764
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted February 15, reversed and remanded
September 14, 2022
In the Matter of the Compensation of
Eric C. Kopf, Claimant.
Eric C. KOPF,
Petitioner,
v.
SAIF CORPORATION
and City of Sweet Home,
Respondents.
Workers’ Compensation Board
1805132; A174465
Theodore P. Heus argued the cause and filed the briefs
for petitioner.
Michelle L. Shaffer argued the cause and filed the brief
for respondents.
Before Shorr, Presiding Judge, and Lagesen, Chief Judge,
and Pagán, Judge.*
SHORR, P. J.
Reversed and remanded.
Pagán, J., dissenting.
______________
* Lagesen, C. J., vice Mooney, J.
Nonprecedential Memo Op: 321 Or App 764 (2022) 765
SHORR, P. J.
Claimant petitions for judicial review of an order
of the Workers’ Compensation Board (board). That order
affirmed an order of the administrative law judge (ALJ)
concluding that claimant had filed an untimely request for
a hearing to challenge SAIF Corporation’s denial of claimant’s injury claim. Claimant first contends that the board
exceeded the authority provided by statute in adopting certain rules related to the timing of requests for review. He also
argues that the board erred by refusing to consider a letter
from his attorney as evidence of his timely filing. We conclude
that claimant’s first argument was not preserved for review.
However, we agree with claimant’s second argument that
the board erred in concluding that claimant’s attorney’s letter, which had previously been admitted into evidence as an
exhibit without objection, could not be considered evidence.
We therefore reverse and remand the board’s order so that it
may apply the correct rule in reaching its decision.
The facts relevant to this review are largely procedural and undisputed. On May 14, 2018, claimant filed a
claim stating that he was injured while working for employer,
City of Sweet Home, when he was removing a manhole cover
with a coworker. On June 11, SAIF, employer’s workers’ compensation insurer, denied the claim.
Acting through his attorney, claimant requested a
hearing to challenge the denial. That request was made by
letter sent via regular mail.1 The letter was dated July 17,
2018, was addressed to the board, and was marked with a
“cc” (carbon copy) to SAIF. On July 20, 2018, SAIF received
a copy of the letter requesting a hearing. Neither party contends that the board actually received the July 17 letter in
the following days or weeks.
On October 4, claimant’s attorney wrote to the
board to follow up on claimant’s request for a hearing. The
letter stated:
“Enclosed please find a copy of our July 17, 2018, Request
for Hearing that shows SAIF’s date stamp of receipt of
1
As noted below, the relevant administrative rule distinguishes between
requests sent via registered or certified mail and those sent by regular mail.
766 Kopf v. SAIF
July 20, 2018, and our mailing date to SAIF of July 17,
2018. Simultaneously, we mailed the original request for
hearing to the board. To date, we have not received a Notice
of Hearing. Request is made that this matter be set for
hearing.”
The October 4 letter was signed by claimant’s attorney. The
board received the October 4 letter on October 8 and mailed
a notice of hearing to the parties.
The hearing occurred in June 2019. Employer
and SAIF moved to dismiss, contending that the request
for hearing was untimely. The ALJ agreed and dismissed
the case. Claimant appealed the ALJ’s order to the board.
Before the board, claimant argued, “[c]ounsel’s statement
in the October 4 letter to the board establishes simultaneous mailing of the June 17, 2018, Request for Hearing.” The
board rejected claimant’s argument, stating that “an attorney’s unsworn representations do not constitute evidence.”
The board affirmed the ALJ’s order, concluding that “claimant has not rebutted the presumption of untimely filing
under OAR 438-005-0046(1)(c), and that ‘good cause’ for the
untimely filing has not been established.”
In his first assignment of error, claimant asserts
that the board exceeded its statutory authority provided
in ORS chapter 656 by creating a rebuttable presumption
of untimely mailing in OAR 438-005-0046(1)(c). In his second assignment of error, claimant contends that the board
erred when it concluded that his attorney’s representation
in the October 4 letter did not constitute evidence that could
be considered in support of claimant’s contention that his
request for hearing was timely.
