Weyerhaeuser Co. v. Miller
Weyerhaeuser Co. v. Miller
Opinion of the Court
Employer seeks review of an order of the Workers’ Compensation Board which dismissed its request for review for lack of jurisdiction. The referee’s order was mailed to the parties on September 27,1985. In February 1986, the attorney for employer asked the Board about the status of the request for review, which he claimed had been mailed on October 14, 1985. The Board dismissed the appeal, because the Board had not received the request and employer had not submitted the required proof of mailing. The Board said:
“We recently decided that when there is a question regarding whether a request for Board review was timely mailed to the Board, proof of such mailing must conform to the requirements of OAR 438-05-040(4)(b).”
ORS 656.295(2) requires that a request for review of a referee’s order “shall be mailed to the board * * *.” The Board adopted OAR 438-05-040(4)(b), which provides, in material part:
“ ‘Filing’ means:
<<* * * * *
“(b) date of mailing. If the date of mailing is relied upon as the date of filing, there must be proof from the post office of the mailing date. Acceptable proof from the post office shall be a receipt stamped by the post office showing the date mailed and the certified or registered number.”
Employer argues that, if OAR 438-05-040(4) (b) is applicable, the Board exceeded its authority in adopting the rule.
We recognize that the Board does have general rulemaking authority:
*289 “The board may make and declare all rules which are reasonably required in the performance of its duties, including but not limited to rules of practice and procedure in connection with hearing and review proceedings and exercising its authority under ORS 656.278. Such rules may provide for informal prehearing conferences in order to expedite claim adjudication, amicably dispose of controversies, if possible, narrow issues and simplify the method of proof at hearings. The rules shall specify who may appear with parties at prehearing conferences and hearings.” ORS 656.726(4).
That statute allows the Board to establish the methods, practices or procedures for introducing evidence, but does not include authority to limit the kind of proof on which a party may rely. OAR 430-05-040(4)(b) limits the kind of evidence which may be used to prove that a request for review was mailed. The rule requires “proof from the post office” of the date of mailing and provides that “acceptable proof * * * shall be a receipt stamped by the post office showing the date mailed and the certified or registered number.”
We agree with the dissent that the Board’s rule does provide a uniform and reliable method of proving when a request was mailed and that it may well contribute to the efficiency of the system. However, the statute allows a request for review to be perfected by “mailing.”
Reversed and remanded.
Employer also argues that OAR 438-05-040(4)(b) is not applicable, because the statute provides that a request for review is perfected by “mailing” and the rule relates only to “filing.” In view of our disposition of the case, it is unnecessary to address this issue.
In instances where the legislature has chosen to define proof of mailing, it has expressly done so. See, e.g., ORS 19.028; ORS 87.018.
Dissenting Opinion
dissenting.
I disagree that the Board, by use of the rule requiring proof of mailing, has limited its jurisdiction to less than that provided by statute and has thereby exceeded its authority to adopt rules for the administration of its duties. I dissent.
OAR 438-05-040(4) (b) provides that, if a party files a request for review by mail, the party must provide proof of
Reference
- Full Case Name
- In the Matter of the Compensation of Russell Miller, WEYERHAEUSER COMPANY v. MILLER
- Cited By
- 3 cases
- Status
- Published