# Dean Warren Plumbing & Liberty Northwest Insurance v. Brenner

> Court of Appeals of Oregon · October 15, 1997 · 150 Or. App. 422

URL: https://www.frixlaw.com/law-library/cases/9532675

## Case

- **Full name:** In the Matter of the Compensation of Gary L. Brenner, Claimant. DEAN WARREN PLUMBING and Liberty Northwest Insurance Corporation, Petitioners, v. Gary L. BRENNER, Fullman Company and Liberty Northwest Insurance Corporation, Respondents
- **Court:** Court of Appeals of Oregon
- **Decided:** October 15, 1997
- **Citations:** 150 Or. App. 422; 946 P.2d 356; 1997 Ore. App. LEXIS 1469
- **Precedential status:** Published
- **Opinion:** Dissent by Warren
- **Judges:** Deits, Warren, Edmonds, Landau
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9532675

## Opinion text

WARREN, J.,
dissenting.
The majority incorrectly assumes that because the legislature did not mention ORS 656.307 in ORS 656.308 it must have intended a result inconsistent with its overriding intent to limit attorney fees in responsibility cases. However, a permissible interpretation is available which provides consistency between the sections and at the same time adheres to the legislative purpose of limiting attorney fees in responsibility disputes. Because the majority fails to recognize this interpretation, I dissent.
ORS 656.307(5) provides, in part:
*429 “The claimant shall be joined in any proceeding under this section as a necessary party, but may elect to be treated as a nominal party. If the claimant appears at any [hearing to determine responsibility between multiple employers] and actively and meaningfully participates through an attorney, the Administrative Law Judge may require that a reasonable fee for the claimant’s attorney be paid by the employers or insurer * *
ORS 656.308(2)(d) provides:
“Notwithstanding ORS 656.382(2), 656.386, and 656.388, a reasonable attorney fee shall be awarded to the injured worker for the appearance and active and meaningful participation by an attorney in finally prevailing against a responsibility denial. Such a fee shall not exceed $1,000 absent a showing of extraordinary circumstances.”
The issue is whether ORS 656.308(2)(d) limits attorney’s fees to $1,000 even if the proceedings were governed by ORS 656.307 (referred to as a “307” hearing). A “307” hearing may be requested only when all parties agree that an injury is compensable and responsibility is the only question. See OAR 436-060-180.
In addressing this issue we must adhere to the settled principle that whenever possible we attempt to construe statutes on the same subject to achieve consistency. Urban Renewal v. Swank, 54 Or App 591, 599 , 635 P2d 1344 (1981), rev den 292 Or 450 (1982); Circuit Court v. AFSCME, 295 Or 542, 545 , 669 P2d 314 (1983); see also Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 83 , 611 P2d 281 (1980) (“This court will avoid a construction which creates a conflict between statutes or renders one statute ineffective.”). The majority fails to mention this principle and instead focuses on tools of statutory construction based on the assumption that the sections conflict. This assumption is incorrect.
ORS 656.308(2)(d) sets a limit on attorney fees for that portion of the proceedings which deals with disputes between employers over which is responsible for compensating a claimant. Responsibility addresses only who is going to compensate a claimant, not whether a claimant will be compensated. The role of an attorney at this stage is generally insignificant compared to his or her role in a dispute over *430 whether an injury is compensable. 1 The legislature has made the policy decision to limit claimant attorney’s fees in a dispute over responsibility. It would be incongruous for ORS 656.308(2)(d), which expressly targets responsibility cases, not to apply to a “307” hearing, which deals exclusively with responsibility.
There is no conflict between ORS 656.307(5) and 656.308(2)(d). Section 656.307(5) provides that a reasonable attorney fee may be awarded if the claimant’s attorney meaningfully participates in a responsibility hearing. Obviously, if the claimant has absolutely nothing to gain or lose in a “307” hearing, any legal representation cannot be meaningful and should not be compensated. However, when an attorney’s presence is necessary to protect or further an interest that may be in jeopardy, the statute provides for a “reasonable” attorney fee. Section 656.308(2)(d) provides that absent extraordinary circumstances, such reasonable attorney fees shall not exceed $1,000.
Read together, these statutes provide for reasonable attorney fees when an attorney meaningfully participates in a “307” hearing limited to $1,000 absent extraordinary circumstances. This simple construction gives effect to both statutes and furthers the legislative purpose behind ORS 656.308(2)(d), which is to limit the incentive for claimant attorneys to unnecessarily participate in proceedings which are really fights between employers.
Granted, ORS 656.308(2)(d) fails to include ORS 656.307 in its notwithstanding clause. However, this omission is far more likely an oversight than an indication of an intent that conflicts with the legislative goal to limit attorney fees in responsibility proceedings. Nothing in the statutes require the conclusion that the majority reaches. The construction that I propose is consistent with both the language *431 of the statutes and the legislative policy. Because the majority unnecessarily reaches a conclusion inconsistent with the clear legislative policy, I dissent.
Edmonds and Landau, JJ., join in this dissent.
There are times when legal representation in responsibility cases is very important. Deciding which employer pays the benefits may significantly impact the amount of those benefits due to such factors as time loss rates, medical providers and aggravation claim periods. However, the more crucial the attorney’s role is in the proceeding, the more likely it will fall under the extraordinary circumstances of ORS 656.308(2)(d).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9532675. Public record. Not legal advice.