The opinion
ROSSMAN, J.,
dissenting.
The majority holds that claimant was not entitled to employer-paid attorney fees for services in overcoming the denial of his claim, because he did not prevail finally in a hearing, i.e., in a completed adversarial proceeding where a referee holds in a claimant’s favor. Although ORS 656.386(1) provides the only statutory authorization for an award of attorney fees, I cannot agree with the majority’s decision that the statute was intended to preclude attorney fees in cases where the claim is settled before the final curtain comes down on a complete hearing. That result is so foreign to considerations of fairness and the efficient administration of justice, *83 within the realm of the Workers’ Compensation Law, that I must dissent.
The statute describes, generally, the different levels of review in workers’ compensation cases and provides that a claimant who seeks review of a denied claim may recover attorney fees for prevailing finally at any level. It does not state that the claimant must prevail by reason of a decision at the hearing level. Rather, it appears to permit recovery of attorney fees by a claimant who succeeds in establishing finally the compensability of the claim after the employer or insurer has made a decision to deny the claim, whether that be by a determination of the referee or by the employer’s ultimate acceptance of the claim at the hearing level.
Greenslitt v. City of Lake Oswego, 305 Or 530, 533 , 754 P2d 570 (1988), relied on by the majority, is not inconsistent with my interpretation of the statute. The question in that case was whether, considering ORS 656.386(1) and ORS 656.388(2) together, the Board or the circuit court was the proper forum to review the referee’s award of attorney fees. That, in turn, depended on whether the claimant had “finally prevailed” before the referee. The court held that the claimant had not, because the employer had sought Board review of the referee’s determination of compensability. Greenslitt stands only for the proposition that a claimant cannot be said to have “finally prevailed” if the issue of compensability remains ultimately unresolved. It does not preclude an award of attorney fees if the issue of compensability is resolved in the claimant’s favor after a hearing has been requested but before the referee has reached a decision. The court was not faced with that issue and had no occasion to consider it.
Employer, having denied the claim, forced claimant to request a hearing, thereby bringing the case to the hearing level of review. The efforts of claimant’s attorney were presumably responsible for the Fund’s ultimate withdrawal of the denial and acceptance of the claim. A claimant incurs attorney fees throughout the entire process and should be fully compensated when a claim is accepted. The proper focus in determining whether claimant is entitled to attorney fees is on whether he finally prevailed on the issue of compensation, not when he prevailed or in what setting. Claimant did *84 prevail, no matter how one looks at it, and he should be awarded attorney fees.
In view of the legislature’s apparent policy, as expressed in ORS 656.386, that the employer, not the claimant, bear the cost of a claimant’s legal representation when a claim is erroneously rejected and it proceeds to the hearing level, the Board’s interpretation of the statute is erroneous as a matter of law. For more than 20 years, the Board interpreted the statute to permit attorney fees for services provided after a request for a hearing had been filed but before the hearing. See former OAR 438-15-030(1). The legislature did nothing to change that interpretation, and I see no reason suddenly to move the goalposts now.
Accordingly, I dissent. 1
I am also very much concerned about the policy implications of the majority’s holding. It is likely to discourage claimants from seeking pre-hearing rescission of claim denials, because attorney fees, if any, will be deducted from the award. Obtaining relief effectively exposes a claimant to a penalty. There are also negative consequences on the employers’ side: The majority’s result will eliminate an important incentive for employers to investigate and accept meritorious claims promptly and carefully and forces claimants to incur unnecessary expenses that the responsible employers will not be required to reimburse. Beginning with this case, other than the penalties imposed for unreasonable denials, there no longer is a risk of incurring attorney fees for denying valid claims. I believe that that unfairly places the financial burden of error on claimants.