JRP Construction Enterprises, Inc. v. Department of Consumer Business Services

Director's dismissal of ALJ decision for attorneys’ fees concerning litigating the insurance pre-authorization under ORS 656.704(2)(a) was improper because the use of moot was ambiguous in this context and the issue concerning attorney’s fees must be reconsidered.

Claimant sought preauthorization from his insurance provider for treatment for a compensable injury. When the insurer declined, claimant sought a determination by the Workers’ Compensation Division, who on review determined the denial was improper. Insurer asked for the ALJ to make a determination. ALJ affirmed the decision of the review board granting attorney’s fees, where upon insurer moved for further review. During review, Claimant underwent the operation, for which insurer paid. The issue on review by the director was attorneys’ fees. The director determined that the issue was moot as the employer paid all related expenses. The Court, reviewing the attorneys’ fees, determined that the use of moot was improper as the issue of fees had yet to be determined. The order failed to describe a rational connection between the attorneys’ fee award, and the legal conclusion that the dispute is no longer alive. Reversed and remanded.