Opinion
WCB 83-09115 84-00654; CA A36379
On petitioner — cross-respondent's reconsideration filed July 25, 1986
Reconsideration allowed; reversed and remanded for determination of attorney fees, former opinion ( 80 Or. App. 276, 720 P.2d 1350) otherwise affirmed September 10, 1986
Judicial Review from Workers' Compensation Board.
James S. Coon and Aitchison, Imperati, Barnett Sherwood, P.C., Portland, for petition.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
RICHARDSON, P.J.
Reconsideration allowed; reversed and remanded for determination of attorney fees; otherwise affirmed.
Petitioner — cross-respondent requests reconsideration of our decision in this case, 80 Or. App. 276, 720 P.2d 1350 (1986), pursuant to ORAP 10.10. We allow the petition, modify our decision and affirm it as modified.
On review, petitioner contended that the Workers' Compensation Board erred in denying penalties and attorney fees which he requested because of SAIF's late denial of his workers' compensation claim. ORS 656.262(10). We affirmed the Board's decision without opinion. Petitioner points out that, under Spivey v. SAIF, 79 Or. App. 568, 720 P.2d 755 (1986), he is entitled to attorney fees. He is not entitled to a penalty for the tardy denial, because there was no compensation then due on which to base a penalty. He is, however, entitled to attorney fees. Spivey v. SAIF, supra.
Reconsideration allowed; reversed and remanded for determination of attorney fees; otherwise affirmed.