The opinion
GILLETTE, J.,
dissenting.
This case presents an easy question which the majority unaccountably makes difficult. The question is: Does the Workers’ Compensation Board (the Board) have the statutory authority to promulgate an administrative rule that limits the way in which a party can prove a fact material to the Board’s jurisdiction to one form of proof, to the exclusion of all other forms? Because I would hold that the answer to this question is no, I am compelled to dissent from the majority’s answer to the contrary.
The facts are adequately stated in the majority opinion. The Board’s statutory authority to promulgate rules is found in ORS 656.726(4), which provides:
“The board may make and declare all rules which are reasonably required in the performance of its duties, including but not limited to rules of practice and procedure in connection with hearing and review proceedings * *
Nothing in this specific language appears to me to authorize the Board to deny to any party to a proceeding the right to offer probative evidence with respect to any issue in dispute. I have no doubt, for example, that this court would invalidate unhesitatingly any Board rule that purported to restrict a claimant to testimony from a particular form of medical specialist, although other kinds of specialists would be able to provide probative information with respect to the medical question involved. The fact that the issue in this case is when a letter was mailed, rather than how an arm came to be broken, should not — and, to me, does not — make any difference.
When the legislature wishes to do so, it is capable of prescribing exactly how mailing is to be accomplished. See, *6 e.g., ORS 19.028 1 and 87.018. 2 Instead, it has in this case authorized mailing in plain, generic terms:
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“(2) The requests for review [by the Board of referees’ orders] shall be mailed to the board and copies of the request shall be mailed to all parties to the proceedings before the referee.”
ORS 656.295(2) (emphasis supplied). When the legislature clearly is willing to have requests for review filed in any way that constitutes a “mailing,” the Board exceeds its authority when it purports without statutory authorization to narrow the ways in which that task can be accomplished. We should say so.
Neither is it a justification to say that, rather than limiting the way in which mailing can occur, the rule is merely one of proof. As I have already indicated, permitting such a rule of proof withstands scrutiny only until the potential scope of such authority is examined. And, in any event, a rule that only permits proof of mailing in one way is a rule that, as a practical matter, only permits mailing in one way.
The majority’s decision today grants to the Board *7 authority the legislature has not given it. In the process, it undermines the salutary administrative law principle that it is the legislature, not the agency, that controls an agency’s authority. The Court of Appeals majority correctly analyzed this case. It should be affirmed.
I respectfully dissent.
Lent, J., joins in this dissenting opinion.
ORS 19.028 states:
“(1) Filing a notice of appeal in the Court of Appeals or the Supreme Court may be accomplished by mail. The date of filing such notice shall be the date of mailing, provided it is mailed by registered or certified mail and the party filing the notice has proof from the post office of such mailing date. Proof of mailing shall be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken. If the notice is received by the court on or before the date by which such notice is required to be filed, the party filing the notice is not required to file proof of mailing.
“(2) Service of notice of appeal on a party, court reporter or the clerk of the trial court, or service of a petition for judicial review on a party or administrative agency may be accomplished by mail, subject to the same requirements as filing notice of appeal by mail as provided in subsection (1) of this section.
“(3) Except as otherwise provided by law, the provisions of subsections (1) and (2) of this section are applicable to petitions for judicial review, cross petitions for judicial review and petitions under the original jurisdiction of the Supreme Court or Court of Appeals.”
ORS 87.018 states:
“All notices required under ORS 87.001 and 87.060 and 87.075 to 87.093 shall be in writing and delivered in person or delivered by registered or certified mail except for the ‘Information Notice to Owner’ described in ORS 87.093 which may also be proved by a United States Postal Service certificate of mailing.”