Williams v. SAIF Corp.

Decision Date20 September 1990
Citation797 P.2d 1036,310 Or. 320
PartiesIn the Matter of the Compensation of Mary E. Williams, Claimant. Mary E. WILLIAMS, Respondent on Review, v. SAIF CORPORATION and Hill Investments, dba Sheridan Care Center, Petitioners on Review. WCB 87-00078; CA A50956; SC S36867.
CourtOregon Supreme Court

Jerome Lidz, Asst. Atty. Gen., Salem, argued the cause and filed the petition for petitioners on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Darris K. Rowell, Salem, argued the cause and filed a response to the petition for respondent on review.

Jerald P. Keene, of Roberts, Reinisch, MacKenzie, Healey & Wilson, P.C., Portland, filed an amicus curiae brief on behalf of Associated Oregon Industries, Ass'n of Workers' Compensation Defense Attys., and Oregon Self-Insurer's Ass'n.

Before PETERSON, C.J., and CARSON, JONES, * GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

GILLETTE, Justice.

This workers' compensation case involves review of an order of the Workers' Compensation Board (Board) that adopted a referee's order that dismissed with prejudice claimant's request for a hearing on the extent of her disability on the ground that claimant failed to appear at the hearing, although her attorney was present and prepared to present evidence. The Court of Appeals reversed and remanded. Williams v. SAIF, 99 Or.App. 367, 781 P.2d 1269 (1989). We affirm the decision of the Court of Appeals on different grounds.

On September 29, 1987, a hearing was scheduled in Salem, Oregon, before a referee of the Hearings Division of the Workers' Compensation Board. The primary issue for resolution at that hearing was the extent of claimant's disability. The claimant was sent a notice of hearing on June 12, 1987, to her address near Port Townsend, Washington. On the date scheduled for the hearing, claimant's attorney appeared before the referee but claimant was not present. Claimant's attorney advised the referee that he had received a telephone call from claimant the day before and that claimant told him that she was not able to attend the hearing because she lacked the funds to pay for the trip to Salem. Claimant's attorney moved for a postponement of the hearing, or, in the alternative, that claimant's request for a hearing be dismissed without prejudice. The referee denied both motions. Claimant's attorney then asked the referee to "proceed on the basis of the record" and to take claimant's testimony over the telephone. The referee denied these requests and dismissed with prejudice claimant's request for a hearing.

The next day, September 30, 1987, the referee entered an order which recited the above procedural history and then stated:

"IT IS HEREBY ORDERED that the request for hearing by the claimant in this matter shall be dismissed with prejudice based on OAR 438-06-085."

Claimant appealed to the Board, which affirmed and adopted the referee's order on all issues except one that is not relevant to this appeal. Claimant then sought review in the Court of Appeals.

The Court of Appeals reversed and remanded. Williams v. SAIF, supra. The court analyzed the problem this way:

"ORS 656.283(7) 1 ensures that all parties will have the opportunity to present their evidence. Although a claimant may choose to present evidence through her own testimony, her choice not to do so does not prevent the insurer from presenting its evidence in defense of her claim. OAR 438-06-071 2 contemplates that a request for a hearing may be dismissed with prejudice if neither a claimant nor a claimant's attorney appear for hearing. Nothing in the rule authorizes the referee to dismiss the request simply because the claimant does not appear. Under the Board's rules, claimant was entitled to offer the remainder of her evidence, even if she chose not to testify personally. The referee erred when it [sic] denied her that opportunity."

Id. at 370, 781 P.2d 1269 (footnote omitted). We granted review to determine whether the referee, and in turn the Board, erred by dismissing claimant's claim with prejudice when claimant, although not personally present, was represented by her attorney at the hearing and was prepared to present evidence. We now conclude that our inquiry cannot proceed so far.

The scope of judicial review in this and all workers' compensation cases is that described in ORS 656.298(6), which reads:

"The review by the Court of Appeals shall be on the entire record forwarded by the board. Review shall be as provided in ORS 183.482(7) and (8)." 3

This case presents a classic example of the kind of error contemplated by ORS 183.482(8)(a), viz., "the agency has erroneously interpreted a provision of law."

