(2)

to have the particularized meaning associated with legal

proceedings, that could tend to suggest that the statute

allows for the award of attorney fees only when a tribunal

makes a decision with respect to the underlying “facts”

of the proceeding. On the other hand, if “finds” is given

its ordinary meaning, that would suggest a more inclu-

sive understanding that broadly reaches “determinations”

and “declarations,” including dismissals on procedural

grounds.

710 Arvidson v. Liberty Northwest Ins. Corp.

But we consider the word “finds” in context, not in

isolation. And other language in the statute suggests that

the legislature did not intend that “finds” have a specialized

meaning limited to the resolution of factual issues. ORS

656.382(2) is phrased broadly to cover an insurer’s “request

for hearing, request for review, appeal or cross-appeal to the

Court of Appeals or petition for review to the Supreme Court.”

But, as discussed above, 366 Or at 704, as of 1971, this court

no longer has the authority to decide workers’ compensation

cases de novo. Sahnow, 260 Or at 569. Similarly, as of 1987,

the Court of Appeals’ authority to review workers’ compensa-

tion cases no longer includes the authority to review the case

de novo. Or Laws 1987, ch 884, § 12a; see also DeLeon, 352 Or

at 137 n 3 (so stating). Thus, neither an appeal to the Court

of Appeals nor a petition for review to this court ordinarily

results in a “finding” of facts by either court. Given that the

statute expressly contemplates review by both courts and

that neither court typically issues decisions that would be

characterized as “factual,” it is more likely that the legisla-

ture intended “finds” to encompass determinations beyond

those of a factual nature. Rather, “finds,” as used in ORS

656.382(2), was intended to have its more general ordinary

meaning: the act of making a decision.

That conclusion, however, does not fully answer the

question, because, as a purely textual matter, it could still

be true that the statute refers to the act of making a deci-

sion “on the merits,” i.e., applying the substantive law to the

facts of the case, as opposed to resolving the case on another

(procedural) ground. Textually, the word “finds” neither

requires nor forecloses such a reading.

The surrounding context, however—and, specif-

ically, our earlier decision in Bracke—is informative. See

Liberty Northwest Ins. Corp., Inc. v. Watkins, 347 Or 687,

692, 227 P3d 1134 (2010) (explaining that, “[a]s part of that

first level of analysis, this court considers its prior interpre-

tations of the statute”). As early as Bracke, this court recog-

nized that the legislature that enacted the 1965 revisions

to the workers’ compensation system was concerned about

insurers pursuing harassing and frivolous appeals in order

to wear down a claimant and that the “answer” was ORS

656.382(2) (1965). 294 Or at 487.

Cite as 366 Or 693 (2020) 711

Although we did not construe the word “find” in

Bracke, in addressing the meaning of “court appeal,” we con-

cluded that “the situation [that was] obtain[ed] immediately

after the 1965 revision was that a claimant who successfully

defended his award upon attack by the employer or SCD was

entitled to attorney fees in addition to compensation at every

level of scrutiny by virtue of either ORS 656.382(2) [(1965)] or

[former ORS] 656.301 [(1965)].” Id. at 488 (emphasis added).

Nothing in Bracke implied that it mattered whether the suc-

cessful defense was procedural or substantive in nature.

Furthermore, in light of the long-recognized pur-

pose underlying ORS 656.382(2), it is not apparent why the

legislature would have intended for claimants to recover

fees for prevailing “on the merits” but not for otherwise

successfully defending against an attack on a compensa-

tion award—such as through the dismissal of an untimely

request for hearing. Indeed, insurer does not advance any

reason why the legislature would have intended that result.

The text, context, history, and purpose of ORS

656.382(2) thus indicate that the legislature intended that

an ALJ’s dismissal of an insurer’s request for hearing as

untimely would fall within ORS 656.382(2). There is no

doubt that an insurer’s request for a hearing is an “attack”

on the claimant’s award. See Bracke, 294 Or at 488. When

an insurer “objects to [a] reconsideration order, the [insurer]

may request a hearing under ORS 656.283.” ORS 656.268

(6)(g). If the insurer requests such a hearing and the request

relates to “any matter concerning a claim,” ORS 656.283(1),

then the “board shall refer the request for hearing to an

Administrative Law Judge for determination as expedi-

tiously as possible.” ORS 656.283(3)(a).8 At that point, the

ALJ must “determine the matter” and issue an order in

accordance with that determination unless the parties dis-

pose of the issues by agreement under ORS 656.289(4). See

ORS 656.283(3)(a) (“The board shall refer the request for

hearing to an Administrative Law Judge for determina-

tion as expeditiously as possible.”); ORS 656.289(1) (“Upon

8

ORS 656.283 has been amended since claimant was injured; however,

because those amendments do not affect our analysis, we refer to the current

version of the statute in this opinion.

712 Arvidson v. Liberty Northwest Ins. Corp.

the conclusion of the hearing, or prior thereto with concur-

rence of the parties, the Administrative Law Judge shall

promptly and not later than 30 days after the hearing deter-

mine the matter and make an order in accordance with the

Administrative Law Judge’s determination.”); see also Erck

v. Brown Oldsmobile, 311 Or 519, 523, 815 P2d 1251 (1991)

(“The referee who presides over the hearing is required to

issue an order deciding the matter within 30 days of the

hearing.”). As such, an insurer’s request for a hearing is an

attack on claimant’s compensation award that compels the

ALJ to determine the matter; the ALJ does not have discre-

tion to decline review of the hearing request.

