In the Matter of the Compensation of Craig Schommer, Claimant.
LIBERTY NORTHWEST INSURANCE CORPORATION and AC Schommer & Sons, Respondents. Craig SCHOMMER, Petitioner,
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.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
and remanded for reconsideration of claimant's request
for attorney fees; otherwise affirmed.
Or.App. 149] LAGESEN, P. J.
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)or ORS 656.386(1); 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.
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.
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.
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.
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 ...