Haskell Corp. v. Filippi
Haskell Corp. v. Filippi
Opinion of the Court
Employers Insurance of Wausau (Wausau) seeks judicial review of the Workers’ Compensation Board’s order on reconsideration, in which the Board modified and republished an order on review affirming the administrative law judge’s (ALJ) determination of Wausau’s responsibility under ORS 656.308(1) for claimant’s condition. Alternatively, Wausau seeks judicial review of the Board’s subsequent order denying Wausau’s request that the Board abate and republish its order on reconsideration. Respondent SATE Corporation has moved to dismiss the judicial review of the order on review and order on reconsideration and to summarily affirm the Board’s subsequent order denying abatement and republication. In response, Wausau has moved to remand the case to the Board. We grant the motions to dismiss and to summarily affirm and deny the motion to remand.
The underlying facts pertaining to claimant’s condition are not germane to our consideration of these motions. It suffices to say that Wausau and SAIF dispute responsibility for claimant’s back condition. The ALJ concluded that Wausau’s employer was responsible for that condition. Wausau sought review of the ALJ’s order, and, on October 11, 1996, the Board issued an order on review affirming the ALJ’s responsibility determination.
On November 7,1996, Wausau filed with this court a timely petition for judicial review of the Board’s order on review. On November 8, 1996, in response to claimant’s motion, the Board withdrew its order on review for reconsideration.
On December 6,1996, the Board issued an order on reconsideration. The Board modified its order on review to
On January 17, 1997, this court issued a notice of default to Wausau for failure to cause the record to be served and filed in connection with its November 7, 1996, petition for judicial review. At that point, according to Wausau’s attorney, he discovered that he had not received a copy of the Board’s December 6,1996, order on reconsideration. On January 23,1997, Wausau asked the Board to abate and republish its order on reconsideration because Wausau’s attorney had not been served with that order. Wausau did not contend that it had not been served, only that its attorney had not been served.
On January 28, 1997, the Board denied Wausau’s request. The Board noted that, for its order on reconsideration to become final, it was necessary only that the parties, and not their attorneys, be served. See, e.g., Berliner v. Weyerhaeuser Company, 92 Or App 264, 266 n 1, 758 P2d 384 (1988). Because Wausau admitted that it had received a copy of the order, the Board concluded that its December 6,1996, order on reconsideration had become final by operation of law and that it was without authority to abate and reconsider that order.
On January 30, 1997, Wausau responded to our notice of default and moved for leave to cause the record to be filed and served. Also on January 30,1997, Wausau filed an amended petition seeking judicial review of the Board’s December 6,1996, order on reconsideration or, alternatively, of the Board’s January 28,1997, order denying its request for abatement and republication. On February 3, 1997, we granted Wausau relief from default.
SAIF moves to dismiss Wausau’s petition for judicial review as to the October 11, 1996, order on review and the December 6,1996, order on reconsideration and to summarily affirm the Board’s January 28, 1997, order denying
Wausau makes three responses: (1) SAIF’s jurisdictional objection is “untimely.”
Wausau next argues that the Board’s December 6, 1996, order on reconsideration is a “nullity” or “invalid” because its attorney was not served with the order. Although the argument is somewhat amorphous, we understand Wausau to be contending that, if the December 6,1996, order was not served on its attorney, that order did not become “final” under ORS 656.295(8) — i.e., unreviewable — before Wausau filed its amended petition for judicial review and, thus, it is reviewable within the ambit of the amended petition for review.
We reject that argument. Pursuant to ORS 656.295(8), a petition for judicial review of any Board order must be made within 30 days after the order is mailed “to the parties.”
Two provisions are pertinent. ORS 183.482(6) provides, in part:
“If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, the petitioner may refile the petition for review and the review shall proceed upon the revised order. An amended petition for review shall not be required if the agency, on reconsideration, affirms the order or modifies the order with only minor changes.”
ORAP 4.35(4) provides, in part:
“(a) After the filing of an order on reconsideration, if the petitioner desires judicial review of the order on reconsideration, the petitioner shall file an amended petition for judicial review within a period equal to that allowed for filing an original petition. * * *
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“(c) If no petition is timely filed, the judicial review proceeding in the Court of Appeals will be dismissed.”
Thus, ORS 183.482(6) requires the filing of an amended petition for judicial review from an order on reconsideration
We have not decided whether ORS 183.482(6) applies to workers’ compensation proceedings. Compare United Foam Corp. v. Whiddon, 92 Or App 492, 758 P2d 435 (1988) with SAIF v. Fisher, 100 Or App 288, 785 P2d 1082 (1990). See also Fischer v. SAIF, 76 Or App 656, 711 P2d 162 (1985), rev den 300 Or 605 (1986).
Conversely, assuming, without deciding, that ORS 183.482(6) does not apply to review of workers’ compensation proceedings, the plain terms of ORAP 4.35(4)(c) compel dismissal of the original judicial review proceeding because Wausau failed to file an amended petition for judicial review within 30 days of December 6.
