Ogden Aviation v. Lay
Decision Date | 31 July 1996 |
Citation | 142 Or.App. 469,921 P.2d 1321 |
Parties | In the Matter of the Compensation of Debra L. Lay, Claimant. OGDEN AVIATION and AIG Claim Services (AIGCS), Petitioners, v. Debra L. LAY, Respondent. 94-04856; CA A89107. |
Court | Oregon Court of Appeals |
Jerald P. Keene, Tigard, argued the cause and filed the brief for petitioners.
Glen H. Downs, Portland, argued the cause for respondent. With him on the brief were Gerald C. Doblie and Doblie & Associates.
Before DEITS, P.J., and DeMUNIZ and HASELTON, JJ.
Employer seeks review of an order of the Workers' Compensation Board 1 finding that claimant established good cause for filing a request for hearing beyond 60 days but within 180 days following the denial of her compensability claim. ORS 656.319(1)(b). 2 We affirm.
Claimant mailed the notice of denial to her attorney's office. The attorney's legal secretary did not put the denial on the attorney's desk. The Board found:
Employer does not dispute that the Board's findings of fact are supported by substantial evidence but argues that the Board applied the incorrect legal standard to those facts. It contends that the Board erred in holding that "good cause" could be established by a showing that the request was not timely filed because of the omission or negligence of someone other than the person specifically responsible for "filing" the request for hearing. Employer contends that, under Brown v. EBI Companies, 289 Or. 455, 460, 616 P.2d 457 (1980), the correct standard does not depend on responsibility for filing but, rather responsibility for "recognizing and correctly handling" the denial. Claimant responds that the Board's order should be affirmed because "good cause" is a delegative term under Springfield Education Assn. v. School Dist., 290 Or. 217, 621 P.2d 547 (1980), and the Board's determination here of what constitutes "good cause" is within the range of its delegated authority. 3
In SAIF v. Curtis, 107 Or.App. 625, 813 P.2d 1112 (1991), we discussed our standard of review of the Board's determination of "good cause" under ORS 656.319. In particular, we concluded that, notwithstanding a history of reviewing such determinations de novo, our review was properly governed by standards prescribed in the Administrative Procedures Act. ORS 183.482. We explained that we would reverse the Board's determination of good cause Id. at 630, 813 P.2d 1112. 4
For the reasons that follow, we conclude that Curtis, perhaps inadvertently, may have signaled a misleading standard of review. Because, as we explain below, the ultimate determination of whether particular circumstances constitute "good cause" for filing an untimely request for a hearing under ORS 656.319(1)(b) is a matter within the Board's delegative discretion, that ultimate determination is more precisely and pertinently reviewed under ORS 183.482(8)(b), 5 not ORS 183.482(8)(a).
"Good cause" is a "delegative term" within Springfield 's rubric. In McPherson v. Employment Division, 285 Or. 541, 591 P.2d 1381 (1979), the court addressed the proper standard for reviewing the Employment Division's determination of whether an employee had "good cause" to leave her employment. The court concluded that "good cause" within the meaning of ORS 657.176(2)(c)
Brown v. EBI involved a materially different sort of "good cause"--that is, "good cause" for an untimely request for a hearing under ORS 656.319(1). In remanding the Board's determination that a pre-McPherson decision, Sekermestrovich v. SAIF, 280 Or. 723, 573 P.2d 275 (1977), foreclosed any finding of good cause, the court observed:
" '[G]ood cause' under ORS 656.319(1)(b) is not a matter of 'discretion' but of agency judgment in the sense stated in McPherson[.]" Brown, 289 Or. at 460 n. 3, 616 P.2d 457.
"290 Or. at 228-29, 621 P.2d 547 (emphasis supplied).
Thereafter, in Sayers v. Employment Division, 59 Or.App. 270, 650 P.2d 1024 (1982), we reviewed the Employment Division's determination that the petitioner had not demonstrated "good cause" for an untimely request for hearing under ORS 657.875. 6 Referring to McPherson and Springfield and to Brown, which involved the directly analogous workers' compensation "untimely request for hearing"/"good cause" statute, we concluded that the Employment Division's determination of "good cause," and particularly its application of its own rule defining "good cause" for an untimely filing, was "a matter of agency policy" subject to review under ORS 183.482(8)(b). Sayers, 59 Or.App. at 281, 650 P.2d 1024.
Notwithstanding our analysis in Sayers, between the enunciation of the McPherson/ Springfield analysis in the early 1980's and the abrogation of this court's de novo review in workers' compensation cases in 1987, Oregon Laws 1987, chapter 884, section 12a, we continued to engage in de novo review determinations of good cause under ORS 656.319(1). See Curtis, 107 Or.App. at 629, 813 P.2d 1112 (describing history). In doing so, we questioned the correctness of the Supreme Court's suggestion in Brown that determinations of "good cause" under the workers' compensation laws were subject to APA review:
Anderson v. Publishers Paper Co., 78 Or.App. 513, 517-18, 717 P.2d 635, rev den 301 Or. 666, 725 P.2d 1293 (1986), following remand 93 Or.App. 516, 763 P.2d 398 (1988) (footnote omitted).
But see id. at 518-19, 717 P.2d 635 (Warren, J., dissenting) .
In 1987, the legislature eliminated our de novo review in workers' compensation cases, replacing it with APA-type review. ORS 656.298(6) () Nevertheless, vestiges of our adherence to de novo review of "good cause" determinations persisted until Curtis in 1991. See 107 Or.App. at 629-30, 813 P.2d 1112. After reviewing that history in Curtis, we concluded that our review...
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