SAIF Corp. v. Curtis

• Decision Date: 19 June 1991
• Parties: In the Matter of the Compensation of Loren P. Curtis, Claimant. SAIF CORPORATION and Precision Castparts, Petitioners, v. Loren P. CURTIS, Respondent. 88-12404; CA A65942.
• Court: Oregon Court of Appeals

Page 1112

813 P.2d 1112

107 Or.App. 625

In the Matter of the Compensation of Loren P. Curtis, Claimant SAIF CORPORATION and Precision Castparts, Petitioners, v. Loren P. CURTIS, Respondent.

88-12404; CA A65942.

Court of Appeals of Oregon.

Argued and Submitted Feb. 15, 1991.

Decided June 19, 1991.

John T. Bagg, Asst. Atty. Gen., Salem, argued the cause for petitioners. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Phil H. Ringle, Jr., Gladstone, argued the cause for respondent. With him on the brief was Marva C. Fabien, Gladstone.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

BUTTLER, Presiding Judge.

Employer seeks review of a decision of the Workers' Compensation Board affirming the referee and holding that claimant had good cause for filing his request for hearing on employer's denial more than 60 but less than 180 days after the notice of denial. ¹ We conclude that the Board's findings are supported by substantial evidence and write only to address the legal issue raised by the petition.

SAIF sent the notice of denial by certified mail to claimant at the address provided by him, which was the home of his parents. The Board found that claimant's father signed for the letter, but did not remember what he had done with it, and that claimant never received the notice and did not learn of it until his treating doctor informed him that his bill for back surgery had been denied. By that time, more than 60 but less than 180 days had passed since the notice was mailed. He immediately contacted an attorney, who filed a request for hearing.

The Board concluded that claimant had established good cause, relying on our recent decision in Giusti v. Adams, 102 Or.App. 329, 794 P.2d 451 (1990). There, we held that the Board's finding that the claimant had not received the notice of denial until after 60 days had passed supported its conclusion that the claimant had good cause for filing a late request for hearing within 180 days, "because this claimant could not be expected or required to file a request for a hearing until he had actually been notified of the denial." 102 Or.App. at 332, 794 P.2d 451.

Employer contends that it has met its obligation to give notice of the denial and that claimant has not met his burden to show good cause for his failure to timely appeal its denial. The Supreme Court

held in Norton v. Compensation Department, 252 Or. 75, 448 P.2d 382 (1968), that notification to the claimant occurs when the notice is mailed, see also Cowart v. SAIF, 86 Or.App. 748, 740 P.2d 249 (1987), rather than when it is received. That is to say that the time starts to run when the notice is mailed. That is not the issue here. We have held that a claimant's failure to receive a properly mailed notice can form the basis for a claim of good cause for failure to request a hearing within 60 days of the notice under appropriate circumstances. Giusti v. Adams, supra, 102 Or.App. at 333, 794 P.2d 451.

Employer contends that the Board erred in concluding that claimant had shown good cause. The three cases on which employer primarily relies are not helpful to it. In Anderson v. EBI Companies, 79 Or.App. 345, 349, 718 P.2d 1383, rev. den. 301 Or. 445, 723 P.2d 325 (1986), the claimant, who was incarcerated, asked that all correspondence be sent to his mother's house. The notice of denial was sent to that address; however, the claimant did not actually receive it until after he was released from prison approximately one month later. He did not request a hearing until more than 180 days after the date of the denial. We held that the request was untimely. The question of good cause was not relevant, because the request for hearing had been filed more than 180 days after the denial had been mailed, beyond the time during which a claimant may show good cause. See also Wright v. Bekins Moving and Storage Co., 97 Or.App. 45, 775 P.2d 857, rev. den. 308 Or. 466, 781 P.2d 1215 (1989).

In Kalakay v. City of Eugene, 92 Or.App. 699, 759 P.2d 336 (1988), the notice of denial was sent to the correct address for the claimant and her roommate, but the claimant did not personally receive it. She filed a request for hearing more than 180 days after the notice was sent. We affirmed the Board's decision that the request was untimely. Good cause was not an issue, because the request was not made within 180 days of notice of denial.

Neither Anderson v. EBI, supra, Wright v. Bekins Moving and Storage Co., supra, nor Kalakay v. City of Eugene, supra, presented the issue of good cause; they addressed only the validity of the notice and the timeliness of the request for hearing that was made more than 180 days after notice. They are not authority for the result that employer seeks and are not inconsistent with our opinion in Giusti Wine Co. v. Adams, supra, or the Board's opinion that nonreceipt of notice constitutes good cause under these circumstances.

As employer notes, we have long grappled with how we review the good cause determination. See Anderson v. Publishers Paper Co., 93 Or.App. 516, 763 P.2d 398 (1988); Giusti Wine Co. v. Adams, supra, 102 Or.App. at 334, 794 P.2d 451 (Graber, J., concurring.) In 1980, when our review of workers' compensation cases was de novo, the Supreme Court said, in Brown v. EBI Companies, 289 Or. 455, 460 n. 3, 616 P.2d 457 (1980), that the Board's determination of good cause is a matter of "agency judgment in the sense stated in McPherson v. Employment Division, 285 Or. 541, 591 P.2d 1381 (1979)." We questioned the correctness of that statement in our opinion in Anderson v. Publishers Paper Co., supra, but did not need to meet squarely the issue of the standard for our review at that time. We decided only that the Board should reconsider its decision, considering, as required by Sekermestrovich v. SAIF, 280 Or. 723, 573 P.2d 275 (1977), whether the failure timely to request a hearing was mistake, inadvertence or excusable neglect under ORCP 71B(1). Anderson v. Publishers Paper Co., 78 Or.App. 513, 517, 717 P.2d 635 (1986).

In several cases subsequent to Brown and Anderson, but not subject to the 1987 legislative changes eliminating de novo review, Or. Laws 1987, ch. 884, § 12a, we reviewed the question of good cause de novo, despite the Supreme Court's comment in Brown. Anderson v. Publishers Paper Co., supra, 93 Or.App. at 518, 763 P.2d 398; Barr v....