The Benefits Review Board recently revisited the Christensen decision again, this time in response to employer’s timely motion for reconsideration. The employer contended that the Board should have considered the rates recorded in the 2007 Oregon Bar Survey for state workers’ compensation attorneys. The Board disagreed, affirming its earlier decision to exclude the Oregon state workers’ compensation rates because Oregon state workers compensation rates are not based on market considerations.
Additionally, the Board briefly addressed the Supreme Court’s recent attorney fee decision, Perdue v. Kenny A., and it agreed with the employer that “one factor, like years since admission to the bar, does not control an attorney’s hourly rate in every case in which he participates,” and that “[h]ourly rates for the same attorney can vary from case to case and, within one case, from level to level.” The Board also stated, however, that a very experienced and skilled attorney warrants a higher hourly rate for few hours worked.
Note: The use of surveys to support attorney fee petitions should be scrutinized carefully by the Board to ensure that the methodology used by the publishers of the survey makes the survey relevant to each particular case. For instance, one survey, the Survey of Law Firm Economics, is often used to justify an attorney fee request. The publishers of the Survey of Law Firm Economics, however, have stated that it does not apply to sole practitioners. Instead, the publisher refers readers to the Small Law Firm Economic Survey, which applies to firms with fewer than twenty attorneys. Notably, the Small Law Firm Economic Survey indicates that hourly rates are much lower for sole practitioners.
If a practitioner wishes to use a survey as a basis for a requested hourly rate, that practitioner should be required to demonstrate that the methodology used to create the survey makes it relevant for the particular case at hand.