SAIF responds that claimant’s statutory authority argument in his first assignment of error was not preserved for review, and that, in any event, the board did not
exceed its statutory authority by creating a presumption
of untimely filing as described in the rule. In response to
the second assignment of error, SAIF contends that the
board considered the totality of the evidence, including the
unsworn representations contained in the October 4 letter,
in concluding that claimant had not persuasively rebutted
the presumption of untimely filing.
Nonprecedential Memo Op: 321 Or App 764 (2022) 767
The relevant administrative rule, OAR 438-005-
0046, provides, in part:
“(1) Filing:
“(a) Except as otherwise provided in these rules, ‘filing’ means the physical delivery of a thing to any permanently staffed office of the Board, or the date of mailing;
“…
“(c) If filing of a request for hearing … of … an
Administrative Law Judge’s order … is accomplished by
mailing, it shall be presumed that the request was mailed
on the date shown on a receipt for registered or certified
mail bearing the stamp of the United States Postal Service
showing the date of mailing. If the request is not mailed
by registered or certified mail and the request is actually
received by the Board after the date for filing, it shall be
presumed that the mailing was untimely unless the filing
party establishes that the mailing was timely[.]”
With those background facts and the issues in
mind, we turn to our analysis. As to the first assignment
of error, we agree with SAIF that the argument presented
in that assignment of error is not preserved. In general,
“to raise an issue before the Court of Appeals …, a party
must have preserved it by raising the issue in the original
proceeding.” State v. K. J. B., 362 Or 777, 790,
416 P3d 291
(2018) (citing ORAP 5.45(1)). That requirement serves the
broader purposes of the preservation rule: to provide the
lower tribunal with an opportunity “to consider a contention
and correct any error, to allow the opposing party an opportunity to respond to a contention, and to foster a full development of the record.” K. J. B.,
362 Or at 790 (citing State
v. Clemente-Perez,
357 Or 745, 752,
359 P3d 232 (2015)).
Indeed, the “touchstone of the preservation doctrine is procedural fairness to the parties and to the [initial tribunal].”
SAIF v. Williams,
304 Or App 233, 243-44,
466 P3d 1052
(2020) (internal quotations marks omitted).
In the underlying arguments before the ALJ and
later before the board, claimant focused on whether the
October 4 letter provided sufficient evidence to overcome
the untimely filing presumption created by OAR 438-005-
0046(1)(c), or alternatively, whether an alleged error in
768 Kopf v. SAIF
delivery by the postal service could constitute “good cause”
to extend the filing deadline to 180 days. In the argument
on review before the board, claimant seemingly accepted the
validity of OAR 438-005-0046(1)(c) and did not alert either
the board or SAIF to any claim that the rule was unlawful.
We conclude that, as to claimant’s statutory construction argument, the purposes of preservation were
not served in this case. Claimant’s arguments below never
alerted the tribunal or SAIF that claimant was contending that the board’s rule exceeded the statutory authority
provided to the board or was otherwise unlawful. Claimant
therefore presented no opportunity for the tribunal to consider that point, nor provided an opportunity for SAIF or
employer to meet such an argument. Claimant’s argument
is unpreserved, and we reject it without further discussion.
Turning to claimant’s second assignment of error,
that the board erred in concluding that the attorney’s statement in the October 4 letter did not constitute evidence in
support of claimant’s assertion that he timely requested a
hearing, we review the board’s order for legal error. ORS
183.482(8)(a); Hamilton v. SAIF, 275 Or App 978, 980,
365
P3d 1116 (2015).
Claimant contends that the evidentiary record
included the October 4 letter, which was admitted without
objection before the ALJ, and that once admitted, that letter “must be considered and weighed by the factfinder, even
if [it is] ultimately given little or no weight.” According to
claimant, the board erred in concluding that “an attorney’s
unsworn representations do not constitute evidence” and
then refusing to consider the probative value of the letter
against the presumption of untimely filing created by rule.
We agree with claimant that the board’s conclusion, at least in the context presented here, was legal error.
The board rejected the letter on the basis that “an attorney’s unsworn representations do not constitute evidence.”
