dissenting.
I disagree with the majority’s conclusion that an award of attorney fees under ORS 656.382(1) was proper. In my view, on the record before us, employer’s delay in acceptance of the claim was not “unreasonable resistance to compensation” within the meaning of that statute. The undisputed evidence in this case is that any delay in the payment of compensation was a function of a processing error and had nothing to do with the timing of the acceptance.
The facts are straightforward and uncontested. Claimant filed a claim for an injured arm. Employer did not accept or deny the claim within 90 days as was required by ORS 656.262(6)(a) (1999). Meanwhile, claimant sought treatment and submitted a total of $1,304.23 in medical bills. Employer eventually accepted the claim, but, as the Workers’ Compensation Board (board) found, “[d]ue to an error by the processing agent’s billing service, these bills were not paid” until much later than they should have been paid. The bills had been returned from an audit to the claims examiner’s office marked “paid” when they had not been paid.
Thus, there were two delays: One, the delay in acceptance and, the other, the delay in payment of the medical bills. The board penalized employer under ORS 656.262(ll)(a) for an unreasonable delay in the payment of compensation, based on the untimely payment of the medical bills. It then also awarded claimant attorney fees under ORS 656.382(1) for “unreasonable resistance to the payment of compensation,” based on the untimely acceptance at a time when there were outstanding medical bills. Employer does not challenge the imposition of the former penalty. It challenges only the imposition of attorney fees. Thus, the issue before us is whether a delay in acceptance of a claim constitutes “unreasonably] resist [anee to] the payment of compensation” within the meaning of ORS 656.382(1).
Delaying acceptance, by itself, is not resisting compensation. “Compensation” is a term of art that refers to the payment of benefits. ORS 656.005(8). An employer may untimely accept a claim and still timely pay benefits. An employer, for example, may untimely accept a claim when there are no outstanding medical bills and, when the bills are *564submitted, timely pay them. In such a case, the untimely acceptance cannot provide a basis for awarding attorney fees under ORS 656.382(1). That much appears undisputed.
In this case, however, we are confronted with an employer that did not merely untimely accept. At the time that it untimely accepted, there were outstanding medical bills. Does the mere existence of outstanding medical bills at the time of an untimely acceptance mean that there will be untimely payment of those bills? I think not. At the time this claim was made, an employer had 90 days from the notice of the claim to accept or deny. ORS 656.262(6)(a) (1999). Meanwhile, the deadline for paying medical bills is 45 days from receipt of the bill or 14 days after acceptance, whichever is later. OAR 436-009-0030(4). Thus, the medical bills pending acceptance or denial of a claim are not “compensation” within the meaning of the workers’ compensation statutes. It follows that an employer’s untimely acceptance when there are outstanding medical bills does not amount to “resisting]” compensation. At the time of the untimely acceptance, there was no “compensation” for the employer to resist paying.
That is precisely what we said in Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), modified on recons, 118 Or App 261, 846 P2d 1194, rev den, 316 Or 142 (1993). In that case, we held that an untimely acceptance cannot serve as the basis for an award of attorney fees under ORS 656.382(1) merely because there were outstanding medical bills at the time of acceptance. We reasoned that, because those medical expenses were not due until acceptance, they are not considered “compensation.” Thus, the delay in acceptance is not resistance to the payment of compensation because, until the time of acceptance, there is no compensation to resist. Id. at 164.
In this case, there is no dispute that employer accepted the claim eight days late. There is also no dispute that, until the time of acceptance, the outstanding medical bills were not “compensation” within the meaning of the workers’ compensation statutes. As a result, under Meier & Frank Co., the delay in acceptance cannot support an award of attorney fees for unreasonably resisting the payment of *565compensation merely because there were, at the time, outstanding medical bills.
The majority concludes that attorney fees in this case were appropriately awarded. 192 Or App at 562. According to the majority, it does not matter that there was no compensation due at the time of acceptance. Id. at 561-62. If there were medical bills outstanding at the time of acceptance, an untimely acceptance can constitute “unreasonably] resist[ance] to the payment of compensation,” because the untimely acceptance can have the effect of delaying the payment of the medical bills. Id.
I put aside what I regard as the odd suggestion that an act can constitute “resistance” to the payment of compensation when, at the time of the act, there is no compensation to resist paying. Suffice it to say that Meier & Frank Co. is directly to the contrary. Even assuming that the majority is correct in that regard, the conclusion that it reaches does not follow from its premise.
That a delay in acceptance can cause a delay in payment of compensation and, thus, constitute “unreasonably] resist [anee] to the payment of compensation,” does not mean that it always will do so. In fact, it is easy to imagine cases in which an untimely acceptance, even when there are outstanding medical bills at the time, would not constitute an unreasonable resistance to the payment of compensation. For example, if an employer receives notice of a claim on June 1, it will have 90 days — until August 29- — to accept the claim. And, assuming that it received the medical bills on the same date, the employer will have up to 14 additional days — until September 13 — to pay the bills. An employer could untimely accept on August 30 and still timely pay the bills on August 31. In such a case, the employer would have untimely accepted, but the timing of the acceptance would not have caused a delay in the payment of compensation. In other words, although it untimely accepted, it in no way “unreasonably resist[ed] the payment of compensation” within the meaning of ORS 656.382(1).
Thus, even if the majority is correct in asserting that a delay in acceptance can cause a delay in payment of benefits and thus constitute unreasonable resistance to the payment of compensation, the fact remains that whether such a *566delay in acceptance actually did so will depend on the facts of each case.
In this case, it is undisputed that the only reason that claimant’s medical bills were not timely paid was that they were returned to the claims examiner’s office from an auditing process marked “paid” when, in fact, they had not been paid. The board expressly found that the delay in payment of benefits was “[d]ue to an error by the processing agent’s billing service.” Thus, there is no evidence that the timing of the acceptance had anything to do with the timing of the payment of compensation. In such a case, the board’s award of attorney fees under ORS 656.382(1) was erroneous.
The majority ignores the board’s finding and insists that the facts of this case constitute an example of how a delay in acceptance may also constitute resistance to the payment of compensation. According to the majority, if employer had accepted within the 90 days permitted by the statute, it would have been required to pay claimant’s medical bills 14 days later. 192 Or App at 562. Because employer paid those bills long after the 14-day deadline, its acceptance delayed the payment of compensation. Id.
The majority’s argument, however, consists of no more than question begging. It assumes the very matter in contention, that is, whether in fact the delay in acceptance caused the delay in payment of compensation. As I have noted, the only finding on that point is that the delay in payment of compensation was a result of a processing error, not of the late acceptance of the claim. The majority ignores that finding. The majority insists that whether the delay in acceptance actually delayed payment is irrelevant because it delayed “processing.” 192 Or App at 562 n 3. Again, the majority assumes that to be the case. There is no finding or evidence that that is so.
I respectfully dissent.