Armstrong v. State Accident Insurance Fund , 58 Or. App. 602 ( 1982 )

649 P.2d 818 (1982) 58 Or.App. 602

In the matter of the Compensation of Ray C. Armstrong, Claimant.
Ray C. Armstrong, Petitioner,
v.
State Accident Insurance Fund Corporation, Respondent.

WCB No. 80-01476; CA A24685.

Court of Appeals of Oregon.

Decided August 18, 1982. Appeal Dismissed May 26, 1982. Petition for Reconsideration June 28, 1982.

Robert K. Udziela, and Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, for petition.

Before THORNTON, P.J., JOSEPH, C.J., and WARDEN, J.

On Petitioner's Petition for Reconsideration June 28, 1982.

PER CURIAM.

The Workers' Compensation Board's order on review states that it was mailed on December 31, 1981. Claimant's petition for judicial review recites that "Claimant's attorneys were not served with the Order on Review and Order Denying Remand until May 12, 1982." The notice of appeal was filed on May 17, 1982. We dismissed the petition on our own motion as not being timely under ORS 656.295(8):

"An order of the board is final unless within 30 days after the date of mailing of copies of such order to the parties, one of the parties appeals to the Court of Appeals for judicial review pursuant to ORS 656.928. * * *"

Accepting as true that claimant's counsel did not receive the order until some 132 days after it purportedly was mailed,^[1] still the statute is quite clear. The order became final on January 30, 1982, and judicial review was not sought within that period. ORS 656.298(1). Relying on Stroh v. SAIF, 261 Or. 117, 492 P.2d 472 (1972); Wisherd v. Paul Koch Volkswagen, 28 Or. App. 513, 559 P.2d 1305 (1977); and Stevens v. SAIF, 20 Or. App. 412, 531 P.2d 921 (1975), all of which deal with other provisions of ORS 656.295, claimant argues that ORS 656.295(8) is not jurisdictional. We hold that it is jurisdictional.

Relying principally on Lindsey v. Normet, 405 U.S. 46, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), claimant asserts that the dismissal of his petition for judicial review constitutes a violation of his Fourteenth Amendment due process rights. The thrust of the holding in Lindsey is that a state cannot impose conditions that effectively preclude indigents from perfecting appeals. Absent any showing here that the failure of the claimant and his counsel to receive notice of the Board's action during the 30-day period after the mailing of the order was caused by the Board, claimant's situation does not fall within the proscription of Lindsey. ORS 656.295(8) involves a notice procedure that is "reasonably calculated, under all the circumstances, to apprise interested parties" of their procedural situation, and that is all that is required. Mullane v. Central Hanover Tr. Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Again, absent any showing why the notice was not timely received, claimant has not demonstrated that his due process rights were violated. See Greene v. Lindsey, 456 U.S. ___, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982).

Reconsideration allowed; order adhered to.

NOTES

[1] According to an affidavit submitted with the petition for reconsideration, claimant never received a copy of the order.