McCormac v. Cottage Crafts

831 P.2d 715, 113 Or. App. 173, 1992 Ore. App. LEXIS 1042

• Court: Court of Appeals of Oregon
• Decided: May 20, 1992
• Docket: 89-17548; CA A68588
• Status: Published

Opinions

BUTTLER, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board dismissing his appeal of the referee’s order for lack of jurisdiction. The appeal was correctly dismissed, and we affirm.

Claimant filed a claim for benefits for a heart attack. Employer denied the claim, and claimant requested a hearing. On the day set for the hearing, an hour before the scheduled time, claimant’s attorney appeared before the referee and sought a postponement on the ground that claimant was in the hospital for treatment of his heart condition and would not be able to appear at the hearing. Employer’s attorney objected to a postponement but offered to let claimant’s attorney proceed without claimant or to let claimant present his testimony in writing and waive cross-examination. Claimant’s attorney declined the offers.

The next day, the referee issued an order dismissing the claim with prejudice, because of claimant’s failure to appear. The order also provided:

“Claimant may submit, within thirty days of the date of entry of this order, an affidavit setting forth good cause for his failure to appear, including documentary medical evidence of his incapacity, and requesting that the dismissal be rescinded and the case rescheduled.”

It also stated:

“If you are dissatisfied with this order you may, within thirty (30) days after the mailing date * * * request a review by the Workers’ Compensation Board.”

Twenty-one days later, claimant filed a motion to set aside the order of dismissal, with attached documents. The motion did not come to the referee’s attention until the 34th day after issuance of the order. On the 43rd day after issuance of the order of dismissal, the referee issued a second order, holding that she did not have jurisdiction over the motion to set aside the order of dismissal, because that order had become final under ORS 656.289(3) 30 days after it was mailed to the parties. On the 47 th day after the mailing of the order of dismissal, claimant filed an appeal to the Board, which dismissed the appeal for lack of jurisdiction.

Claimant contends that the referee’s order of dismissal was issued contingent on the passage of 30 days or the filing of a motion to set aside the dismissal, whichever came first, or, in the alternative, that the appeal time did not begin to run until 30 days after the mailing of the order. ORS 656.289(3) provides that the referee’s order

“is final, unless, within 30 days after the date on which a copy of the order is mailed to the parties, one of the parties requests a review by the board under ORS 656.295.”

There havingbeenno appeal to the Board within 30 days after the mailing of the referee’s order of dismissal, the order became final. Although the order of dismissal invited claimant to submit, within 30 days, documents establishing “good cause” for his failure to appear, it was not and could not have been made contingent on the passage of 30 days. Additionally, the filing of claimant’s motion did not and could not have effected a stay of the order. The time for appeal began to run when the order of dismissal was mailed, and the referee could not extend it. Farmers Ins. Group v. SAIF, 301 Or 612, 724 P2d 799 (1986). Accordingly, the Board did not err in holding that the referee’s order of dismissal had not been abated, withdrawn, stayed, modified or republished before the expiration of the 30 days within which claimant could appeal. Therefore, the appeal was untimely, and the Board lacked jurisdiction to consider the merits of the motion to set aside the referee’s order of dismissal.

Affirmed.