The provision of law relied upon by the referee and the Board in this case was, according to the referee's order, "OAR 438-06-085." The difficulty with this citation is that OAR 438-06-085, on which the referee (and, derivatively, the Board) relied, has nothing to do with the procedural situation that the referee faced. OAR 438-06-085 provided:

"DISMISSAL FOR DELAY. A request for hearing may be dismissed for want of prosecution where the party requesting the hearing occasions a delay of more than ninety (90) days without good cause. Prior to dismissal an order may be entered allowing a specific time within which the party requesting the hearing will have the opportunity to show cause why the case should not be dismissed. The filing of an application for a hearing date without explanation for the prior delay, does not constitute a showing of good cause."

There is no claim in the referee's order, nor any procedural or other facts there recited, that would justify the application of OAR 438-06-085 to this case. The referee and the Board apparently read the rule otherwise, but they erred. This never was, nor did it ever purport to be, a case of "dismissal for delay." In terms of ORS 183.482(8)(a), the referee and the Board have erroneously interpreted a provision of law--in this case, by interpreting the provision of law to apply to a situation, when a correct interpretation shows it does not apply. 4

As the case was decided in the Court of Appeals, however, its focus was not on the reason the referee gave, but rather on the referee's actual authority to dismiss under the rules. In the Court of Appeals, the employer relied on OAR 438-06-071, 5 which at least has the virtue of dealing with the subject of dismissal.

The problem here is that the Board and referee did not rely on this rule. Their only reliance was on an inapposite rule. It may be, as the Court of Appeals opined, that the applicable rule was OAR 436-06-071 and that, under that rule, dismissal was inappropriate. We express no opinion on either point because, as our analysis shows, both rulings were dicta. The Court of Appeals simply should have reversed and remanded to the Board the case the Board actually decided.

If follows from the foregoing that, although the Court of Appeals used the wrong analysis, the result it reached nonetheless was correct. The referee was not entitled to dismiss the proceeding before him on the basis he cited. The case must be reversed and remanded to the Board for further proceedings not inconsistent with this opinion.

Decision of the Court of Appeals affirmed; order of the Workers' Compensation Board reversed in part; remanded to the Workers' Compensation Board for further proceedings.

UNIS, Justice, specially concurring.

I agree with the majority's decision that this case must be reversed and remanded to the Workers' Compensation Board for further proceedings. I do not agree with the analysis used by the majority to reach that result.

We granted review in this workers' compensation case to decide whether the referee, and in turn the Board, erred by dismissing claimant's claim with prejudice when claimant, although not personally present, was represented by her attorney at the hearing and was prepared to present evidence. The majority is correct when it concludes that we cannot decide that issue. It is the analysis and reasoning used by the majority for reaching that conclusion with which I disagree. In my view, this court cannot decide that issue because the Board's order is inadequate for judicial review. I would, therefore, affirm the decision of the Court of Appeals to reverse and remand this case to the Workers' Compensation Board, but on a different ground than that stated by the Court of Appeals or the majority of this court.

The scope of judicial review in this and all workers' compensation cases is that described in ORS 656.298(6), which provides:

"The review by the Court of Appeals shall be on the entire record forwarded by the board. Review shall be as provided in ORS 183.482(7) and (8)." 6

ORS 183.482(7) and (8) do not, however, describe what a final order in a workers' compensation contested case must contain. I agree with Chief Judge Joseph of the Court of Appeals that ORS 183.470(2) "applies in substance to Board orders, because it states requirements which are necessary for effective judicial review" under ORS 183.482(7) and (8). Armstrong v. Asten-Hill Co., 90 Or.App. 200, 205, 752 P.2d 312 (1988) (Emphasis added). ORS 183.470(2) provides:

"A final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency's order."

There are practical reasons for the requirement expressed in ORS 183.470(2) that an administrative agency state its factual findings and articulate a rational connection between the facts it finds and the legal conclusions it draws from them. 7 Such articulation facilitates meaningful judicial review, Ross v. Springfield School Dist. No. 19, 294 Or. 357, 370, 657 P.2d 188 (...

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