Sayers v. Employment Div., State of Or.
| Decision Date | 15 September 1982 |
| Docket Number | No. 81-AB-1548,81-AB-1548 |
| Citation | 59 Or.App. 270,650 P.2d 1024 |
| Parties | Jeremy J. SAYERS, Petitioner, v. EMPLOYMENT DIVISION, STATE OF OREGON, Respondent. ; CA A23610. |
| Court | Oregon Court of Appeals |
Jeremy J. Sayers, filed the brief pro se.
Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen., William F. Gary, Sol. Gen., and Christine L. Dickey, Asst. Atty. Gen., Salem, filed the brief for respondent.
Before GILLETTE, P. J., and WARDEN and YOUNG, JJ.
This is an unemployment compensation case in which petitioner challenges a determination by the Employment Appeals Board (EAB) that his request for a hearing on certain adverse rulings of the Employment Division was not timely filed and that he has not shown "good cause" for his late request. We affirm.
Claimant was employed by Childrens' Services Division of the Department of Human Resources as a counselor from September 16, 1976, until October 6, 1980. On October 6, 1980, he quit his job because of general dissatisfaction with working conditions. On October 7, 1980, he filed a claim for unemployment benefits. On the claim form he stated that the reason for his work separation was "lack of work." On a form entitled "Eligibility Profile" filled out the same day, claimant stated his reason for leaving work was the "layoff situation." On the basis of his application, claimant was paid $414 in benefits.
On November 19, 1980, an investigator asked claimant to make a statement concerning his reasons for leaving work. In that statement claimant admitted that he had quit his job because of the layoffs being made in the office and other dissatisfactions. On November 21, 1980, an investigation report was filed that concluded that claimant had intentionally misrepresented a material fact on his claim forms.
On December 9, 1980, claimant visited an Employment Division office, at which time, according to his testimony, he notified the Employment Division personnel orally and by submission of a piece of paper that his address would temporarily be changed to one in Japan beginning December 14, 1980. The Employment Division has no record that such a report of a change of address was submitted.
On the same day, December 9, claimant filed a Continued Claim Form for the week ending December 6, 1980. Question # 7 on that form asks, "Has your address since your last report changed?" Claimant answered "No." The form was signed by claimant and accepted by the Division on December 9, 1980. Subsequently, claimant filed a Continued Claim Form for the weeks ending December 13 and December 20, 1980. Question # 7 was again answered in the negative. The form was signed by claimant on December 20 and received by the Employment Division on December 23, 1980.
Claimant left the country for Japan on December 14, 1980. On December 23, 1980, he wrote a letter to the Employment Division notifying it of his change of address and requesting information on any special responsibilities he had while out of the country. The letter was not received by the Employment Division until January 19, 1981. Meanwhile, on December 30, 1980, two Administrative Decisions were issued and mailed to claimant at his Portland address. One decision denied his claim because he left work without good cause, and the other denied his claim and assessed an overpayment on the basis of the additional reason that he had intentionally made a material misrepresentation on his claim forms.
Claimant spent most of January, 1981, in Nepal, returning to Japan at the end of the month. At that time he received a "Reply to Inquiry" from the Employment Division in response to his letter of January 23rd. The reply received by claimant merely made reference to some enclosed provisions of the law but made no reference to the administrative decisions of December 30, 1980. On the other hand, the copy of the reply in the Employment Division file did make reference to the adverse administrative decisions of December 30.
One of the administrative decisions was forwarded to Japan and received by claimant on approximately April 20, 1981. Claimant returned to the United States on April 22, and found the other decision in his mail in Portland. He went to the Employment Division office on April 24th but did not request a hearing. He returned to the Employment Division office on April 28, 1981, and requested a hearing.
A hearing was held on June 17, 1981. The referee's decision was issued June 29, 1981, concluding that claimant had not made a timely request for a hearing. On July 2, 1981, he requested a review by EAB. During August, he corresponded with the EAB about rescheduling the hearing so he could make an oral presentation. On September 2, 1981, the EAB remanded the matter to the referee for taking additional evidence on the issue of the timeliness of claimant's request for a hearing. A second hearing was held on November 6, 1981. The matter was certified to EAB on December 4, 1981; EAB issued its decision on December 29, 1981, affirming the referee's decision.
Before answering petitioner's assignments of error, respondent first moves to dismiss this petition for review. Respondent's motion states:
Respondent's motion is in error in one (unimportant) particular: the two cases were not decided by precisely the same panel. Only two judges participated in both decisions; the third judge on each panel was different. However, viewing with hindsight, we share respondent's difficulty in perceiving a distinction between the two cases.
In Herron v. Employment Division, supra, as in this case, petitioner sought judicial review of EAB decision denying him a hearing on his unemployment compensation claim because his request for a hearing was not timely filed and, EAB held, there was no "good cause" excusing his late filing. There was no question in Herron that the hearing request was late; the only issue was whether the administrator had erred in determining that the petitioner had not shown "good cause" for the delay in filing. Both a referee and the EAB agreed that petitioner had not. While petitioner's appeal was pending before this court, he moved, pursuant to ORS 183.480, 1 to present additional evidence. The motion was granted, and petitioner presented his additional evidence, an affidavit, which more thoroughly outlined his reasons for late filing. EAB reaffirmed its earlier opinion.
The case being once again before us, we dismissed the appeal with the following explanation:
We did not, in Herron, explain why we did not regard the matter before us as a contested case, nor did we suggest what additional facts (or factors) would have made it a contested case.
Brooks v. Employment Division, supra, presented the same issue, i.e., whether a petitioner had shown "good cause" for the indisputably late filing of her claim. A hearing was held on the issue. EAB ultimately concluded that, assuming claimant's explanation for her failure to file a timely claim was true, she had not shown "good cause." This court, without any reference to Herron or, indeed, any suggestion that there could be a question concerning appealability, affirmed on the merits.
Our examination of the cases does not produce a basis for distinguishing them. The only conceivable procedural distinction--the Herron petitioner was denied benefits apparently without a formal hearing on "good cause," while the Brooks petitioner received such a hearing--cannot be legally significant because the Herron petitioner did, in fact, receive an opportunity to present evidence pursuant to ORS 183.480. 2
A "contested case" is defined by ORS 183.310(2), which provides:
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