dissenting.
At the time of the claimant’s injury, and during the hearings in this case, the procedure for obtaining compensation included the requirement that SAIF or the direct responsibility employer, within 60 days after having notice of a claim, give “written notice of acceptance or denial of the claim.” ORS 656.262(5). If the claim were denied, the fund or direct responsibility employer was required to give “written notice of such denial, stating the reason for the denial, and informing the worker of hearing rights.” ORS 656.262(6).
On October 4,1977, the claimant’s claim was pending and the parties were awaiting the referee’s hearing scheduled for October 21, 1977. On October 4, 1977, his attorney sent a doctor’s report to the employer along with this request:
“Based on this report you should reopen and pay TTD for full time less time worked and you should authorize surgery.”
This request was made prior to a hearing which the claimant had previously requested and which involved these issues:
1. Whether he had received all of the temporary total disability payments to which he was entitled;
2. Whether his condition was stationary;
*5993. The amount of permanent disability to which he was entitled.1
The claimant’s request of October 4, 1977, did not create a “new claim.” The request related to the issues then pending before the referee, and in addition raised the additional issue whether further medical treatment was required.
The majority opinion correctly points out that at the hearing on October 21, 1977, the employer’s attorney “orally denied liability for the claimant’s back condition.” Although that statement by the employer’s attorney put in issue the compensability of that portion of the claimant’s claim relative to the back injury, it did not have the effect of creating a denied claim under ORS 656.262(5) or ORS 656.386(1). The posture of the case was this: The claimant’s claim was then pending before the referee. The employer had denied a causal connection between the accident and the claim for compensation arising from the back problems. The claim was in exactly the same posture as if the back claim had been asserted originally and with the ankle claim.
This case involves a construction of the first sentence of ORS 656.386(1) which reads:
“In all cases involving accidental injuries where a claimant prevails in an appeal to the Court of Appeals from a board order denying his claim for compensation, the court shall allow a reasonable attorney fee to the claimant’s attorney. * * *” (Emphasis added.)
Obviously, the key words in that sentence are the words “denying” and “claim.” A failure to award all of the requested relief is not equivalent to “a board order denying his claim.” Such a construction would compel the carrier to pay attorney fees in every appeal to the Court of Appeals in which the Court of Appeals increased an award of compensation. However desirable that may be, the statute does not require it.
ORS 656.005(7) defines a “claim” as “a written request for compensation.” At one and the same time an injury can (and often does) give rise to compensation *600“claims” for (1) medical expenses, (ORS 656.245), (2) temporary total disability (ORS 656.210), (3) permanent total disability (ORS 656.206), and (4) permanent partial disability (ORS 656.214), either scheduled (ORS 656.214(2)) or unscheduled (ORS 656.214(5)). “Claims” for permanent partial disability can involve scheduled claims for injury to more than one part of the anatomy. The word “claims,” as used in the foregoing sentences, illustrates the fact that although but one claim is made in the sense that but one request for compensation is made under ORS chapter 656, the relief requested may involve claims of many different kinds.
The term “compensation” is defined in ORS 656.005(9) to include “all benefits, including medical services, provided for a compensable injury to a subject worker.” In short, a compensable injury (which term is defined in ORS 656.005(8)(a)) gives rise to one claim — which in many cases is a multi-faceted claim — but which is nonetheless one claim. The majority opinion errs in treating the worker’s claim as, in effect, two claims.
Nor does this case involve a “denied claim” under ORS 656.262(5) or (6) or ORS 656.386(1). The referee’s order and the Board order did not deny compensation. The referee ordered an increase in compensation for 15 percent loss of the right foot. This order was affirmed by the Board.
