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Burkholder v. State Accident Insurance Fund

November 17, 1972

BURKHOLDER, RESPONDENT,
v.
STATE ACCIDENT INSURANCE FUND, APPELLANT



Appeal from Circuit Court, Multnomah County. Berkeley J. Lent, Judge. No. 375-901.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Vincent C. Ierulli, Portland, argued the cause for respondent. With him on the brief were Franklin, Bennett, DesBrisay & Jolles, Portland.

Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.

Foley

The State Accident Insurance Fund appeals from an order of the circuit court directing that a hearing be allowed claimant on his claim for a compensable injury. The principal question to be decided is whether

the claimant filed a timely request for a hearing by the Workmen's Compensation Board after the Fund denied his claim for benefits under the Workmen's Compensation Act. A second issue involves whether the trial court properly awarded attorney fees to claimant's attorney.

The Fund mailed a notice on December 8, 1969, stating that claimant's claim was denied. Pursuant to ORS 656.262 (6), that notice of denial stated the reasons for the denial and set out the procedure by which claimant might request a hearing by the Workmen's Compensation Board. The problem in this matter arises from the fact that the notice of denial was mailed to claimant at an address at which claimant had never lived nor received mail.*fn1 No explanation was given at the hearing for this mistake, nor was it established what ultimately became of the errant notice.

Claimant testified that he first learned that his claim had been denied when he telephoned a Mrs. Wilma Davidson at SAIF to inquire as to the status of his claim. This conversation took place "[a] couple of days" prior to January 14, 1970. Claimant testified that he could not remember whether Mrs. Davidson informed him of the procedure to follow to request a hearing on his claim, but he believed that she told him to file the request with SAIF.

On January 14, 1970 claimant submitted a request

for a hearing by the Workmen's Compensation Board to the State Accident Insurance Fund. This request was received by SAIF on January 16. In a letter dated January 26, 1970 Mrs. Davidson of SAIF informed claimant through his attorneys that his hearing request must be filed directly with the Workmen's Compensation Board rather than with SAIF. Although this latter letter was dated January 26, claimant's attorney testified that it was not received by him until March 8 or March 10.

On January 25, 1970, and again on February 8, 1970, claimant's attorney wrote to Mrs. Davidson at SAIF requesting a report as to the status of claimant's request for a hearing. On February 13, 1970, Mr. W. F. Hall of SAIF wrote to claimant's attorney. That letter suggested that "you refer your request for a hearing directly to the Workmen's Compensation Board * * *," and enclosed a copy of the denial of claimant's claim for counsel's records.

On February 21, 1970 claimant's attorney wrote the following letter to the ...


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