Williams v. Saif Corp.

UNIS, J.,

specially concurring.

I agree with the majority’s decision that this case must be reversed and remanded to the Workers’ Compensation Board for further proceedings. I do not agree with the analysis used by the majority to reach that result.

We granted review in this workers’ compensation case to decide whether the referee, and in turn the Board, erred by dismissing claimant’s claim with prejudice when claimant, although not personally present, was represented by her attorney at the hearing and was prepared to present evidence. The majority is correct when it concludes that we cannot decide that issue. It is the analysis and reasoning used by the majority for reaching that conclusion with which I disagree. In my view, this court cannot decide that issue because *328the Board’s order is inadequate for judicial review. I would, therefore, affirm the decision of the Court of Appeals to reverse and remand this case to the Workers’ Compensation Board, but on a different ground than that stated by the Court of Appeals or the majority of this court.

The scope of judicial review in this and all workers’ compensation cases is that described in ORS 656.298(6), which provides:

“The review by the Court of Appeals shall be on the entire record forwarded by the board. Review shall be as provided in ORS 183.482(7) and (8).”1

ORS 183.482(7) and (8) do not, however, describe what a final order in a workers’ compensation contested case must contain. I agree with Chief Judge Joseph of the Court of Appeals that ORS 183.470(2) “applies in substance to Board orders, because it states requirements which are necessary for effective judicial review” under ORS 183.482(7) and (8). Armstrong v. Asten-Hill Co., 90 Or App 200, 205, 752 P2d 312 (1988) (Emphasis added). ORS 183.470(2) provides:

*329“A final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency’s order.”

There are practical reasons for the requirement expressed in ORS 183.470(2) that an administrative agency state its factual findings and articulate a rational connection between the facts it finds and the legal conclusions it draws from them.2 Such articulation facilitates meaningful judicial review, Ross v. Springfield School Dist. No. 19, 294 Or 357, 370, 657 P2d 188 (1982); enables the court on judicial review to give an appropriate degree of credence to the agency interpretation, Springfield Education Assn. v. School Dist. No. 19, 290 Or 217, 228, 621 P2d 547 (1980); “serve[s] to assure proper application of the law in the individual case,” Ross v. Springfield School Dist. No. 19, 300 Or 507, 517, 716 P2d 724 (1986); Ross v. Springfield School Dist. No. 19, supra, 294 Or at 370; prevents judicial usurpation of administrative functions, Davis, Administrative Law Text 321, § 16.03 (3d ed 1972); assures more careful administrative consideration, i.e., protects against careless or arbitrary action, id. at 321-22; provides a source of guidance for agency personnel as well as for persons governed by the statute, Ross v. Springfield School Dist. No. 19, supra, 300 Or at 517; helps develop and maintain the consistency in administration, id.; facilitates the parties’ planning, i.e., helps parties plan their cases for rehearings and judicial review, Davis, Administrative Law Text, supra, at 322; and keeps agencies within their jurisdiction. Id.

When the Board issues an order in a workers’ compensation contested case, this court first should review to determine if the order is adequate for meaningful judicial review, and if so, we then should proceed to review the order as authorized by ORS 183.482(7) and (8). For an order to be adequate for meaningful judicial review, “it must articulate a tenable basis for the legal conclusions by which it applies a statute [or rule] to the facts.” See 1000 Friends of Oregon v. *330LCDC, 305 Or 384, 394, 752 P2d 271 (1988), quoting Ross v. Springfield School Dist. No. 19, supra, 300 Or at 517.3 See also Market Transport v. Maudlin, 301 Or 727, 736-37, 725 P2d 914 (1986); Teledyne Wah Chang v. Energy Fac. Siting Council, 298 Or 240, 255, 692 P2d 86 (1984). A final order of the Board that contains the findings of fact and conclusions of law substantially like those required by ORS 183.470(2) is necessary for meaningful judicial review as provided in ORS 183.482(7) and (8).

I turn now to the Board’s order in this case. The Board did not write its own specific findings of fact and conclusions of law in its order.4 The Board merely affirmed and adopted the referee’s order on all issues except one that is not relevant to this discussion. It is necessary, therefore, to examine the referee’s order to determine whether it satisfies the above-described standards, i.e., whether that order is adequate for meaningful judicial review.

