dissenting.
Because I cannot agree with the majority’s conclusion that the time for appeal began to run when the order was mailed, I dissent.
ORS 656.289(1) provides:
“Upon the conclusion of any hearing, or prior thereto with concurrence of the parties, the referee shall promptly and not later than 30 days after the hearing determine the matter and make an order in accordance with the referee’s determination.” (Emphasis supplied.)
Although the referee mailed a form of an order dismissing the claim on December 20,1989 — the day after the hearing — the *177issuance of the order was expressly contingent on either the passage of 30 days or the filing of a motion to set aside the dismissal, whichever came first. If claimant had failed to file the motion, the order of dismissal would have issued 30 days after the hearing, and claimant would have had 30 days from that date to appeal to the Board. Because claimant filed the required motion on January 10, 1990 — 21 days after the hearing — I would hold that the order issued on that day. Claimant requested Board review on February 5, 1990, within 30 days after the issuance of the order.
The majority would require claimant to file an affidavit explaining his reasons for not appearing at the hearing and, at the same time, file an appeal to the Board. That would lead to an unnecessary bifurcation of jurisdiction between the referee and the Board. Given the referee’s specific directive to claimant to file an affidavit, and given claimant’s timely compliance with that directive, it was reasonable for him to expect that the referee would not issue a final order until after the affidavit was considered. I would hold that the Board had jurisdiction to consider the appeal and to determine the merits of claimant’s motion.
That is the only fair result in this case. The foremost objective of the workers’ compensation system is to help workers who have been injured on the job. This claimant should not be prevented from seeking that relief simply because he did what the system told him to do. He timely responded to the referee’s specific procedural directive by filing a motion to set aside the order of dismissal. To me, it would be unfair now to penalize claimant for the referee’s failure timely to consider his motion.