Zandbergen v. Johnson

544 P.2d 587 (1976)

In the matter of the Compensation of Martin ZANDBERGEN, Claimant.
Martin Zandbergen, Respondent,
v.
Jan David JOHNSON and Joanna Johnson, Dba Clackamas Steel Fabricating, Appellants.

Court of Appeals of Oregon.

Decided January 19, 1976. Argued and Submitted December 22, 1975.

Keith D. Evans, Salem, argued the cause and filed the brief for appellants.

James W. Lock, Gresham, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Employer appeals from a circuit court order which dismissed for lack of jurisdiction employer's appeal from a Workmen's Compensation Board order.

The Board's record shows that the Workmen's Compensation Board order in question was entered and copies mailed to all required parties and attorneys on April 10, 1975. The Workmen's Compensation Board "Certification of Record" to the circuit court is the next entered document in the Board's record. It recites "The Workmen's Compensation Board, not having been served until May 19, 1975, with Notice of Appeal, hereby forwards * * *." The circuit court record contains an original "Notice of Appeal" from the Workmen's Compensation Board to the circuit court, with an attached certificate by employer's attorneys which certifies mailing of copies thereof, among others, to the Workmen's Compensation Board on May 9, 1975.

The order dismissing the appeal, dated July 22, 1975, entered by the circuit court recites that after hearing the court found

"* * * as a fact that a copy of employer's Notice of Appeal was not served upon the Workmen's Compensation Board within the statutory 30-day period, which 30-day period expired May 10, 1975, and having further found as a fact that a copy of said Notice of Appeal was not mailed to the Board until May 15, 1975 nor received by the Board until May 19, 1975; and based upon said findings of fact, the Court ruled that it was without jurisdiction * * *."

The record before us does not contain the proof which formed the basis of the circuit court's finding as to when the actual mailing of notice to the Workmen's Compensation Board occurred. Employer apparently does not dispute the facts found by the circuit court, however.

Therefore, the only question is whether the requirement of mailing to the Workmen's Compensation Board a copy of the notice of appeal within 30 days of its order is in fact jurisdictional. ORS 656.295(8) and 656.298(3). In Ransom v. United States National Bank, 10 Or. App. 158, 499 P.2d 1374 (1972), we held it is. It has been noted in several opinions, including Ransom,^[1] that a liberal interpretation is placed upon the statutory requirements of notice in appeals in workmen's compensation cases. But where there is no notice to the Workmen's Compensation Board to commence the judicial review process in the prescribed time (see 10 Or. App. at 160, 499 P.2d 1374) there is no jurisdiction.

Affirmed.

NOTES

[1] Stroh v. SAIF, 261 Or. 117, 492 P.2d 472 (1972); Nollen v. SAIF, 75 Adv.Sh. 3982, Or. App., 542 P.2d 932 (1975); Schneider v. Emanuel Hospital, 75 Adv.Sh. 956, 20 Or. App. 599, 532 P.2d 1146, Sup.Ct. review denied (1975); Stevens v. SAIF, 20 Or. App. 412, 531 P.2d 921 (1975); Murphy v. SAIF, 13 Or. App. 105, 508 P.2d 227 (1973); and Burkholder v. SAIF, 11 Or. App. 334, 502 P.2d 1394 (1972).