Williams v. Saif Corp. , 310 Or. 320 ( 1990 )

GILLETTE, J.

This workers’ compensation case involves review of an order of the Workers’ Compensation Board (Board) that adopted a referee’s order that dismissed with prejudice claimant’s request for a hearing on the extent of her disability on the ground that claimant failed to appear at the hearing, although her attorney was present and prepared to present evidence. The Court of Appeals reversed and remanded. Williams v. SAIF, 99 Or App 367, 781 P2d 1269 (1989). We affirm the decision of the Court of Appeals on different grounds.

On September 29, 1987, a hearing was scheduled in Salem, Oregon, before a referee of the Hearings Division of the Workers’ Compensation Board. The primary issue for resolution at that hearing was the extent of claimant’s disability. The claimant was sent a notice of hearing on June 12,1987, to her address near Port Townsend, Washington. On the date scheduled for the hearing, claimant’s attorney appeared before the referee but claimant was not present. Claimant’s attorney advised the referee that he had received a telephone call from claimant the day before and that claimant told him that she was not able to attend the hearing because she lacked the funds to pay for the trip to Salem. Claimant’s attorney moved for a postponement of the hearing, or, in the alternative, that claimant’s request for a hearing be dismissed without prejudice. The referee denied both motions. Claimant’s attorney then asked the referee to “proceed on the basis of the record” and to take claimant’s testimony over the telephone. The referee denied these requests and dismissed with prejudice claimant’s request for a hearing.

The next day, September 30, 1987, the referee entered an order which recited the above procedural history and then stated:

“IT IS HEREBY ORDERED that the request for hearing by the claimant in this matter shall be dismissed with prejudice based on OAR 438-06-085.”

Claimant appealed to the Board, which affirmed and adopted the referee’s order on all issues except one that is not relevant to this appeal. Claimant then sought review in the Court of Appeals.

The Court of Appeals reversed and remanded. Williams v. SAIF, supra. The court analyzed the problem this way:

“ORS 656.283(7)[¹] ensures that all parties will have the opportunity to present their evidence. Although a claimant may choose to present evidence through her own testimony, her choice not to do so does not prevent the insurer from presenting its evidence in defense of her claim. OAR 438-06-071[²] contemplates that a request for a hearing may be dismissed with prejudice if neither a claimant nor a claimant’s attorney appear for hearing. Nothing in the rule authorizes the referee to dismiss the request simply because the claimant does not appear. Under the Board’s rules, claimant was entitled to offer the remainder of her evidence, even if she chose not to testify personally. The referee erred when it [sic] denied her that opportunity.”

Id. at 370 (footnote omitted). We granted review to determine whether the referee, and in turn the Board, erred by dismissing claimant’s claim with prejudice when claimant, although not personally present, was represented by her attorney at the hearing and was prepared to present evidence. We now conclude that our inquiry cannot proceed so far.

The scope of judicial review in this and all workers’ compensation cases is that described in ORS 656.298(6), which reads:

“The review by the Court of Appeals shall be on the entire record forwarded by the board. Review shall be as provided in ORS 183.482(7) and (8).”³

This case presents a classic example of the kind of error contemplated by ORS 183.482(8)(a), viz., “the agency has erroneously interpreted a provision of law.”

The provision of law relied upon by the referee and the Board in this case was, according to the referee’s order, “OAR 438-06-085.” The difficulty with this citation is that OAR 438-06-085, on which the referee (and, derivatively, the Board) relied, has nothing to do with the procedural situation that the referee faced. OAR 438-06-085 provided:

“DISMISSAL FOR DELA Y. A request for hearing may be dismissed for want of prosecution where the party requesting the hearing occasions a delay of more than ninety (90) days without good cause. Prior to dismissal an order may be entered allowing a specific time within which the party requesting the hearing will have the opportunity to show cause why the case should not be dismissed. The filing of an application for a hearing date without explanation for the prior delay, does not constitute a showing of good cause.”

There is no claim in the referee’s order, nor any procedural or other facts there recited, that would justify the application of OAR 438-06-085 to this case. The referee and the Board apparently read the rule otherwise, but they erred. This never was, nor did it ever purport to be, a case of “dismissal for delay.” In terms of ORS 183.482(8) (a), the referee and the Board have erroneously interpreted a provision of law — in this case, by interpreting the provision of law to apply to a situation, when a correct interpretation shows it does not apply.⁴

As the case was decided in the Court of Appeals, however, its focus was not on the reason the referee gave, but rather on the referee’s actual authority to dismiss under the rules. In the Court of Appeals, the employer relied on OAR 438-06-071,⁵ which at least has the virtue of dealing with the subject of dismissal.

