Sekermestrovich v. State Acc. Ins. Fund

• Jurisdiction: Oregon
• Parties: In the Matter of the Compensation of Ida May SEKERMESTROVICH, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Respondent. . *
• Citation: 573 P.2d 275,280 Or. 723
• Court: Oregon Supreme Court
• Decision Date: 28 December 1977

Page 275

573 P.2d 275

280 Or. 723

In the Matter of the Compensation of Ida May SEKERMESTROVICH, Petitioner, v.STATE ACCIDENT INSURANCE FUND, Respondent.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Sept. 9, 1977.

Decided Dec. 28, 1977.

S. David Eves of Ringo, Walton & Eves, P. C., Corvallis, argued the cause and filed briefs for petitioner.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent.With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol.Gen., Salem.

HOWELL, Justice.

This is a workers' compensation claim on review in this court from the Court of Appeals, 28 Or.App. 901, 561 P.2d 1043(1977).The sole issue before us is whether or not Mrs. Sekermestrovich complied with ORS 656.319(1)(b), which requires a claimant who fails to file a request for a hearing within 60 days after denial of her claim to make a showing of good cause to be able to file thereafter.

Ida May Sekermestrovich filed a claim with the State Accident Insurance Fund and was notified on June 25, 1974, that her claim was denied.She immediately contacted an attorney to help her prosecute her claim.On December 11, 1974, Mrs. Sekermestrovich, dissatisfied with her attorney's service, contacted a second attorney, whereupon she learned that her first attorney had not filed the necessary request for a hearing.Her new attorney filed the request for a hearing on December 13, 1974.

The time for filing a request for a hearing is regulated by ORS 656.319, which provides, in part:

"(1) With respect to objection by a claimant to denial of a claim for compensation under ORS 656.262, a hearing thereon shall not be granted and the claim shall not be enforceable unless:

"(a) A request for hearing is filed not later than the 60th day after the claimant was notified of the denial; or

"(b) The request is filed not later than the 180th day after notification of denial and the claimant establishes at a hearing that there was good cause for failure to file the request by the 60th day after notification of denial."

Mrs. Sekermestrovich did not file within the 60-day period in subsection (a), but did file within the 180-day period in subsection (b).The hearings officer found that Mrs. Sekermestrovich had shown good cause under ORS 656.319(1)(b) and found for her on the merits of her claim.The Workmen's Compensation Board denied compensation after de novo review of the record on the ground that claimant had not shown good cause under the statute.The Board did not reach the merits.The circuit court and the Court of Appeals each affirmed on the basis of a lack of good cause under the statute.The precise issue presented here is whether Mrs. Sekermestrovich's reliance on her first attorney constitutes good cause within the meaning of the statute when the attorney failed to file the necessary request for a hearing.

This court has never addressed the question of what is or what is not good cause for failure to file a request for a hearing under ORS 656.319(1)(b).The Court of Appeals has found good cause to include a claimant's fear of losing his job if he filed, Riddel v. Sears, Roebuck & Co., 8 Or.App. 438, 494 P.2d 901(1972), and the failure of the agency to send the notice to the correct address, Burkholder v. SAIF, 11 Or.App. 334, 502 P.2d 1394(1972).Whether or not the ordinary negligence of a party's attorney constitutes good cause has not been addressed before.

SAIF, the respondent, argues that ORS 656.319(1)(b) is similar in purpose and structure to ORS 18.160, allowing a motion to set aside a judgment in a civil case, and that the two statutes should be similarly construed.

ORS 18.160 provides:

"The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect."

The respondent states, and claimant concedes, that we have repeatedly held that the negligence of an attorney is not excusable neglect under ORS 18.160 unless the attorney's reason for failure to file would be excusable had it been attributed to the party.Brand v. Baker, 42 Or. 426, 434, 71 P. 320(1903).SeeCarlson v. Bankers Discount Corp. et al., 107 Or. 686, 215 P. 986(1923); Longyear, Admx. v. Edwards, 217 Or. 314, 342 P.2d 762(1959).Respondent further argues that there is no reason to establish a different rule for workers' compensation cases.

