Haskell Corp. v. Filippi

• Decision Date: 10 June 1997
• Citation: 152 Or.App. 117,953 P.2d 396
• Parties: In the Matter of the Compensation of Julio Filippi, Claimant. HASKELL CORPORATION and Employers Insurance of Wausau, a mutual company, Petitioners, v. Julio FILIPPI, SAIF Corporation, Oregon Parks and Recreation, and Circle C. Farms, Inc., Respondents. WCB 96-00397, 96-00383, 95-04502, 95-07470; CA A95201. . On Respondents SAIF Corporation and Oregon Parks and Recreation Motion to Dismiss Petitions for Judicial Review and Summary Affirm the Board's Order Denying Reconsideration
• Court: Oregon Court of Appeals

Page 396

953 P.2d 396

152 Or.App. 117

In the Matter of the Compensation of Julio Filippi, Claimant.

HASKELL CORPORATION and Employers Insurance of Wausau, a mutual company, Petitioners, v. Julio FILIPPI, SAIF Corporation, Oregon Parks and Recreation, and Circle C. Farms, Inc., Respondents.

WCB 96-00397, 96-00383, 95-04502, 95-07470; CA A95201.

Court of Appeals of Oregon.

On Respondents SAIF Corporation and

Oregon Parks and Recreation Motion to

Dismiss Petitions for Judicial Review

and Summary Affirm the Board's

Order Denying Reconsideration

June 10, 1997.

Decided Jan. 7, 1998.

David L. Runner, Special Assistant Attorney General, for motion.

David O. Horne, Portland, contra.

Before LANDAU, P.J., and HASELTON and ARMSTRONG, JJ.

HASELTON, Judge.

Employers Insurance of Wausau (Wausau) seeks judicial review of the Workers' Compensation Board's order on reconsideration, in which the Board modified and republished an order on review affirming the ALJ's determination of Wausau's responsibility under ORS 656.308(1) for claimant's condition. Alternatively, Wausau seeks judicial review of the Board's subsequent order denying Wausau's request that the Board abate and republish its order on reconsideration. Respondent SAIF Corporation has moved to dismiss the judicial review of the order on review and order on reconsideration and to summarily affirm the Board's subsequent order denying abatement and republication. In response, Wausau has moved to remand the case to the Board. We grant the motions to dismiss and to summarily affirm and deny the motion to remand.

The underlying facts pertaining to claimant's condition are not germane to our consideration of these motions. It suffices to say that Wausau and SAIF dispute responsibility for claimant's back condition. The ALJ concluded that Wausau's employer was responsible for that condition. Wausau sought review of the ALJ's order, and, on October 11, 1996, the Board issued an order on review affirming the ALJ's responsibility determination.

On November 7, 1996, Wausau filed with this court a timely petition for judicial review of the Board's order on review. On November 8, 1996, in response to claimant's motion, the Board withdrew its order on review for reconsideration. ¹

On December 6, 1996, the Board issued an order on reconsideration. The Board modified its order on review to award claimant $500 in attorney fees but otherwise republished its order on review in its entirety. Wausau did not file an amended petition for judicial review within 30 days of the Board's December 6, 1996 order.

On January 17, 1997, this court issued a notice of default to Wausau for failure to cause the record to be served and filed in connection with its November 7, 1996 petition for judicial review. At that point, according to Wausau's attorney, he discovered that he had not received a copy of the Board's December 6, 1996 order on reconsideration. On January 23, 1997, Wausau asked the Board to abate and republish its order on reconsideration because Wausau's attorney had not been served with that order. Wausau did not contend that it had not been served, only that its attorney had not been served.

On January 28, 1997, the Board denied Wausau's request. The Board noted that, for its order on reconsideration to become final, it was necessary only that the parties, and not their attorneys, be served. See, e.g., Berliner v. Weyerhaeuser Company, 92 Or.App. 264, 266 n. 1, 758 P.2d 384 (1988). Because Wausau admitted that it had received a copy of the order, the Board concluded that its December 6, 1996 order on reconsideration had become final by operation of law and that it was without authority to abate and reconsider that order. ²

On January 30, 1997, Wausau responded to our notice of default and moved for leave to cause the record to be filed and served. Also on January 30, 1997, Wausau filed an amended petition seeking judicial review of the Board's December 6, 1996 order on reconsideration or, alternatively, of the Board's January 28, 1997 order denying its request for abatement and republication. On February 3, 1997, we granted Wausau relief from default.