The problem here is that the Board and referee did not rely on this rule. Their only reliance was on an inapposite rule. It may be, as the Court of Appeals opined, that the applicable rule was OAR 436-06-071 and that, under that rule, dismissal was inappropriate. We express no opinion on either point because, as our analysis shows, both rulings were dicta. The Court of Appeals simply should have reversed and remanded to the Board the case the Board actually decided.

It follows from the foregoing that, although the Court of Appeals used the wrong analysis, the result it reached nonetheless was correct. The referee was not entitled to dismiss the proceeding before him on the basis he cited. The case must be reversed and remanded to the Board for further proceedings not inconsistent with this opinion.

Decision of the Court of Appeals affirmed; order of the Workers’ Compensation Board reversed in part; remanded to the Workers’ Compensation Board for further proceedings.

1 At the time of the hearing and subsequent Board review in this case, ORS 656.283(7) provided:

“Except as otherwise provided in this section and rules of procedure established by the board, the referee is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, and may conduct the hearing in any manner that will achieve substantial justice. The referee shall apply to the hearing of the claim such standards for evaluation of disability as may be adopted by the director pursuant to ORS 656.726. Nothing in this section shall be construed to prevent or limit the right of a worker, insurer or self-insured employer to present evidence at hearing and to establish by clear and convincing evidence that the degree of permanent disability suffered by the claimant is more or less than the entitlement indicated by the standards adopted by the director under ORS 656.726.”

ORS 656.283(7) was amended extensively by Oregon Laws 1990 (Special Session), chapter 2, section 20, in respects not pertinent to our decision in this case.

2 The Court of Appeals incorrectly stated:

“At the time of the hearing, OAR 438-06-071 provided:

“(1) A request for hearing may be dismissed if a referee finds that the party that requested the hearing has abandoned the request for hearing or has engaged in conduct that has resulted in an unjustified delay in the hearing of more than 60 days.

“(2) Unjustified failure of a party or the party’s representative to attend a scheduled hearing is a waiver of appearance. If the party that waives appearance is the party that requested the hearing, the referee shall dismiss the request for hearing as having been abandoned unless extraordinary circumstances justify postponement or continuance of the hearing.”

Williams v. SAIF, 99 Or App 367, 369, 781 P2d 1269 (1989) (footnote omitted).

In fact, a different version of OAR 438-06-071, adopted by the Board on August 26, 1987, as a temporary rule, and effective September 15,1987, was in effect at the time of claimant’s hearing on September 29,1987. It provided:

“Failure of a party or the party’s representative to appear at the time and place scheduled for a hearing is a waiver of appearance. If the party that fails to appear is the party that requested the hearing, the Referee shall issue an order dismissing the request for hearing for failure to appear unless a postponement is granted under 438-06-081.”

OAR 438-06-081, which was in effect at the time of claimant’s hearing, read:

“(1) A scheduled hearing shall not be postponed except by order of a Referee after a showing of extraordinary circumstances beyond the control of a party. ‘Extraordinary circumstances’ means an event or occurrence that physically prevents a party or attorney of record for a party from appearing at the time and place scheduled for the hearing or that the Referee concludes would result in extreme hardship or manifest injustice if the party or attorney were compelled to appear and to proceed with the hearing. Circumstances that shall not be considered ‘extraordinary circumstances’ include, but are not limited to:

“(a) An attorney’s conflict with administrative or judicial proceedings that were scheduled after the mailing date of the Notice of Hearing;

“(b) Press of business;

“(c) Unavailability of a witness not subpoenaed or not subject to subpoena; and

“(d) Incomplete case preparation.

“(2) As used in this section, ‘Referee’ means the Referee assigned to the hearing or if the Board directs, the Presiding Referee or a Referee or Referees designated by the Presiding Referee to hear requests for postponement.”

3 ORS 183.482(7) and (8) provide:

“(7) Review of a contested case shall be confined to the record, the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion. * * * The court shall remand the order for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.

“(8) (a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:

“(A) Set aside or modify the order; or

“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.

“(b) The court shall remand the order to the agency if it finds the agency’s exercise of discretion to be:

“(A) Outside the range of discretion delegated to the agency by law;

“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or

“(C) Otherwise in violation of a constitutional or statutory provision.

“(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

4 This ruling will come as no surprise to the parties. It was clear from their oral arguments in this Court that both sides recognized that OAR 436-06-085 did not apply in this case. Neither party even mentioned the rule in its brief to the Court of Appeals.

5 See supra note 2.