Sekermestrovich v. State Accident Insurance Fund

HOWELL, J. This is a workers’ compensation claim on review in this court from the Court of Appeals, 28 Or App 901, 561 P2d 1043 (1977). The sole issue before us is whether or not Mrs. Sekermestrovich complied with ORS 656.319(l)(b), which requires a claimant who fails to file a request for a hearing within 60 days after denial of her claim to make a showing of good cause to be able to file thereafter. Ida May Sekermestrovich filed a claim with the State Accident Insurance Fund and was notified on June 25,1974, that her claim was denied. She immediately contacted an attorney to help her prosecute her claim. On December 11, 1974, Mrs. Sekermestrovich, dissatisfied with her attorney’s service, contacted a second attorney, whereupon she learned that her first attorney had not filed the necessary request for a hearing. Her new attorney filed the request for a hearing on December 13, 1974. The time for filing a request for a hearing is regulated by ORS 656.319, which provides, in part: "(1) 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 the request by the 60th day after notification of denial.” Mrs. Sekermestrovich did not file within the 60-day period in subsection (a), but did file within the 180-day period in subsection (b). The hearings officer found that Mrs. Sekermestrovich had shown good cause under ORS 656.319(l)(b) and found for her on the merits of her claim. The Workmen’s Compensation Board denied compensation after de novo review of the record on the ground that claimant had not shown [726] good cause under the statute. The Board did not reach the merits. The circuit court and the Court of Appeals each affirmed on the basis of a lack of good cause under the statute. The precise issue presented here is whether Mrs. Sekermestrovich’s reliance on her first attorney constitutes good cause within the meaning of the statute when the attorney failed to file the necessary request for a hearing. This court has never addressed the question of what is or what is not good cause for failure to file a request for a hearing under ORS 656.319(l)(b). The Court of Appeals has found good cause to include a claimant’s fear of losing his job if he filed, Riddel v. Sears, Roebuck & Co., 8 Or App 438, 494 P2d 901 (1972), and the failure of the agency to send the notice to the correct address, Burkholder v. SAIF, 11 Or App 334, 502 P2d 1394 (1972). Whether or not the ordinary negligence of a party’s attorney constitutes good cause has not been addressed before. SAIF, the respondent, argues that ORS 656.319(l)(b) is similar in purpose and structure to ORS 18.160, allowing a motion to set aside a judgment in a civil case, and that the two statutes should be similarly construed. ORS 18.160 provides: "The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” The respondent states, and claimant concedes, that we have repeatedly held that the negligence of an attorney is not excusable neglect under ORS 18.160 unless the attorney’s reason for failure to file would be excusable had it been attributed to the party. Brand v. Baker, 42 Or 426, 434, 71 P 320 (1903). See Carlson v. Bankers Discount Corp. et al, 107 Or 686, 215 P 986 (1923); Longyear, Admx. v. Edwards, 217 Or 314, 342 P2d 762 (1959). Respondent further argues that there [727] is no reason to establish a different rule for workers’ compensation cases. Claimant argues that there are valid reasons for distinguishing those civil cases and applying a different rule for compensation cases. Claimant points out that such a rule would undermine several of the basic policies of the workers’ compensation system. She argues that the system was created to provide for quick, inexpensive decisions before an administrative agency with expertise in the area, and that an adverse decision here would limit her remedy to a civil action against her first attorney and that such an action is neither quick nor inexpensive. It would also require a decision on the merits of her claim outside the mechanism of the Workers’ Compensation Board. Further, claimant argues that a major policy of the Act is to provide recovery for industrial disabilities without forcing the claimant to make a showing of someone else’s fault and that affirming the Court of Appeals would force her to make a showing of fault by her attorney, contrary to that policy. We do not feel that these arguments are of sufficient weight to justify one rule in civil cases and another in workers’ compensation cases. Thus, our position in the cases construing ORS 18.160 is dispositive of the controversy. We therefore conclude that the failure of one’s attorney to file the request for a hearing does not constitute good cause under ORS 656.319(l)(b) unless the attorney’s reason for failing to file would be good cause if attributed to the claimant.1 Affirmed. Footnotes [1] We note that in its opinion in this case the Court of Appeals stated: "The Board’s determination as to whether good cause has been shown is entitled to deference.” Both parties concede that such deference is inappropriate under ORS 656.298(6) which requires the Court of Appeals to review workers’ compensation cases "on the entire record forwarded by the board,” which we have interpreted to mean de novo review. Surratt v. Gunderson Bros., 259 Or 65, 485 P2d 4 (1971). While this deference was error, it does not require reversal and remand because the basis of the Court of Appeals’ decision was that, as a matter of law, Mrs. Sekermestrovich is bound by the negligence of her attorney.