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In re Compensation of Schommer

Court of Appeals of Oregon

September 19, 2018

In the Matter of the Compensation of Craig Schommer, Claimant.
v.
LIBERTY NORTHWEST INSURANCE CORPORATION and AC Schommer & Sons, Respondents. Craig SCHOMMER, Petitioner,

          Argued and submitted March 22, 2018.

          Workers' Compensation Board 1101711.

          Theodore P. Heus argued the cause for petitioner. Also on the briefs was Preston Bunnell, LLP.

          Camilla Asante Thurmond argued the cause for respondents. On the brief was Carrie Wipplinger.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Claimant seeks judicial review of a final order of the Workers' Compensation Board resolving insurer's appeal of a decision of an administrative law judge. In the assignments of error that the Court of Appeals addresses, claimant challenges the board's determination that he is not entitled to attorney fees because claimant's attorney untimely fled his brief before the board, or, alternatively, because insurer and not claimant initiated the appeal. Claimant argues that the board's conclusion is based on an erroneous interpretation of ORS 656.382(2) and ORS 656.386(1). Held: The board's fee determination rested on mistaken interpretations of ORS 656.386 and ORS 656.382, in view of how the Supreme Court construed those provisions in Shearer's Foods v. Hoffnagle, 363 Or. 147, 420 P.3d 625 (2018) and SAIF v. DeLeon, 352 Or. 130, 282 P.3d 800 (2012), respectively. A claimant's entitlement to fees under ORS 656.382(2) and ORS 656.386(1) does not turn on what particular services the claimant's attorney performed, including whether the claimant's attorney fled a brief in a particular [294 Or.App. 148] tribunal or initiated the appeal. The dispositive question is whether claimant ultimately prevailed.

         Reversed and remanded for reconsideration of claimant's request for attorney fees; otherwise affirmed.

         [294 Or.App. 149] LAGESEN, P. J.

         Claimant seeks judicial review of a final order of the Workers' Compensation Board resolving insurer's appeal of a decision of an administrative law judge (ALJ). In that order, the board did four things that pertain to claimant's petition: (1) upheld insurer's denials of claimed bilateral hip impingement syndrome and capsular tear conditions; (2) set aside insurer's denial of claimant's combined bilateral hip strain/arthritic condition; (3) concluded that claimant's attorney's failure to timely file a brief before the board meant that claimant was not entitled to recover attorney fees for services before the board under either ORS 656.382(2)[1]or ORS 656.386(1);[2] and (4) further concluded that, because insurer, and not claimant, had initiated the appeal before the board, under Shoulders v. SAIF, 300 Or. 606, 716 P.2d 751 (1986), claimant was not entitled to recover fees under ORS 656.386(1) for that alternative reason. In his first assignment of error, claimant contends that the board's finding that his claimed hip impingement syndrome and capsular tear conditions are not compensable is not supported by [294 Or.App. 150] substantial evidence and substantial reason. In his second and third assignments of error, claimant challenges the board's determination regarding his entitlement to attorney fees under ORS 656.382(2) and ORS 656.386(1), contending that it is based on an erroneous interpretation of those statutory provisions.

         We reject claimant's first assignment of error without further written discussion. However, on review for legal error, SAIF v. Bales, 274 Or.App. 700, 704, 360 P.3d 1281 (2015), rev den, 360 Or. 237 (2016), we agree with claimant that the board's fee determination rested on mistaken interpretations of ORS 656.386 and ORS 656.382, in view of how the Supreme Court has construed those provisions in Shearer's Foods v. Hoffnagle, 363 Or. 147, 420 P.3d 625 (2018), and SAIF v. DeLeon, 352 Or. 130, 282 P.3d 800 (2012), respectively.

         The relevant facts are largely procedural and not disputed. A building collapsed on claimant while he was at work, crushing him. Claimant suffered significant injuries as a result of the accident. As part of his workers' compensation claim, claimant requested that insurer accept multiple conditions that claimant contended were caused by the accident. Insurer accepted a number of those conditions but denied the compensability of others, including a combined bilateral hip strain/arthritic condition. Claimant requested a hearing before an ALJ on the denials. Following the hearing, the ALJ set aside insurer's denial of the combined hip strain/arthritis condition, as well as one other denial.

         Insurer appealed the ALJ's decision to the board, and claimant cross-appealed. Claimant's attorney before the board did not timely file claimant's brief on the appeal and cross-appeal and the board struck it. The board affirmed the ALJ's order with respect to the combined hip strain/ arthritis condition, reversed with respect to the other denial at issue, and otherwise sustained the ALJ's order.

         Although the board sustained the ALJ's decision as to the combined hip strain/arthritis condition, the board rejected claimant's arguments that he was entitled to recover attorney fees for services provided during board review under either ORS 656.382(2) or ORS 656.386(1). The [294 Or.App. 151] board explained that, under its own case law, claimant's failure to timely file a brief precluded him from recovering fees. Claimant sought reconsideration on that point, but the board adhered to its previous conclusion. It elaborated on its reasoning as to why claimant could not recover fees because he had not timely filed his brief:

"In our prior order, noting that claimant's respondent's/ cross-appellant's brief was untimely filed, we declined to award an attorney fee under ORS 656.382(2) for claimant's counsel's services on review. See Shirley M. Brown, 40 Van Natta 879 (1988). On reconsideration, claimant contends that a fee under that statute is mandatory when a claimant prevails on Board review, and asserts that our decision in Brown was wrongly decided. Alternatively, he asserts that he is entitled to an attorney ...

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