Opinion
WCB 84-13386; CA A39337
Argued and submitted December 17, 1986,
Reversed and remanded November 12, 1987 Reconsideration denied January 29, 1987 Petition for review allowed February 23, 1988
Judicial Review from Workers' Compensation Board.
Brendan Stocklin-Enright, Portland, argued the cause for petitioner. With him on the brief were Terrance C. Hunt and Tamblyn Bush, Portland.
Darrell E. Bewley, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Jeff Ellis, Certified Law Student, Salem.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
DEITS, J.
Reversed and remanded.
Richardson, P.J., dissenting.
Claimant seeks review of an order of the Workers' Compensation Board which dismissed her appeal for lack of jurisdiction. The referee issued an order denying the claim on August 12, 1985; the Board did not receive a request for review within 30 days. ORS 656.289 (3). In February 1986, the Board received an affidavit from claimant's attorney, stating that a request had been mailed by regular mail to the Board on September 6, 1985, within the statutory time limit. We held in Weyerhaeuser Company v. Miller, 88 Or. App. 286, 745 P.2d 429 (1987), that the adoption of OAR 438-05-040 (4)(b) requiring proof from the post office that mailing of the request occurred within the time limit imposed by ORS 656.289 (3) exceeds the Board's authority, and that the Board should determine, as a jurisdictional fact, whether the request was timely mailed. The same holding applies on these facts.
Reversed and remanded.
For the reasons stated in my dissent in Weyerhaeuser Company v. Miller, 88 Or. App. 286, 745 P.2d 429 (1987), I would affirm the dismissal of claimant's appeal.