Southwest Forest Industries v. Anders

• Decision Date: 04 June 1985
• Citation: 299 Or. 205,701 P.2d 432
• Parties: In the Matter of the Compensation of Sharon J. Anders, Claimant. SOUTHWEST FOREST INDUSTRIES, Petitioner on Review, v. Sharon J. ANDERS, Respondent on Review. WCB 82-10,877; CA A33032; SC S31192.
• Court: Oregon Supreme Court

Page 432

701 P.2d 432

299 Or. 205

In the Matter of the Compensation of Sharon J. Anders, Claimant SOUTHWEST FOREST INDUSTRIES, Petitioner on Review, v. Sharon J. ANDERS, Respondent on Review.

WCB 82-10,877; CA A33032; SC S31192.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 29, 1985.

Decided June 4, 1985.

H. Scott Plouse, Cowling & Heysell, Medford, argued the cause for petitioner on review.

Charles H. Seagraves, Jr., Myrick, Coulter, Seagraves, Myrick & Adams, Grants Pass, argued the cause for respondent on review.

LENT, Justice.

Two primary issues are presented: (1) Whether ORS 19.028 ¹ is applicable to "filing with the clerk of the Court of Appeals the original notice of appeal" under ORS 656.298(3). (2)² Whether "serving, by registered or certified mail, a copy of the notice of appeal" on the Workers' Compensation Board (Board) under ORS 656.298(3) within 30 days of the order from which appeal ³ is taken is essential to acquisition of jurisdiction by the Court of Appeals. We hold that both issues are to be answered in the affirmative.

The Board mailed an order on July 23, 1984. The employer desired to appeal and on August 22, exactly 30 days later, mailed to the clerk of the Court of Appeals a petition for judicial review, ⁴ which was not received by the clerk until August 23, i.e., 31 days after the Board's order was mailed. The petition has endorsed on it the certificate of counsel for the employer that on August 22 he had served each of the parties and their counsel by true copies sent by certified mail. Absent from the certificate of service was any claim of service on the Board. ⁵ On its own motion the Court of Appeals dismissed the appeal for "lack of jurisdiction as untimely served on Workers' Compensation Board," citing Stevens v. SAIF, 27 Or.App. 87, 555 P.2d 480 (1976).

The employer petitioned for review, erroneously asserting that the Court of Appeals had dismissed the appeal "on the grounds that it lacked jurisdiction to review the matter under ORS 19.028 and 19.033(2)." The error in that assertion lies in the fact that the Court of Appeals stated that the authority for dismissal was Stevens v. SAIF, 27 Or.App. 87, 555 P.2d 480 (1976), and that decision and the case on which it relies, Zandbergen v. Johnson, 24 Or.App. 151, 544 P.2d 587 (1976), contain no mention of either ORS 19.028 and 19.033(2).

The petition for review also asserted that although the Court of Appeals' action might have been required by our decision in Modoc Lumber Co. v. EBI Companies, 295 Or. 598, 668 P.2d 1225 (1983), in which we relied in part on ORS 19.028 and 19.033, we had stated just weeks before in SAIF v. Maddox, 295 Or. 448, 667 P.2d 529 (1983), that ORS chapter 19 was not applicable to appeals from the Board to the Court of Appeals in workers' compensation cases. We allowed review, --- Or. ---, 691 P.2d 482 (1984), to resolve the contradiction in those two decisions of this court.

After we had allowed review, we questioned whether there was an independent ground for holding that the Court of Appeals was without jurisdiction, namely, the failure to have the petition for judicial review filed with the clerk of the Court of Appeals until the 31st day following mailing of the Board's order. It is our duty to raise a want of jurisdiction on our own motion. See, for example, Ragnone v. Portland School District No. 1J, 289 Or. 339, 613 P.2d 1052 (1980), and Johnson v. Assured Employment, 277 Or. 11, 558 P.2d 1228 (1977). Accordingly, we directed questions to the parties concerning the issue of want of jurisdiction on this ground.

Filing the Notice of Appeal

It is undisputed that the notice of appeal was not delivered physically to the clerk of the Court of Appeals within 30 days after the date of the mailing of the Board's order. The question is whether "filing" with the clerk may be accomplished at the time of mailing by reason of ORS 19.028. The text of that statute so provides. Legislative history indicates the same.

ORS 19.028 has its genesis in Senate Bill 812 in the 1979 legislative session. As originally introduced, the bill was concerned with appeals from circuit court to the Court of Appeals and would have amended ORS 19.026 by adding a subsection:

"(4) Filing of the notice of appeal with the clerk may be accomplished by mail addressed to the clerk. If the most expeditious form of delivery by mail, other than special delivery, is used, the notice of appeal shall be considered filed on the day of mailing, and enclosure with the mailed notice of the appropriate filing fee shall be considered timely deposit of that fee under ORS 19.035."

