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Roy v. McCormack Pacific Co.2/28/2001
ployer's prompt closure of the claim immediately after the issuance of the denial, it does not appear that its conduct was intended to shortcut the ordinary process of claim closure or was otherwise unreasonable." Chaffee, 94 Or App at 85.
In this case, claimant expressly argued to the Board that the procedural error of denying an accepted claim occurred before the claim was closed, but the Board did not respond to that argument. As a result of that failure, we said that we could not discern from the record before us what effect, if any, SAIF's procedural error had on the payment of compensation for the accepted claim and concluded that the failure of the Board to address claimant's argument rendered its order insufficient for our review. It is that perception that distinguishes this case from Chaffee, in which this court made a ruling that was tantamount to a ruling of harmless error on the facts of that case. As we stated in our initial opinion, the more prudent course of action on the record before us is to permit the Board to make the determination of the effect of SAIF's error in the first instance.
In claimant's petition for reconsideration, he requests that the Board's order be reversed on the ground that it failed to address an evidentiary ruling of the administrative law judge (ALJ). In our initial opinion, we held that claimant had not shown that he put the Board on notice that the evidentiary ruling was an issue on appeal to the Board. In his petition for reconsideration, claimant points to the language of the letter of request for Board review in which he said, "Review is requested on each and every issue raised at hearing." However, as we stated in our opinion, the letter focused the Board's attention on the issue of compensability and did not expressly refer to any evidentiary ruling. In lieu of submitting a brief on appeal to the Board, claimant submitted a copy of the closing argument that he had submitted to the ALJ. The review by the Board resulted in an order that stated: "On review, the issue is compensability." Thereafter, claimant did not correct the Board's understanding by requesting the Board to consider the evidentiary ruling on reconsideration. To adopt claimant's argument under these circumstances would result in a reversal on judicial review on the ground that the Board is required to review every ruling in the record made before the ALJ, even though the Board has not been put on explicit notice as to the issue before it. For obvious reasons, we decline claimant's invitation to promulgate such a principle of law. There is no apparent reason that would have prevented claimant from alerting the Board to the evidentiary issue in the way that he alerted it to the procedural error.
On SAIF's petition, reconsideration allowed; opinion adhered to as modified. On claimant petition, reconsideration allowed; opinion adhered to.
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