Because the December 6 order on reconsideration is final and thus unreviewable by this court and because, without a timely amended petition for judicial review, review proceedings as to the October 11 order on review cannot continue, we grant SAIF’s motion to dismiss.
We turn finally to the one remaining matter that is properly before us: Wausau’s January 30, 1997, amended petition for judicial review. For the reasons described above, the only matter that is reviewable under that petition is the Board’s January 28,1997, order denying Wausau’s motion to abate and republish the December 6 order on reconsideration. SAIF asks us to summarily affirm with respect to that petition. We agree that summary affirmance is appropriate. Wausau identifies no error in the Board’s order beyond matters that are necessarily derivative of Wausau’s arguments that we have addressed and rejected.
Motion to dismiss the judicial review granted. Motion to summarily affirm granted. Motion to remand denied.
Although Wausau’s petition for judicial review had already been filed when the Board withdrew its order on review, the Board retained plenary authority under ORS 656.295 to decide all matters committed to it by the legislature, limited only by ORS 656.295(8), which provides that orders become final 30 days after mailing. Thus, because the Board acted within 30 days of October 11,1996, it had authority to withdraw its order on review notwithstanding the intervening petition for judicial review. See SAIF v. Fisher, 100 Or App 288, 291-92, 785 P2d 1082 (1990).
The Board alternatively found that, in all events, Wausau’s attorney had, in fact, been served with a copy of the order on reconsideration.
In paraphrasing SAIF’s argument, we do not endorse its characterization that our jurisdiction is “extinguished” when an agency withdraws an order for reconsideration. See State ex rel Hall v. Riggs, 319 Or 282, 294, 877 P2d 56 (1994) (“[Wjhere an order has been withdrawn only for reconsideration, rather than being withdrawn completely, the reviewing court retains jurisdiction over the judicial review proceeding concerning that order.”); see generally ORAP 4.35.
Thirty days after December 6,1996, was January 5,1997, a Sunday. Because the thirtieth day fell on a Sunday, Wausau would have had until the following Monday, January 6,1997, in which to file an amended petition. See ORS 174.120; SAIF v. Edison, 117 Or App 455, 458, 844 P2d 261 (1992).
Wausau asserts that, because, after it filed its amended petition for judicial review, it filed a document entitled “response and motion” in which it argued that this court still had jurisdiction, and because SAIF did not respond to that document within 14 days, ORAP 7.05(3), SAIF should be precluded from now raising a jurisdictional objection.
OES 656.295(8) provides, in part:
“An order of the board is final unless within 30 days after the date of mailing of copies of such order to the parties, one of the parties appeals to the Court of Appeals for judicial review pursuant to OES 656.298.”
See also Adams v. Transamerica Insurance, 45 Or App 769, 776, 609 P2d 834 (1980) (Gillette, J., specially concurring) (“appeals” from Board “may only be taken by a ‘party’ ” as defined in ORS 656.005(22) and “cannot include plaintiff here,” who was claimant’s attorney).
Given our conclusion in that regard, we necessarily deny Wausau’s motion to remand.
The requirements of ORS 656.295 differ from those of other workers’ compensation statutes in which failure to serve a party’s attorney may be material. For example, under ORS 656.319(1), a claimant must request a hearing on a denied claim within 60 days after the denial is mailed but, upon a claimant’s showing of good cause, that limited period may be extended to 180 days. We have held that an insurer or self-insured employer’s failure to serve the denial on a claimant’s attorney may be such “good cause.” See, e.g., Freres Lumber Co. v. Jegglie, 106 Or App 27, 806 P2d 164 (1991); Cowart v. SAIF, 94 Or App 288, 765 P2d 226 (1988). See also ORS 656.331(l)(b) (setting forth situations in which insurers and self-insured employers may not contact claimants without also contacting their attorneys); OAR 436-060-0015 (same).
Because of that “slippage” between the statute and the rule, a party can comply with the former but nevertheless violate the latter. That is, in a case subject to ORS 183.482(6), where the agency made only “minor changes” on reconsideration, a petitioner who failed to file an amended petition would comply with the statute, but violate ORAP 4.35(4). That disparity may be a historical anomaly. At the time ORAP 4.35(4) was promulgated in 1990, the then-extant version of ORS 183.482 required the filing of an amended petition in every case. See Nida v. Bureau of Labor and Industries, 112 Or App 1, 3-4, 826 P2d 1045 (1992) (observing that ORAP 4.35(4) is consistent with a previous version of ORS 183.482(6)). Thereafter, the statute was amended to add the second sentence of the present text.
