Schommer v. Liberty Northwest Ins. Group

“[W]hether a claimant’s attorney untimely filed a brief, or did not file a brief at all, is a factor to be considered in assessing the appropriate amount of fees to award,” but the lack of a timely filed brief does not preclude collection of attorney fees. Shearer’s Foods v. Hoffnagle, 363 Or 147, 420 P3d 625 (2018).

Claimant sought judicial review of the Worker’s Compensation Board’s final order resolving Insurer's appeal from the decision of an Administrative Law Judge. Claimant assigned error to the board’s ruling that he was not entitled to attorney fees. On appeal, Claimant argued ORS 656.382(2) and ORS 656.386(6), as interpreted by the Supreme Court, did not require him to file a brief requesting attorney's fees. In response, Insurer argued that Claimant’s failure to file a timely brief precluded his collection of attorney fees. “[W]hether a claimant’s attorney untimely filed a brief, or did not file a brief at all, is a factor to be considered in assessing the appropriate amount of fees to award,” but the lack of a timely filed brief does not preclude collection of attorney fees. Shearer’s Foods v. Hoffnagle, 363 Or 147, 420 P3d 625 (2018). The Court held that Claimant may be entitled to attorney fees despite not filing a timely brief. Reversed and remanded.