Rhoades v. Sandy Rural Fire Protection District 72
Rhoades v. Sandy Rural Fire Protection District 72
Opinion of the Court
Claimant seeks review of a Workers’ Compensation Board order dismissing his request for a hearing. The Board held that claimant had not shown good cause for filing his request more than 60 days after SAIF denied his claim. We affirm.
Claimant is a volunteer firefighter for employer, Sandy Rural Fire Protection District 72. He was responding to employer’s call when he slipped and injured his knee.
The fire chief was away on vacation in May 1997. After returning from vacation, the fire chief retired on June 15, 1997. The fire chief did not appeal or otherwise resolve the denial before he retired. On June 20, 1997, the 60-day period in which to file a request for hearing expired. On July 3, 1997, SAIF sent a letter to employer, stating that the denial was final because it had not been appealed within 60 days. After discussing the issue at a board meeting, employer helped claimant prepare his request for a hearing. That request was filed on October 14,1997, more than 60 but less than 180 days after SAIF mailed the denial.
The Board dismissed claimant’s appeal because he had failed to establish good cause for his late filing. See ORS 656.319(l)(b). The Board found, as the administrative law judge (ALJ) had, that employer was not acting as the insurer’s agent. It compared this case instead to Mendoza v. SAIF, 123 Or App 349, 859 P2d 582 (1993), rev den 318 Or
“Assuming that the employer was acting as claimant’s agent for purposes of filing the hearing request, claimant’s testimony indicates that [the fire chief] was responsible for filing the hearing request. There is no evidence that [the fire chief] delegated that responsibility to anyone else. Based on [the executive secretary’s] testimony, the only explanation for [the fire chiefs] failure to file the request for hearing was that he was gone in May 1997. However, that explanation only pertains to part of the 60[-]day time period following SAIF’s denial. There is no explanation in the record as to why the request for hearing was not filed during the remaining [part of the 60-day period] after SAIF’s April 21,1997 denial.”
The Board accordingly found that the evidence did not support claimant’s argument (and the ALJ’s conclusion) that the turnover of employer’s personnel caused the failure to file a timely hearing request. Because claimant had not established good cause for his late filing, the Board dismissed his request for a hearing.
In Ogden Aviation v. Lay, 142 Or App 469, 921 P2d 1321 (1996), we clarified our standard of review in these sorts of cases:
“Our review here, thus, is to see whether the agency’s determination of ‘good cause’ is within ‘the range of discretion delegated to’ the Board by ORS 656.319(1). ORS 183.482(8)(b). The Supreme Court considered the contours of that policy in Sekermestrovich [v. SAIF, 280 Or 723, 573 P2d 275 (1977)]. It construed ‘good cause’ as meaning ‘mistake, inadvertence, surprise or excusable neglect,’ as found in former ORS 18.160, 280 Or at 726-27, and held that [the]*333 negligence of an attorney is not good cause unless the attorney’s reason for failing to file would be good cause if attributed to the claimant.”
Id. at 476 (footnotes omitted). Ogden reaffirmed that the legislature delegated the Board authority to determine, within statutory limits, when a claimant’s failure to file a timely request for hearing constitutes good cause. See id. at 476-77. Our inquiry is whether the Board’s decision that a claimant has or has not established good cause falls within the Board’s delegated range of authority. See id. at 476.
On review, claimant advances essentially three reasons why the Board erred. First, he argues that when a claimant relies on a nonlawyer to file his or her claim, the Board should test the nonlawyer’s actions under a more lenient standard than when a claimant relies on an attorney. The Board, however, declined to draw that distinction. Rather, the relevant question, according to the Board, is whether the person who failed to file the hearing request was charged with the responsibility for doing so, not whether that person was or was not an attorney. If the person was charged with the responsibility for filing the request, that person’s actions will be attributed to the claimant.
The Board’s order follows our decision in Mendoza.
Claimant advances a second argument. Relying on Voorheis v. Wood, Tatum, Mosser, 81 Or App 336, 725 P2d 405, rev den 302 Or 342 (1986), he argues that because he reasonably relied on employer’s representation that it would file his hearing request, he has established good cause. Voorheis did not hold, however, that whenever a claimant reasonably relies on another person to file his or her request for a hearing, the claimant’s reasonable reliance constitutes good cause. That would be inconsistent with the Supreme Court’s decision in Sekermestrovich, as well as our decision in Mendoza. Those cases establish that when an agent is charged with responsibility for filing a request for hearing, the agent’s actions may be attributed to the claimant without regard to the reasonableness of the claimant’s reliance on the agent. As the Board explained, good cause existed in Voorheis because the claimant in that case reasonably relied on the insurer’s representation, and the insurer was not the claimant’s agent. Here, the Board’s order is based on the premise that employer was acting as claimant’s agent.
Finally, claimant argues that the Board erred in finding that he had failed to establish that the fire chiefs negligent failure to file the request was not excusable. He argues that the ALJ correctly determined that the failure was due to turnover in the office and that the Board erred in not accepting that finding. There is substantial evidence, however, to support the Board’s conclusion that employer’s failure to file a timely request for hearing was not caused by turnover of employer’s personnel. Claimant does not argue, and we find
Affirmed.
As long as the volunteers intend to respond to the call, employer considers them employees and on the job from the time they receive a call until they return home.
Claimant bases his argument on Berwick v. AFSD, 74 Or App 460, 703 P2d 994, rev den 300 Or 332 (1985). Berwick, however, requires that hearings officers “ ‘must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.’ ” 74 Or App at 467 (quoting Rosa v. Weinberger, 381 F Supp 377, 381 (ED NY 1974)). It does not limit the Board’s authority to hold attorney and nonattorneys who undertake to file hearing requests to the same standard.
Both the ALJ and the Board recognized that an employer may be an insurer’s agent, which could make Voorheis applicable to this case. The ALJ, however, found that the employer in this case was not acting as SAIF’s agent. Claimant did not challenge that finding on appeal to the Board. The Board agreed with the ALJ’s finding that employer was not acting as SAIF’s agent in this case, and claimant has not challenged that finding in this court. Similarly, claimant has not challenged the Board’s premise that employer was his agent for the purpose of filing his hearing request. Rather, he has affirmatively argued before us that employer “was [claimant’s! agent for the purpose of filing an appeal.”
Employer’s secretary resigned in October 1996. A new secretary began working in December 1996. SAIF mailed the denial on April 21, 1997. The fire chief retired on June 15,1997. On June 20, 1997, the 60-day period to file a request for hearing ran. On June 30, 1997, more than 60 days after the denial was mailed, employer’s new board took office.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.