Cavins v. State Accident Insurance Fund, 272 Or 162, 536 P2d 426 (1975), appears to be inconsistent with this analysis, but in fact, it is not. The briefs in Cavins reveal that the claimant’s Workers’ Compensation claim arising from the injury of March, 1970, was closed, apparently in 1971. The claimant sustained a second injury on September 21, 1972, and the Workers’ Compensation claim made thereon was closed on November 24,1972. No appeal was taken from that closing order. However, after symptoms continued in 1973, the claimant’s treating physician wrote SAIF regarding the treatment that the claimant was then receiving. SAIF consistently refused to pay any compensation requested in various letters sent to it in 1973. However, SAIF did not issue a formal notice of denial of responsibility under ORS 656.262(5).
*601The letter of the treating physician in Cavins, requesting that SAIF reopen the claim for treatment, was in the nature of a claim for aggravation under ORS 656.273, which claim was consistently denied by SAIF from the very day that it was filed. The only issue in Cavins was whether the worker’s claim was compensable at all. SAIF’s position concerning ORS 654.386(1) was that since it had not denied the “original claim” arising from the 1972 injury, it should not be treated as having denied the aggravation claim under ORS 656.386(1). The court was correct in holding, in effect, that the consistent refusal of SAIF to pay all or any part of the claims asserted was a denial under ORS 656.386(1).
The facts of this case are more akin to Vandehey v. Pumilite Glass & Building Co., 35 Or App 187, 580 P2d 1068 (1978). There, while awaiting a hearing as to the extent of the claimant’s disability (exactly the same situation as in the case at bar), the claimant’s attorney sent a further medical report to the employer, requesting the reopening of the claim and payment of temporary total disability. The referee reopened the claim and ordered payment of temporary total disability payments, but ordered the claimant to pay his attorney fees out of his compensation rather than ordering the employer to pay the fees. The Workers’ Compensation Board affirmed, as did the Court of Appeals. This statement of Judge Gillette correctly analyzes the situation:
“* * * Claimant’s September 29,1976, request for a hearing specifically placed in issue the need for further medical evaluation of claimant on a claim he had already made. Dr. Hickman’s letter of January 4, 1977, supported that prior claim and was appropriate evidence to be received at the subsequent hearing. It was proffered evidence of a pending claim, not assertion of a new one. Any other rule would encourage similarly situated claimants to ‘keep an anchor to windward’ by labeling all new medical evidence as either a new claim or an aggravation claim, instead of concentrating on the hearing process they have alredy invoked. This approach would seriously undermine the hearing process. We decline to adopt it.” (Emphasis theirs.) 35 Or App at 192-193.
Judge Gillette distinguished Cavins, supra, as follows:
*602“Claimant relies on Cavins v. SAIF, supra. In that case, however, the carrier had refused to pay for an ankle operation and consequent temporary disability on the theory that the surgery was not necessitated by a covered injury. In holding that claimant was entitled to attorney’s fees, the Supreme Court said,
“ '* * * the legislature clearly intended that a workman whose claim is erroneously rejected and who is thereby forced to appeal should not be forced to bear the additional expense of employing an attorney to represent him. (Footnote omitted.)’ ” (Emphasis theirs.) 35 Or App at 193.
The effect of the majority opinion is to make an employer who denies any part of a worker’s compensation claim liable for attorney fees in the Court of Appeals if any increase is made. ORS 656.386(1) does not require or suggest such a result.
It is true that the quoted rule, OAR 436-83-125, provides for a “partial denial.” However, a rule which provides for partial denials cannot enlarge the limited provision for attorney fees in a statute which is clear on its face. The majority concedes that there is no statutory authority for partial denials and counsel have pointed out none. Partial denials are apparently a device which has developed as a matter of convenient practice, but neither rule nor practice can substitute for an authorizing statute. The legislature has provided for acceptance or denial. If a contrary practice is to be adopted, it should be by the legislature. We have no authority to sanction the practice and certainly no authority to award attorney fees based upon it.
I would affirm. I believe that this is one of the “all other cases” referred to in ORS 686.386(2).2
Tanzer, J., joins in this dissent.These issues were listed in the claimant’s request for hearing. See majority opinion at 589.
ORS 656.386(2):
“In all other cases attorney fees shall continue to be paid from the claimant’s award of compensation except as otherwise provided in ORS 656.382.”