Before 1987, it was clear that ORS 183.482(6) applied to workers’ compensation proceedings. Fischer v. SAIF, 76 Or App at 569-60. However, in 1987, the legislature amended ORS 656.298(6) by adding the sentence, “[Judicial r]eview shall be as provided in ORS 183.482(7) and (8).” In United Foam, we relied on that language in holding that ORS 183.482(5) did not apply to workers’ compensation proceedings. United Foam, 92 Or App at 493. Although United Foam did not discuss the applicability of ORS 183.482(6), our broader point — that the legislature “intended only what it expressly said” when it included “specific reference to specific parts” of ORS 183.482 in ORS 656.298(6) — might seem to apply equally to ORS 183.482(6). In SAIF v. Fisher, without referring to United Foam, we expressly noted, but did not reach, the question of whether the legislature, in amending ORS 656.298(6), intended to render ORS 183.482(6) inapplicable to workers’ compensation proceedings. 100 Or App at 291 n 2.
Dissenting Opinion
dissenting.
I dissent from the majority’s decision to dismiss the petition for review of the Board’s order on reconsideration. In dismissing the petition, the majority asserts that it need not decide whether ORS 183.482(6) applies to workers’ compensation cases. 152 Or App at 125. It bases that assertion on its conclusion that the order on reconsideration changed the original order in a nonminor, material manner. Thus, even if ORS 183.482(6) were applicable to this case, petitioner had to submit an amended petition for judicial review within 30
The majority notes that we have questioned whether ORS 183.482(6) applies to workers’ compensation cases. 152 Or App at 125 nil and accompanying text. See, e.g., SAIF v. Fisher, 100 Or App 288, 291 n 2, 785 P2d 1082 (1990). We have held that subsection (5) of ORS 183.482 does not apply to workers’ compensation cases, but that was a narrow holding that was premised on the fact that that subsection includes a procedure that the legislature specifically removed from our review authority under ORS 656.298. United Foam Corp. v. Whiddon, 92 Or App 492, 493, 758 P2d 435 (1988). We have not held that the statute as a whole does not apply to workers’ compensation cases.
Respondents argue that the legislative history of ORS 656.298 indicates that the legislature intended to make ORS 183.482(6) inapplicable to workers’ compensation cases. Indeed, in Fisher, 100 Or App at 291 n 2, we recognized that there was some concern by the legislature about whether ORS 183.482 as a whole should apply to those cases. The concern, voiced by Senator Hill, was that ORS 183.482 was redundant of procedures already applicable to those cases or, where not redundant, was inappropriate. We further noted, however, that in the context of workers’ compensation cases, subsection (6) of ORS 183.482 was neither redundant nor inappropriate. Id. Moreover, there is nothing in the legislative history that supports a conclusion that the legislature intended to overrule our earlier decision in Fischer v. SAIF, 76 Or App 656, 659-60, 771 P2d 162 (1985), rev den 300 Or 605 (1986), in which we applied ORS 183.482(6) to a workers’ compensation case. Fisher, 100 Or App at 291 n 2.
The majority concludes that the award of attorney fees materially changed the original order by conferring additional substantive relief, 152 Or App at 125, and therefore required an amended petition. I disagree. I believe that the legislature amended ORS 183.482(6) to require a petitioner to file an amended petition only when the changes to the original order are significant enough to lead the petitioner to reevaluate the wisdom of going forward with the review process. Hence, minor changes are those that, from the petitioner’s perspective, do not affect the essential nature and reasoning of the decision. In this case, petitioner seeks review of the Board’s conclusion that petitioner is responsible for claimant’s compensation. The Board’s order on reconsideration did not change that conclusion or the facts and reasoning that supported it. Indeed, should petitioner prevail on review, the issue of attorney fees, insofar as it applies to
Finally, the majority concludes that ORAP 4.35(4)(a) also requires dismissal of this case. That rule requires a petitioner who has filed a petition for judicial review to file an amended petition when an agency withdraws the order on which review was sought and enters an order on reconsideration. It provides that the court will dismiss a petition if the required amended petition is not filed within the time limit that applied to the original petition. The rule apparently is based on ORS 183.482(6) as it read before the legislature amended it in 1989 to permit review to go forward without an amended petition when the order on reconsideration “affirms the [original] order or modifies the order with only minor changes.” We have the authority to waive our rules for good cause on our own motion. ORAP 1.20(4). Because ORAP 4.35(4) is inconsistent with ORS 183.482(6), and because of the circumstances under which petitioner faded to file an amended petition in this case, I would waive ORAP 4.35(4) and permit the review to go forward.
For the foregoing reasons, I respectfully dissent from the decision to dismiss the review of the order on reconsideration.
In fact, the legislative history of the 1989 amendment to ORS 183.482(6) indicates that it was adopted to respond to what one representative perceived as a
“SAIF has been caught by [this] trip in the rope. It’s happened to me in other cases, in our practice in our office. We file the amended petitions and it just seems like extra expense that really shouldn’t have to be gone through.”
Tape recording, House Subcommittee on Civil Law, May 8,1989, Tape 94, Side B.
Reference
- Full Case Name
- In the Matter of the Compensation of Julio Filippi, Claimant. HASKELL CORPORATION and Employers Insurance of Wausau, a Mutual Company, Petitioners, v. Julio FILIPPI, SAIF Corporation, Oregon Parks and Recreation, and Circle C. Farms, Inc., Respondents
- Cited By
- 4 cases
- Status
- Published