Nor is there any doubt that a claimant who obtains

the dismissal of a hearing request on timeliness grounds

has “successfully defended” the compensation award. See

Bracke, 294 Or at 488. An ALJ’s order dismissing a hearing

request as untimely expresses the ALJ’s “determination”

of a “matter[ ] in which a worker’s right to receive compen-

sation, or the amount thereof, [is] directly in issue.” ORS

656.283(1); ORS 656.289(1); ORS 656.704(3)(a).9 Here, the

ALJ determined that the request for hearing was untimely

and that the award therefore became “final by operation of

law.” Although such a determination may not express an

opinion that the compensation award was properly made,

it nonetheless establishes, as definitively as any ruling on

the substantive merits, that the compensation award should

not be “disallowed or reduced.” Such a ruling brings an end

to an insurer’s action that otherwise would have proceeded

as of right. In other words, a finding (or decision) that the

insurer’s hearing request may not proceed is, of necessity, a

finding (or decision) that the claimant’s compensation award

should not be reduced or disallowed.

In urging a different result, insurer does not make

arguments specifically based on the text, context, or legisla-

tive history of ORS 656.382(2).10 Rather, insurer’s argument

90

ORS 656.704 has been amended since claimant was injured; however,

because those amendments do not affect our analysis, we refer to the current

version of the statute in this opinion.

10

Insurer argues that the board’s contrary understanding has been implic-

itly ratified by the legislature because, although the legislature has made

other changes to ORS 656.382(2) since Curry, it has never amended the phrase

Cite as 366 Or 693 (2020) 713

on review—and the view that the board has adopted—is

that our opinion in Curry stands for the rule that a decision

must be “on the merits” in order to fall within the statute.

But that argument overstates Curry’s holding.

In Curry, this court reiterated the purpose underly-

ing ORS 656.382(2), as described in Bracke: “to discourage

employers or their insurers from wearing down claimants

with harassing and frivolous appeals” by “providing for

an award of attorney fees to the claimant if an employer

or insurer initiates a higher[-]level examination of the case

and does not win a reduction or elimination of the claim-

ant’s award.” Id. at 507-08. In concluding that a denial of

a petition for review did not fall within the statute, Curry

did not say that a decision must be “on the merits”; that

phrase was never used. As explained above, Curry turned

on the unique circumstances of a petition for review to this

court. It is true that a denial of a petition for review is not

a decision on the substantive merits of the case. But that is

not precisely what distinguishes petitions for review from

any number of other types of rulings that courts issue. The

distinguishing characteristic of a petition for review is that

the resulting action does not determine anything about the

underlying case, other than to create the possibility, if the

petition is allowed, of another determination in the future.

See U-Cart Concrete, 290 Or at 154 (explaining that a peti-

tion for review calls upon this court to decide whether to

“entertain an ‘appeal’ ”).11

“finds that the compensation awarded to a claimant should not be disallowed

or reduced.” However, as this court has consistently explained, “[l]egislative

inaction in response to a judicial interpretation of a statute does not amount to

an endorsement of the court’s interpretation.” DeLeon, 352 Or at 141; see also

Farmers Ins. Co. v. Mowry, 350 Or 686, 696, 261 P3d 1 (2011) (explaining that

“the legislature may decline to address a judicial decision for any number of rea-

sons, none of which necessarily constitutes an endorsement of the decision’s rea-

soning or result”).

11

In the context of a different statute, we have also concluded that the denial

of a petition for review results in a claimant’s “finally prevail[ing]” against the

denial of a claim. Shearer’s Foods v. Hoffnagle, 363 Or 147, 154-55, 420 P3d 625

(2018) (“The legislature intended the authorization in ORS 656.386(1)(a) of a fee

to a claimant who ‘finally prevails against’ the denial of a claim in a ‘petition for

review to the Supreme Court,’ to include a claimant who finally prevails against

the denial when this court denies the employer’s petition for review.” (Emphasis

added.)).

714 Arvidson v. Liberty Northwest Ins. Corp.

Put in the terms of ORS 656.382(2) and the lan-

guage of Bracke, which we cited with approval in Curry,

the conclusion that a denial of a petition for review does

not amount to a “find[ing]” about the compensation award

reflects the reality that, merely by petitioning this court to

exercise its discretion to review the case, the insurer has

not “initiated” a “higher-level examination” of the compen-

sation award itself; rather, the insurer is at a threshold that

it must pass in order to cause that “higher-level examina-

tion.” Thus, the only thing that the denial of a petition for

review decides about the case is that the Supreme Court

will not make a decision about the case. In contrast, when

an insurer initiates a request for review by an ALJ, the dis-

missal of that request as untimely is a decision about the

case itself; it brings a close to an action that otherwise would

have proceeded as of right, and thereby establishes that the

compensation award will not be altered.

In sum, Curry does not require a different conclu-

sion in this case than the one at which we arrive after con-

sidering the text, context, and legislative history of ORS

656.382(2), i.e., that the ALJ correctly determined that his

dismissal of insurer’s request for hearing entitled claimant

to attorney fees. The board erred in concluding otherwise.

IV. CONCLUSION

The decision of the Court of Appeals is reversed.

The order of the Workers’ Compensation Board is reversed,

and the case is remanded to the Workers’ Compensation

Board for further proceedings.