Weyerhaeuser Co. v. Miller

PER CURIAM Claimant’s employer in this case and claimant in Dunn v. SAIF, also decided today, appealed the Workers’ Compensation Board’s dismissal of requests for review of referees’ orders, which each claimed had been timely mailed to the Board in compliance with ORS 656.295(2). That section provides: “The 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 referee.” The Board invoked its rule, OAR 438-05-040(4)(b), which stated that “filing” means “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.” The Board’s order in each case declared that the request for review was not received by the Board. In the present case, the order stated: “The employer in this case has not come forward with proof of mailing as required by OAR 438-05-040(4)(b). We, therefore, conclude that timely mailing of a request for review has not been established and that we are without jurisdiction to review the Referee’s order.” The order in Dunn stated a similar conclusion. The Court of Appeals reversed both orders. In an opinion in this case, the majority, over a dissent, held that the Board rule exceeded the scope of its rulemaking authority. Weyerhaeuser Company v. Miller, 88 Or App 286, 745 P2d 429 (1987). It is undisputed that the governing statutes require only timely mailing of a request for review. When the legislature wishes to prescribe a particular form of mailing, it says so. See, e.g., ORS 19.028, 87.018, 656.298(3), 656.440(2), 656.560(2), 656.583(1). The Board rule also does not require any particular form of mailing. The Board does not refuse to treat requests for review that it receives through the mails before the deadline as properly mailed. Its rule applies only in two situations that give rise to disputes over timely mailing: [4] when the Board does not receive a request (or other document) alleged to have been mailed, and when the request arrives in the mail after the 30-day deadline. In such a situation, the Board’s rule demands that the alleged timely mailing be demonstrated by “proof’ in the form of a post office receipt “showing the date mailed and the certified or registered number.” This requirement does not exceed the scope of the Board’s authority to regulate its own procedures. Agencies generally may make rules for the conduct of their own procedures even without explicit statutory authorization, see ORS 183.341 and 1 Cooper, State Administrative Law 176 (1965), and there is explicit authority here. The relevant sentence of ORS 656.726(4) provides: “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.” The disputed rule does not affect evidence concerning the merits of a claim. It does not deny or disavow the Board’s jurisdiction based on mailing of a request for review. It is designed only to avoid needless and wasteful controversies and evidentiary hearings over the alleged mailing dates of documents by prescribing means for proving mailing which any party can meet. The rule does not contravene statutory provisions. Employer in this case argues that the rule only defines “filing,” and ORS 656.295(2) does not refer to “filing” with regard to requests for review. The statutes and rules involved indeed are not models of consistent terminology, but we see no claim that the wording misled a party. ORS 656.313(1), a few sections after ORS 656.295(2), begins with the words “Filing by an employer or the insurer of a request for review * * *.” OAR 438-11-005 provides: “(1) The time and manner of filing for Board review is found in ORS 656.289 and 656.295. ■ “(2) The thirty days of ORS 656.289(3) is satisfied upon mailing the request to the Board.” (Emphasis supplied.) If the Board chooses to use the word [5] “filing” to describe how a party submits a request for review or other document to the Board, and then provides (in the regulation at issue here) that one who relies on the date of mailing as the date of filing must have specified proof in case of dispute, nothing in the statute seems to stand in the way. The decision of the Court of Appeals is reversed, and the order of the Workers’ Compensation Board is reinstated.