Wright v. Bekins Moving and Storage Co.

775 P.2d 857, 97 Or. App. 45

• Court: Court of Appeals of Oregon
• Decided: June 14, 1989
• Docket: WCB 86-13710, 86-08766 & 86-13709; CA A46153
• Status: Published

Opinions

RICHARDSON, J.

The issue in this workers’ compensation case is whether claimant timely requested a hearing on employer’s denial of his claim. The time for seeking review was specified in former ORS 656.262(8) and former ORS 656.319(1).¹ In essence, the request for hearing must be filed within 60 days after the claimant was notified of the denial or within 180 days, if he shows good cause for not filing the request before the 60th day. Former ORS 656.262(8) provided that, if the employer or its agent denies the claim, a notice of the denial shall be mailed to the worker. “The worker may request a hearing on the denial at any time within 60 days after the mailing of the notice of denial.” (Emphasis supplied.) Former ORS 656.319(1) provided:

“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 a request by the 60th day after notification of denial.” (Emphasis supplied.)

We review for substantial evidence, Armstrong v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988), and the parties agree that there was substantial evidence to support the referee’s findings. Claimant filed a claim on May 15,1985, and notification that it was denied was mailed by employer to claimant on August 20, 1985. Claimant did not receive the letter and first learned of the denial on June 18,1986. He filed a request for hearing on June 24,1986. Claimant’s request was well beyond the 60-day and the 180-day limitation if the time limitation commences on the date of the mailing of the notice.

Claimant’s first argument that the request was timely is that the language of ORS 656.319(1) (a) means that the time begins to run from the date when he receives notice. He focuses on the language of ORS 656.319(1) (a) that the request for hearing must be filed not later than the 60th day “after claimant was notified of the denial.” The Supreme Court, in Norton v. Compensation Department, 252 Or 75, 448 P2d 382 (1968), construed notification to be when the notice of denial is mailed as specified in ORS 656.262(8). There is no question but that claimant did not request a hearing within 60 days after the date that employer mailed the notice of denial.

Claimant argues in the alternative that the fact that he did not receive the notice is an extenuating circumstance recognized by the court in Norton as a basis for relief from the time limitation. The court said in Norton:

“It is, of course, conceivable that the mailing of the notice of denial will not bring notice of the denial to the workman within 60 days after the denial or will not bring notice within a reasonably substantial time after the mailing, all through no fault of the workman. What relief can be granted to the workman in such event will have to depend upon the particular circumstances of each case.” 252 Or at 78.

In Burkholder v. SAIF, 11 Or App 334, 502 P2d 1394 (1972), we held, on the basis of that statement in Norton, that there were extenuating circumstances and that the claimant’s request, although filed more than 60 days after the notice was mailed, was nevertheless valid. The principal extenuating circumstance was the fact that the insurer had mailed the notice of denial to an address at which claimant had never lived or received mail, even though his correct address was known. Although mailing is a method reasonably calculated to give notice to a claimant, the notice must at least be correctly addressed. When it is not, as in Burkholder, the notice in effect has not been mailed.

In this case, the notice was correctly addressed and mailed but was not received by claimant. There is no indication that the fact that the notice was not received was due to any fault of claimant or employer. The extenuating circumstance, claimant argues, is that he did not receive the notice. However, if that were considered one of the circumstances contemplated by the dicta in Norton and expanded as a principle of law in Burkholder, then the statutory period would in effect begin to run from the date that a claimant received notice, which is directly contrary to the court’s interpretation of the statute in Norton.

The workers’ compensation system is purely a creature of statute and many of the provisions, such as filing deadlines and excuses for untimely filings, involve political accommodations of the competing interests of employers and claimants and the need for an orderly litigation system. Courts simply have no authority to add additional nuances to the legislative equation. The Supreme Court, in Norton, decided that the time limitation for contesting a denial begins when the denial is mailed. That is an interpretation of the statutory language. From that point, the statute provides clearly when the request for hearing must be filed to be on time — 60 days, or 180 days if good cause can be shown. There is no statutory basis for adding a third category that excuses a request made after 180 days from the date of mailing, if there are “extenuating circumstances.” Insofar as Burkholder suggests that a request filed after 180 days can ever be timely, it is disapproved.

Affirmed.

1 Both statutes were amended in 1987 but the amendments do not relate to the provisions involved in this appeal.