As previously stated, the referee’s order states that claimant’s request for a hearing is “dismissed with prejudice based on OAR 438-06-085.” OAR 438-06-085, which was in effect when the referee and the Board entered their respective orders in this case, provided:

“DISMISSAL FOR DELA Y. A request for hearing may be dismissed for want of prosecution where the party requesting the hearing occasions a delay of more than ninety (90) days without good cause. Prior to dismissal an order may be *331entered allowing a specific time within which the party requesting the hearing will have the opportunity to show cause why the case should not be dismissed. The filing of an application for a hearing day without explanation for the prior delay, does not constitute a showing of good cause.”

The referee’s citation, in his final order, to OAR 438-06-085 is not supported by any reasoning. The referee’s order is, for the most part, a recitation of the various requests made by claimant’s attorney on claimant’s behalf and the objections and arguments of the attorney representing claimant’s employer and its insurer, followed by a bare conclusion. The referee’s order does not demonstrate that claimant delayed the hearing, much less that she did so without good cause. It is devoid of specific findings of fact that would lead to and support the referee’s ultimate conclusion to dismiss with prejudice claimant’s request for hearing on the basis of OAR 438-06-085. The referee’s order, adopted by the Board, is, therefore, inadequate to permit meaningful judicial review as provided in ORS 183.482(7) and (8). This conclusion is reinforced by the following reasoning. Assume that the referee’s order in this case wás the same except that it stated that claimant’s request for a hearing is “dismissed with prejudice” and made no reference to any rule. Such an order obviously would not be adequate for an appellate court to conduct meaningful judicial review under ORS 183.482(7) and (8). Here both parties agree that “the referee’s decision, adopted by the Board, * * * cited an inapposite rule as the ground for dismissal.” For purposes of determining whether a referee’s order is adequate for meaningful judicial review, reliance by citation to an “inapposite rule” is no different than a failure to cite a rule.

In this case, the Court of Appeals reversed the Board on the basis that ORS 656.283(7) and OAR 438-06-071 entitled the claimant to offer her evidence even though she was absent from the hearing. At no time, however, did the referee or the Board consider that particular statute and rule. Neither of the parties argued to the referee or the Board that ORS 656.283(7) or OAR 438-06-071 were relevant in determining whether to dismiss with prejudice claimant’s request for hearing. Since a remand of this case for further proceedings is necessary, see Teledyne Wah Chang v. Energy Fac. Siting Council, supra, 298 Or at 255-56, I express no opinion *332regarding the correctness of the Court of Appeals’ application of ORS 656.283(7) and OAR 438-06-071.

ORS 183.482(7) and (8) provide:

“(7) Review of a contested case shall be confined to the record, the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion. * * * The court shall remand the order for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.
“(8)(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
“(b) The court shall remand the order to the agency if it finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the agency by law;
“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statutory provision.
“(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

The Supreme Court of the United States has stated that “the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” SEC v. Chenery Corp., 318 US 80, 94, 63 S Ct 454, 462, 87 L Ed 626 (1943).

In Ross v. Springfield School Dist. No. 19, 294 Or 357, 370, 657 P2d 188 (1982), we quoted from Springfield Education Assn. v. Springfield School District No. 19, 290 Or 217, 227, 621 P2d 547 (1980):

“The requirement of ORS 183.470 that the order contain findings of fact and conclusions of law is a requirement that the reasoning by which the agency applies a statute to facts to reach a result be expressed in the order. If the statute is plain on its face, the reason is obvious and may be expressed by a simple statutory reference. If the statute requires interpretation, however, the interpretation and the agency’s rationalization of it are properly a part of the reasoning of the order. Thus, under ORS 183.470, the order itself is the instrument by which an agency demonstrates that a particular interpretation or application of a statute is within a generally expressed legislative policy.”

The Board need not, in every instance, write its own specific findings of fact and conclusions of law in its order on de novo review of the decision of a referee. See ORS 656.295(6). Armstrong v. Asten-Hill Co., 90 Or App 200, 205 n 4, 752 P2d 312 (1988). The Board “may adopt the opinion and order of a referee in whole or in part; it may write its own order in whole or in part. Its obligation is to provide for our review a final order satisfying the import of ORS 183.470(2).” Id.