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Westfall v. Rust International11/5/1992
SUPREME COURT OF OREGON
SC No. S39025
1992.OR.40423 ; 314 Or. 553; 840 P.2d 700
Decided: November 5, 1992.
IN THE MATTER OF THE COMPENSATION OF RANDY R. WESTFALL, CLAIMANT. RANDY R. WESTFALL, PETITIONER (BELOW), DAVID C. FORCE, PETITIONER ON REVIEW,
v.
RUST INTERNATIONAL AND UNDERWRITERS ADJUSTING COMPANY, RESPONDENTS ON REVIEW
On review from the Court of Appeals. WCB No. 88-01147; CA No. A62442.
David C. Force, of Vick & Gutzler, Salem, argued the cause and filed the petition in propria persona.
Darren L. Otto, of Scheminske & Lyons, Portland, argued the cause for respondents on review and filed a response.
James L. Edmunson, Eugene, argued the cause and David Gernant, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
In Banc. Graber, J.
Graber
This case involves the interpretation and application of ORS 656.390, a provision of the Workers' Compensation Law providing for the imposition of sanctions against a lawyer who files a frivolous petition for judicial review or motion for reconsideration in connection with a workers' compensation claim. We first set out the extensive procedural background of the case.
Claimant filed a petition for judicial review of an order of the Workers' Compensation Board (Board) denying compensation for a back injury . The Court of Appeals affirmed the Board's decision without opinion. Westfall v. Rust International, 102 Or App 373, 795 P2d 124 (1990) (Westfall I). The employer against whom the claim was made (employer) petitioned the Court of Appeals for sanctions against one of claimant's lawyers, on the ground that the petition for judicial review was frivolous within the meaning of ORS 656.390. The Court of Appeals granted the petition and imposed sanctions against the lawyer in the amount of employer's reasonable attorney fees. Westfall v. Rust International, 104 Or App 132, 798 P2d 1124 (1990) (Westfall II). The lawyer against whom the sanctions were imposed petitioned for reconsideration of the sanction order, arguing that he was not the lawyer who filed the original petition for judicial review of the denied claim. The Court of Appeals rejected that argument and affirmed the sanction order, reasoning that he had signed and filed a brief in the original petition for judicial review of the denied claim that was "wholly devoid of merit." Westfall v. Rust International, 107 Or App 395, 398, 812 P2d 31 (1991) (Westfall III).
The lawyer sought review in this court, which vacated the sanction order and remanded the case to the
Court of Appeals for further consideration in the light of Mattiza v. Foster, 311 Or 1, 803 P2d 723 (1990). Westfall v. Rust International, 312 Or 34, 815 P2d 1272 (1991) (Westfall IV). In Mattiza, this court considered another sanctions statute, ORS 20.105(1), and held that there were three prerequisites to an award of attorney fees under that statute: that the party seeking the award had prevailed in the relevant forum; that the claim, defense, or ground for appeal or review was meritless, that is, was "entirely devoid of factual or legal support"; and that the party against whom the sancti
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