Claimant argues that there are valid reasons for distinguishing those civil cases and applying a different rule for compensation cases.Claimant points out that such a rule would undermine several of the basic policies of the workers' compensation system.She argues that the system was created to provide for quick, inexpensive decisions before an administrative agency with expertise in the area, and that an adverse decision here would limit her remedy to a civil action against her first attorney and that such an action is neither quick nor inexpensive.It would also require a decision on the merits of her claim outside the mechanism of the Workers' Compensation Board.Further, claimant argues that a major policy of the act is to provide recovery for industrial disabilities without forcing the claimant to make a showing of someone else's fault and that affirming the Court of Appeals would force her to make a showing of fault by her attorney, contrary to that policy.

We do not feel that these arguments are of sufficient weight to justify one rule in civil cases and another in workers' compensation cases.Thus, our position in the cases construing ORS 18.160 is dispositive of the controversy.We therefore conclude that the failure of one's attorney to file the request for a hearing does not constitute good cause under ORS 656.319(1)(b) unless the attorney's reason for failing to file would be good cause if attributed to the claimant.¹

Affirmed.

LENT, Justice, dissenting.

This is a worker's compensation case arising out of the State Accident Insurance Fund's denial of the claim.

The Fund notified claimant on June 25, 1974, that her claim was denied and, pursuant to the statute, gave notice to her that if dissatisfied she could request a hearing, but that failure to do so within 60 days would result in the loss of her right to object to the denial.Claimant read the notice of her right to request a hearing, and within four days thereafter she consulted an attorney, indicating to him her objection to the letter of denial.¹ ORS 656.283(2) provides that a request for hearing may be made on behalf of the claimant by her attorney.

During the next five months claimant and her attorney communicated with each other regularly by both telephone and mail.The attorney failed to file a request for hearing within the 60-day period.On September 5, 1974, he wrote to the Fund, enclosing medical reports from two treating doctors and stating that he did not file a request for hearing within the 60-day period because he had "just now received" the letter from one of the doctors.Although he did not specifically request a hearing, he requested of the Fund "your consideration in this matter on behalf of Mrs. Sekermestrovich."Apparently, following this letter, the attorney and the Fund engaged in some settlement negotiations, and on November 8, 1974, the attorney communicated by letter to the claimant an offer by the Fund to settle the matter for $500.She inquired of the attorney whether this meant the Fund was accepting liability and whether the Fund would pay her medical expenses.By letter dated December 5, 1974, the attorney wrote to her advising that if she accepted the settlement offer that "would close the claim and would be final."

The claimant then had some conversation with the attorney, in which she became dissatisfied with his advice or reluctance to give advice as to whether she should settle for $500 and obtained the attorney's permission to pick up her file to consult another attorney.On December 11, 1974, she brought her file to her present lawyers, who discovered that no request for hearing had yet been filed, and through them claimant first learned that such was the case.Through her new lawyers she forthwith filed a request for hearing, accompanied by an affidavit swearing in pertinent part:

" * * * Upon receipt of this notice of denial, I contacted an attorney in Philomath to represent my interests relative to the above-entitled claim and assumed that the matter would be processed in an orderly fashion before the Workmen's Compensation Board.It was only on today's date, December 11, 1974, that I discovered that a request for hearing had not been filed.

"I believe that my claim is valid and that hearing should be held upon the merits."

Upon hearing, the referee found that claimant had shown good cause upon the foregoing facts for her failure to request a hearing within 60 days.The Workmen's Compensation Board reversed, holding "that claimant is chargeable with her attorney's negligence in not timely filing a request for a hearing on the denial; her reliance upon him does not establish good cause for failure to file within 60 days."²The Board stated, in support of its decision, that "(t)he procedural requirements of the Workmen's Compensation Law are to be strictly construed.Gerber v. SIAC, 146 (sic) Or 353."(Board's emphasis).

Claimant appealed to the circuit court, which affirmed the Board, and then to the Court of Appeals, which affirmed.³We granted claimant's petition for review, and I would reverse.

The Fund contends, and the majority of this court agrees, that "good cause" as used in ORS 656.319(1)(b)(text set forth in footnote 1 of this dissent) must be construed as are the words "mistake, inadvertence, surprise or excusable neglect" contained in ORS 18.160, ⁴a statute allowing a court"in its discretion" to set aside a...