dissenting.
Although Judge Richardson’s concurring opinion expresses some of my doubts about the majority’s view, I cannot join in the concurrence, for I would hold that the petitioner had all the process that was due. I therefore dissent.
Stripped down to its necessary fundamentals, the majority’s opinion rests on Memphis Light, Gas & Water Div. v. Craft, 436 US 1, 98 S Ct 1554, 56 L Ed 2d 30 (1978), which the majority finds is analagous and compelling. Although it is my view that that case comes perilously close to an absurd extension of Board of Regents v. Roth, 408 US 564, 92 S Ct 2701, 33 L Ed 2d 548 (1972), I need not dispute its validity, because it is distinguishable on the facts. The majority points out:
*127“* * * The ratepayers were notified before termination that failure to pay the bill by a certain date would result in termination of services. They were not notified of any available pretermination administrative procedure for contesting the proposed termination.” 65 Or App at 120.
In the case before us claimant’s claim had been accepted, and he was receiving temporary total disability compensation. He was given express notice that his failure to keep a medical appointment without notice to the insurer of a valid reason why he could not would result in suspension of compensation. The record is perfectly clear that from that point on claimant avoided any contact with SAIF about the problem; to be sure, the record discloses that he avoided contact with his own attorney. Keeping in mind that, to avoid suspension, all claimant needed to do was either to keep an appointment of which he had notice or to notify the insurer of a substantial reason why he could not, we should recognize that we are not dealing here with governmental action that is unreasonable or arbitrary. We should also recognize, then, that there is no substantial due process problem.1
Therefore, I dissent.
Gillette, Van Hoomissen and Young, JJ, join in this dissent.ORS 656.325 provides, with respect to required medical examinations:
“* * * If the worker refuses to submit to any such examination, or obstruct the same, the rights of the worker to compensation shall be suspended with the consent of the director until the examination has taken place, and no compensation shall be payable during or for account of such period.”
Under this provision, suspended benefits are apparently permanently lost, even if the worker subsequently submits to and satisfies a medical examination. (Presumably, if the worker prevails after a hearing on a medical examination dispute under ORS 656.325(6) and ORS 656.283, the suspended benefits would have to be paid.) If the facts here actually presented the threat of an unfair, arbitrary or unreasonable loss of benefits, the majority’s analysis might be well taken.