The board’s conclusion ignored the fact that the October 4
letter containing the attorney’s statements had already
been admitted into the record without objection. See Fister
Nonprecedential Memo Op: 321 Or App 764 (2022) 769
v. South Hills Health Care,
149 Or App 214, 219,
942 P2d
833 (1997), rev den,
326 Or 389 (1998) (concluding that,
because the employer had not objected to the admission
of the claimant’s testimony at the hearing before the ALJ,
the board should not have entertained the argument first
made to the board that the evidence was inadmissible); see
also Camacho v. SAIF,
263 Or App 647, 656,
330 P3d 1242
(2014) (concluding that the board erred in disregarding the
claimant’s statements in a form simply because they were
in Spanish after the form had been admitted into evidence
without objection).2
Further, there is no support for the blanket conclusion that an attorney’s statements in a letter must be sworn
to be considered as evidence. There is no requirement, of
which we are aware, that a letter must contain sworn statements to be admissible before the board.3 Indeed, the board
“may receive hearsay evidence and evaluate its weight in
the light of the circumstances of the case.” Zurita v. Canby
Nursery, 115 Or App 330, 334,
838 P2d 625 (1992), rev den,
315 Or 443 (1993).
In reaching its conclusion, the board relied on
SAIF v. Cruz, 120 Or App 65,
852 P2d 247 (1993). That
case, however, did not hold that a letter containing an
attorney’s unsworn statement may never be admitted as
evidence. Instead, there we concluded that a statement by
SAIF’s attorney provided only a legal rationale for SAIF’s
withholding of certain evidence until after it had crossexamined the claimant, and that the board had failed to
evaluate whether SAIF had reasonably believed that the
evidence was relevant only for impeachment purposes.
Id. at
69. We did not conclude that a party’s attorney’s unsworn
2
We note that SAIF’s briefing before the board did not contend that the letter could not be considered evidence as a matter of law, but, rather, SAIF argued
that the letter was not a certificate of service and did not itself otherwise provide
sufficient information to determine the mailing date of the request for hearing.
3
Of course, an attorney’s arguments to a factfinder are not evidence. State v.
Green, 140 Or App 308, 317 n 11,
915 P2d 460 (1996). Further, there may be other
bases for rejecting the admission of an attorney’s letter or the statements therein
as evidence. We do not attempt to state a general rule for when an attorney’s
statements may be admitted. That an attorney’s letter’s statements are unsworn,
however, is not a legitimate basis for refusing to admit the content of a letter as
evidence.
770 Kopf v. SAIF
statements—particularly ones made, as here, in an admitted exhibit—may not be evidence.
SAIF also contends that the board did, in fact, consider the October 4 letter as evidence. We disagree. Although
the board’s order is not entirely clear, the board went on to
consider whether the attorney’s letter was a certificate of
service or perhaps the equivalent of a certificate of service.
The board, however, concluded that the October 4 letter
could not function as a certificate of service. There is no
indication that the board then nevertheless considered the
October 4 letter as evidence in evaluating whether claimant
had met his burden to show that the hearing request was
timely. Indeed, such consideration would have been contrary
to the board’s clear conclusion that it could not consider the
attorney’s representations in that letter as evidence.
We agree with claimant that the board erred when
it failed to consider the admitted October 4 letter as evidence in support of claimant’s argument that the hearing
request was timely. If it had done so, the board could then
have decided the persuasiveness of that evidence in light of
the record as a whole. It can now do so on remand. See Fister,
149 Or App at 219 (remanding to the board so that it could
consider improperly excluded evidence).
Reversed and remanded.
PAGÁN, J., dissenting.
While it is never appropriate for a factfinder to
dismiss any exhibit that has been admitted into evidence
as “not evidence,” I disagree with my colleagues that the
statement by the board in this case about the attorney’s
letter warrants revisiting the matter on remand. First, it
is debatable that the letter, which was created well after
the filing in question and was thus not corroborative of any
fact, should have been considered “evidence” beyond the fact
that it was not objected to when it was proffered into evidence. While the board’s statement was curt, it accurately
reflected the weight the letter commanded. In any event, my
reading of the board’s opinion convinces me the board did
deem the letter as evidence worth considering, weighing its
value in light of relevant case law, and properly deemed it
Nonprecedential Memo Op: 321 Or App 764 (2022) 771
insufficient. Had the board simply added one word to their
opinion—“sufficient”—I am confident this remand would
not occur. I respectfully dissent.
