Opinion
No. 386-901
Argued July 26, 1973
Affirmed September 10, 1973
Appeal from Circuit Court, Multnomah County.
JAMES R. ELLIS, Judge.
Nikolaus Albrecht, Portland, argued the cause and filed the brief for appellant.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and FOLEY and FORT, Judges.
AFFIRMED.
Claimant attempts to appeal from a Workmen's Compensation Board order dated November 17, 1972, which recited that copies of the order had been mailed to the parties (including claimant) on that date, November 17, 1972. Claimant's appeal was filed December 29, 1972, more than 30 days after the date of mailing.
ORS 656.295 (8) provides:
"An order of the board is final unless within 30 days after the date of mailing of copies of such order to the parties, one of the parties appeals to the circuit court for judicial review pursuant to ORS 656.298. * * *"
ORS 656.298 provides that the notice of appeal must be filed within the 30 days specified in ORS 656.295 (8).
For reasons which are not disclosed another copy of the same order was mailed to the parties on December 1, 1972. It read as follows:
"December 1, 1972
"TO ALL CONCERNED PARTIES:
Re: Kenneth G. Wise WCB Case No. 71-2494 SAIF Claim No. C 267527
"The Board order on review in the above matter was issued November 17, 1972. It appears there has been a discrepancy in mailing copies of this order and to insure all parties being advised, we are this date mailing another copy to all parties as indicated below:
Kenneth G. Wise, P.O. Box 115, Buxton, Oregon 97109
Nikolaus Albrecht, Attorney, 1123 SW Yamhill, Portland, Oregon 97205
Forest Grove Iron Machine Works, Inc., 2615 23rd Avenue, Forest Grove, Oregon 97116
SAIF, Claims Division, Labor Industries Building, Salem, Oregon 97310, Attn: Mr. Ed Swenson
Department of Justice, Trial Division, State Office Building, Salem, Oregon 97310
"WORKMEN'S COMPENSATION BOARD /s/ Norman F. Kelley, Counsel
cc — Mr. Dan O'Leary, Attorney"
Claimant contends that this letter changed the date of mailing of the order to December 1, 1972, and thus extended his appeal time. The circuit court disagreed with claimant, pointing out that the December 1 letter recited that "[t]he Board order on review * * * was issued November 17, 1972," and the letter further said, "we are this date mailing another copy to all parties * * *." The circuit court concluded that the order was mailed on November 17, 1972, and because claimant did not timely file his notice of appeal, it did not have jurisdiction of the appeal and by order dismissed it. Claimant does not assert that he did not receive the November 17, 1972, mailing, only that the December 1, 1972, letter extended the time for his appeal. We agree with the circuit court that this contention is without merit.
Affirmed.