SAIF moves to dismiss Wausau's petition for judicial review as to the October 11, 1996 order on review and the December 6, 1996 order on reconsideration and to summarily affirm the Board's January 28, 1997 order denying Wausau's request for abatement and republication of the order on reconsideration. SAIF contends that we lack jurisdiction with respect to the first two matters. SAIF acknowledges that the original petition for judicial review of the October 11, 1996 order was timely. However, SAIF contends that, because the Board withdrew that order and allowed reconsideration within 30 days of October 11, 1996, that order was rendered a "nullity," and, notwithstanding the intervening petition for judicial review, this court's jurisdiction was "extinguished." ³ SAIF further argues that, under ORS 656.295(8), if Wausau wished to challenge the Board's December 6, 1996 order on reconsideration, it had to file an amended petition for judicial review within 30 days, i.e., no later than January 6, 1997. ⁴ Because Wausau did not file an amended petition for judicial review until January 30, 1997, SAIF asserts that we lack jurisdiction to review the December 6, 1996 order and that the only matter properly before us is the January 28, 1997 order.

Wausau makes three responses: (1) SAIF's jurisdictional objection is "untimely." ⁵ (2) The Board erred in concluding that the order on reconsideration had become final 30 days after December 6, 1996 regardless of whether Wausau's attorney was served with that order--i.e., that service on a party's attorney is not a prerequisite of finality. (3) Notwithstanding the Board's alternative factual finding that Wausau's attorney had actually been served, see 152 Or.App. at 120 n. 2, 953 P.2d at 397, we should remand to the Board for an evidentiary hearing on that matter.

Wausau's "timeliness" argument is unavailing. A motion challenging this court's subject matter jurisdiction can be raised at any time. ORAP 7.05(1)(c); State ex rel. Juv. Dept. v. Paull, 129 Or.App. 227, 229, 878 P.2d 1135 (1994) (state moved to dismiss for lack of appellate jurisdiction after it waived the filing of a brief and indicated it would not appear in the case); Blundell v. Holm, 73 Or.App. 346, 698 P.2d 981 (1985) (motion to dismiss for lack of appellate jurisdiction made after our decision had been issued). Indeed, even if parties never raise the issue, we are obligated to consider our jurisdiction. See, e.g., Emmert Industrial Corp. v. Douglass, 130 Or.App. 267, 269, 881 P.2d 827, rev. den. 320 Or. 325, 883 P.2d 1303 (1994). Cf. State v. Threet, 294 Or. 1, 4, 653 P.2d 960 (1982) (appellate court jurisdiction cannot be conferred by stipulation of the parties). Thus, whether or not SAIF previously asserted that we lack jurisdiction, we are required to examine the issue.

Wausau next argues that the Board's December 6, 1996 order on reconsideration is a "nullity" or "invalid" because its attorney was not served with the order. Although the argument is somewhat amorphous, we understand Wausau to be contending that, if the December 6, 1996 order was not served on its attorney, that order did not become "final" under ORS 656.295(8)--i.e., unreviewable--before Wausau filed its amended petition for judicial review and, thus, it is reviewable within the ambit of the amended petition for review.

We reject that argument. Pursuant to ORS 656.295(8), a petition for judicial review of any Board order must be made within 30 days after the order is mailed "to the parties." ⁶ If no petition for judicial review is filed within 30 days, the order is unreviewable by this court. See Southwest Forest Industries v. Anders, 299 Or. 205, 218, 701 P.2d 432 (1985) ("No later than midnight on the 30th day the order is final, both internally and externally."); see also ORS 656.295(7) (requiring service of order on "the parties").

ORS 656.005(21) defines "party" as "a claimant for compensation, the employer of the injured worker at the time of injury and the insurer, if any, of such employer." ORS 656.005(21). See also ORS 656.003 ("Except where the context otherwise requires, the definitions given in this chapter govern its construction."). Nothing in ORS 656.295(7) or (8) expands the definition of "party" or requires service on or mailing to a party's attorney before the 30-day period is triggered. See generally Berliner v. Weyerhaeuser Company, 92 Or.App. 264, 266 n. 1, 758 P.2d 384 (1988) (in addressing whether mailing of Board order complied with ORS 656.295(8), we observed, "Claimant is the only party claiming that he did not receive the order; his attorney asserts that he did not receive it either.") (emphasis in original); cf. United Pacific Ins. v. Harris, 63 Or.App. 256, 258 n. 1, 663 P.2d 1307, rev. den. 295 Or. 730, 670 P.2d 1035 (1983) (denying motion to dismiss under ORCP 9 A on ground that an insurer's attorney was not served with the petition for judicial review: ORS 656.298(3) "requires that a notice of appeal be sent to all parties, [but] does not require that it be sent to all attorneys representing the parties") (emphasis in original). ⁷ Thus, Wausau's attorney's receipt, or nonreceipt, of the December 6, 1996 order on reconsideration was immaterial to the determination of whether that order became final for purposes of ORS 656.795(8). ⁸ Because Wausau did not file an amended petition within 30 days, that order became final and unreviewable. ⁹

That, however, does not end our inquiry. Although Wausau does not so argue, SAIF acknowledges that it is at least arguable that Wausau was not required to file any amended petition to obtain review of the December 6 order on reconsideration, that is, that the original November 7 petition was sufficient by itself to confer jurisdiction to review not only the original (and...