Witnesses in support of the bill before the Senate Committee on Judiciary described the problems faced by lawyers practicing in the more distant parts of the state. They pointed out that although notices of appeal might be mailed in time ordinarily to arrive timely at the clerk's office, mail delay could cause a notice of appeal to arrive untimely and result in dismissal for want of jurisdiction. Such lawyers either had to mail well in advance or go to the extra expense of having the notice physically delivered in Salem. They contended that they were thus penalized for practicing away from Salem.

Other witnesses pointed out that the problem arose not only in appealing court cases but in seeking judicial review of administrative agency decisions. In particular, a lawyer who practiced in the workers' compensation field recounted an unhappy experience of his law firm, which had mailed a notice of appeal from a Board order to the clerk of the Court of Appeals and a copy to the Board. The Board received the copy on Friday, the 30th day; however, although the notice of appeal was received by state mail employees on the same day, the notice was not physically delivered to the clerk of the court until the following Monday, resulting in dismissal of the appeal.

Following this testimony, the Senate Committee adopted amendments that removed the subject of the bill from ORS 19.026 and created a new section which became Oregon Laws 1979, chapter 297, section 1, now codified as ORS 19.028. We conclude from the text and from this history that ORS 19.028 is applicable to filing a notice of appeal under ORS 656.298(3). ⁶

In SAIF v. Maddox, supra, we considered a contention of SAIF that the Board lost jurisdiction of a case completely after notice of appeal had been filed in the Court of Appeals for judicial review of a certain Board order. SAIF particularly cited to us ORS 19.033(1) and 19.190(1), which are not concerned with the subject addressed by ORS 19.028. We held that a particular provision in the Workers' Compensation Law, ORS 656.313, rather than ORS 19.033(1) and 19.190(1), was dispositive. Unfortunately, in rejecting the application of the particular subsections of ORS chapter 19 cited to us by SAIF, we made too broad a statement when we said:

"Our examination of ORS chapter 19 satisfies us that it has no application to appeals from administrative tribunals. Throughout ORS chapter 19 reference is made to appeals from the trial courts, never to appeals from an administrative agency. The workers' compensation statutory scheme contains its own provisions governing appeals. ORS 656.298, for example, specifically instructs litigants how to process an appeal to the Court of Appeals and sets forth the scope of that court's review."

295 Or. at 452-453, 667 P.2d 529. We now disapprove that statement as it relates to ORS 19.028.

The tenor of our opinion in Modoc indicated that several sections of ORS chapter 19 were applicable to workers' compensation appeals. That was unfortunate in light of our then very recent decision in Maddox. While our statement in Maddox of the inapplicability of chapter 19 to workers' compensation appeals was too broad, the decision in Modoc ignored the judicial review provisions of the Workers' Compensation Law.

Rather than decide too much or too little in the case at bar, we here hold that the appellate scheme provided in ORS 656.295 and 656.298, as supplemented by ORS 19.028, governs in this case.

Compliance with ORS 19.028

We now turn to deciding whether the employer here satisfied the requirements of ORS 19.028. As we noted earlier, the employer acknowledged that under Modoc the Court of Appeals probably had properly dismissed. The employer challenges our decision in Modoc, however, and the rule of appellate procedure promulgated pursuant to that opinion. In Modoc the notice of appeal was mailed by certified mail to the clerk of the Court of Appeals on the 30th day and the mailing envelope "had affixed to it two post office forms used for certified mail and for securing a return receipt," but no date stamp was secured from the post office and the notice was not received by the clerk until the next day, just as in the case at bar. In contesting dismissal, the appellant presented a letter from the postmaster to the effect that the letter must have been mailed on the 30th day to reach the clerk on the 31st day. The respondent argued that the letter from the postmaster did not constitute "proof from the post office of such mailing date." The respondent argued that the required form of proof from the post office was not specified in the statute and this court must decide what the statute meant in that respect.

We noted the possible ambiguity inherent in the statutory requirement that the appellant "has" proof from the post office of the mailing date.

"We understand the phrase 'has proof' to refer to the time of mailing, but again it is not inconceivable that a party might read the statute to mean that the party must have the proof of mailing 'thereafter' when it certifies the proof and files it with the court."

295 Or. at 602, 668 P.2d 1225. We held that there was some uncertainty in the statutory text and that the text could and should be clarified by the Oregon Rules of Appellate Procedure. For disposition of the case...