The opinion
NEWMAN, J.,
dissenting.
The majority asserts that ORS 656.319(1) means, without exception, that the date of mailing is the date on which a claimant is “notified” of the insurer’s denial. Both Norton v. Compensation Department, 252 Or 75 , 448 P2d 382 (1968), and Burkholder v. SAIF, 11 Or App 334 , 502 P2d 1394 (1972), repudiate that inflexible position. As Norton says:
“It is, of course, conceivable that the mailing of the notice of denial will not bring notice of the denial to the workman within 60 days after the denial or will not bring notice within a reasonably substantial time after the mailing, all through no fault of the workman. What relief can be granted to the workman in such event will have to depend upon the particular circumstances of each case.” 252 Or at 78 .
The referee found, and the parties do not dispute, that claimant did not receive insurer’s denial letter of August 20,1985. He first learned of the denial after June 18,1986. He had not changed his address. He had regularly received mailings from insurer at that address. Absolutely nothing happened to alert him to the denial until he received the *50 settlement letter from insurer that referred to it. Then he acted immediately and requested a hearing. What more could he have done? Yet, the majority says he is cut off. The legislature did not intend such a startling result.
Contrary to the majority’s position, the issue is not whether the insurer is at fault. 1 The majority misinterprets Burkholder, the point of which is not that the insurer was at fault because it misaddressed the envelope, but that the claimant, through no fault of his own, was not notified of the denial. It does not matter here that insurer correctly addressed the denial letter. The point is that claimant, through no fault of his own, was not notified of it.
The legislature never intended a Kafkaesque system that cuts off a claimant’s remedy, even though he has no notice that he must act to preserve his rights. We decided Burkholder in 1972. ORS 656.319 then provided, as it does today, for a claimant to request a hearing within the 60-day and 180-day periods from the time when he is notified of the denial. Nonetheless, in Burkholder we applied Norton and ruled that the 60 day period did not begin to run on the date that the insurer mailed the denial letter, because the claimant, through no fault of his own, was not notified of the denial. The legislature has frequently amended the Workers’ Compensation Law after 1972, but it has not amended ORS 656.319 to repudiate Burkholder.
Burkholder speaks to when a claimant is “notified” of a denial, as does Norton. Burkholder leaves undisturbed the 60-day and 180-day periods from the time of notification within which a claimant must request a hearing. Neither period begins to run until the claimant is notified of the denial; but, even if, as the majority asserts, my position creates a third time period, this is precisely what Burkholder allows in *51 “extenuating circumstances.” It is precisely what the legislature has recognized by accepting that decision in the intervening years.
We should continue to construe the act in favor of the worker. In Livingston v. State Ind. Acc. Com., 200 Or 468, 472 , 266 P2d 684 (1954), the court stated:
“This court has uniformly held that the provisions of the Workmen’s Compensation Law should be interpreted liberally in favor of the workman, and particularly should this be so when we are confronted with a ‘borderline’ case. In the interests of justice, and to carry out the humane purposes of the Compensation Law, all reasonable doubts should be resolved in favor of the workman.”
We need only follow our own precedents here to carry out the humane purposes of the act. The majority urges us to “disapprove” Burkholder. Why? It is consistent with a long tradition that an injured party should not lose his remedy because he is kept in ignorance of what he should do to gain redress.
I dissent.
Rossman, Deits and Riggs, JJ., join in this dissent.
If insurer had acted in the manner then strongly advised by former OAR 438-05-065, it would have delivered the denial to claimant by “registered or certified mail with return receipt requested.” Had the insurer used that form of mailing, it would then have had reason to believe that claimant had not received notice of the denial and it could have acted to see that he did receive it. The Board amended former OAR 438-05-065 after it heard this claimant’s appeal to require that a notice of denial “shall be delivered by registered or certified mail with return receipt requested or by personal service * * (Emphasis supplied.)