Clelland v. Cilione
Clelland v. Cilione
Opinion of the Court
In this workers’ compensation case, employer seeks judicial review of a Workers’ Compensation Board order that held the claim compensable. Employer argues that, because he never received a copy of the request for Board review of the administrative law judge’s (AU) opinion and order, the request for review was not timely filed, the AU’s opinion became final, and the Board lacked jurisdiction to review such a final order. We review for substantial evidence and for errors of law, ORS 183.482(8)(a), (c), and reverse and remand for reconsideration.
The material facts are undisputed. In 1997, claimant, a truck driver for employer, was diagnosed with a left leg deep vein thrombosis. Because employer was considered a noncomplying employer, the claim was forwarded to SAIF, which denied the claim.
At hearing, claimant, acting pro se, was present. Pomeroy, an attorney acting in the capacity of a special assistant attorney general,
In January 2000, the state, through the Department of Revenue, attempted to collect from employer the money paid out to claimant. That was the first time employer learned of claimant’s request for review of the ALJ’s order. Employer contacted DCBS, and for the first time in February 2000 received a copy of the Board’s order. In March 2000, employer sent a letter to the Board stating that SAIF’s denial was correct and that the Board erred when it reversed the ALJ’s decision. The Board acknowledged the letter and the fact that its order was sent to employer at the wrong address. The Board then issued an order republishing the order on review, addressing the compensability of claimant’s injury claim. The Board then republished its earlier order that determined the claimant’s injury claim was compensable. Employer seeks review of that order.
Under ORS 656.295(2),
Here, the Board did not address employer’s argument that claimant did not timely mail the request for Board review to employer and that employer did not receive actual notice of it. The Board also failed to make findings on the jurisdictional issue. Because “the Board must provide a ‘sufficient explanation to allow a reviewing court to examine the agency’s action!,]’ ” SAIF v. January, 166 Or App 620, 626, 998 P2d 1286 (2000), quoting Schoch v. Leupold & Stevens, 325 Or 112, 118, 934 P2d 410 (1997), we reverse and remand to the Board to explain why it rejected employer’s jurisdictional argument.
Reversed and remanded for reconsideration.
Pursuant to ORS 656.054, the Department of Consumer and Business Services (DCBS) later transferred the responsibility for processing the noncomplying employer case from SAIF to Johnston and Culberson, with the litigation being handled by the Department of Justice.
The ALJ’s order erroneously states that Pomeroy represented both employer and SAIF.
The Board subsequently republished the order on review because of a clerical error.
ORS 656.295(2) provides that “[t]he requests for review shall be mailed to the board and copies of the request shall be mailed to all parties to the proceeding before the [ALJ].” (Emphasis added.) ORS 656.005(21) defines “parly” as “a claimant for compensation, the employer of the insured worker at the time of injury and the insurer, if any, of such employer.” (Emphasis added.)
See Schneider v. Emanuel Hospital, 20 Or App 599, 603, 532 P2d 1146, rev den (1975) (“[slervice upon claimant’s attorney was constructive notice to claimant herself’); Nollen v. SAIF, 23 Or App 420, 423, 542 P2d 932 (1975), rev den (1976) (service on employer’s insurer sufficient to satisfy notice requirement). Neither Schneider nor Nollen is applicable here because employer was not represented by counsel and had no insurer.
Given our disposition, we need not address employer’s remaining assignments of error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.