In Oregon, Hearing Requests from Former Opposing Counsel May Haunt You!
Generally, if a claimant does not timely file a hearing request, they will lose their right to compensation unless they can show good cause. The Supreme Court of Oregon has long held that an attorney’s failure to file a hearing request does not constitute good cause. Sekermestrovich v. SAIF, 280 Or 723, 727 (1977). However, in In re Andrew Burke, 77 Van Natta 494 (2025), the Board found a rare moment to distinguish the holding from Sekermestrovich and apply an exception in an unusual manner.
In Burke, the claimant and his then attorney agreed the attorney would file a hearing request on the claimant’s behalf. However, before this would occur their attorney-client relationship ended on October 15, 2020. As a result, the now former attorney did not represent the claimant when the deadline to timely request a hearing passed on October 27, 2020. After the appeal deadline had passed, the former attorney filed the request for hearing on behalf of the claimant. The request included the claimant’s name, address, date of injury, claim number, but did not indicate that the former attorney was requesting hearing on behalf of the claimant as his attorney. The record reflected that neither the claimant nor the former attorney expressed a desire to withdraw the hearing request. As such, the Board found the request for hearing was valid.
The Board then looked to whether the claimant had established good cause for his failure to timely file a request for hearing and found in the affirmative based on three reasons. First, the Board held a good cause determination must be liberally construed and viewed in the light most favorable to the party seeking relief to provide all parties their day in court. Second, the Board explained ORS 656.283 permits a hearing request to be made by any writing, signed by or on behalf of a worker. The Board clarified ORS 656.283 did not create a specific requirement that a request for hearing could only be made by a worker’s attorney. Lastly, the Sekermestrovich court created an exception to its rule explaining an attorney’s failure to file was not excusable unless the attorney’s reason for failing could be attributable to the worker. The Board explained this was based on the concept that attorneys may only act within the authority provided by their clients. According to the Board, the former attorney was not acting in his role as the claimant’s attorney when he untimely filed the hearing request. He was merely following through upon his agreement with the claimant despite the fact he had withdrawn his representation. Thus, in Burke, the former attorney’s negligence in untimely filing a request for hearing was not imputable to the claimant. As a result, the claimant had good cause for the untimely filing.
While the situation which occurred in In re Andrew Burke, 77 Van Natta 494 (2025), is rare, it is a reminder that the specific facts surrounding an untimely request for hearing will determine whether good cause exists.
If you have any questions involving hearing requests, whether they are considered timely, or whether someone has good cause for an untimely filing, please contact Tejinder at 971-867-2726 or to discuss this recent Board decision.
Posted by Tejinder Bhullar.
