Opinion
WCB No. 76-5459, CA 9690
Argued April 27, 1978. Affirmed June 20, 1978. Reconsideration denied July 26, 1978. Petition for Review Denied, 284 Or. 80 (1978).
Judicial Review from Workers' Compensation Board
Harold Henigson, Nyssa, argued the cause for petitioner. With him on the brief was Henigson, Stunz Fonda, Nyssa.
Steven Reinisch, Portland, argued the cause for respondent. On the brief were R. Kenney Roberts and Jones, Lang, Klein, Wolf Smith, Portland.
Before Schwab, Chief Judge, and Lee, Richardson and Joseph, Judges.
Affirmed.
JOSEPH, J.
Claimant appeals an order of the Workers' Compensation Board affirming an order of the referee, which dismissed claimant's request for a hearing on the ground that it was not timely filed. The determination order from which claimant sought review was mailed to claimant by the Board on October 8, 1975. In May, 1976, a hearing was held at claimant's request on the limited issues of temporary disability and medical treatment. On October 6, 1976, claimant mailed to the Board and the employer by certified mail a request for a hearing and review of the determination order. The request was not received by the Board until October 11, more than one year from the date the determination order had been mailed.
ORS 656.319(2) provides:
"With respect to objections to a determination under subsection (3) of ORS 656.268, a hearing on such objections shall not be granted unless a request for hearing is filed within one year after the copies of the determination were mailed to the parties."
Claimant argues that under ORS 656.283(2), the mailing of the request within the one-year period was sufficient. In Norton v. Compensation Department, 252 Or. 75, 448 P.2d 382 (1968), the court was faced with essentially the same issue. In that case claimant's request for a hearing was mailed within the period provided by ORS 656.319(1)(a), but was not received by the Board until after that period had expired. The request was held untimely.
"A request for hearing may be made by any writing, signed by or on behalf of the party and including his address, requesting the hearing, stating that a hearing is desired, and mailed to the board."
"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 * * *."
Claimant has shown no intervening and unavoidable cause for the delay in receipt of the request which might distinguish this case from Norton. The order of dismissal was proper.
Affirmed.