The opinion
WARREN, J.,
dissenting.
The majority reads more into Sekermestrovich v. SAIF, 280 Or 723 , 573 P2d 275 (1977), and Brown v. EBI Companies, 289 Or 455 , 616 P2d 457 (1980), than is warranted. Sekermestrovich , according to Brown , established two principles: (1) “Good cause,” as it is used in ORS 656.319, refers to the same kind of mistake, inadvertence, surprise or excusable neglect that permits relief from a default judgment under former ORS 18.160 (repealed by Or Laws 1981, ch 898, § 53), now ORCP 71B(1). (2) The personal negligence of a claimant’s attorney is not, as a matter of law, good cause.
In Brown , the question was whether negligence in the chain of communications, having nothing to do with the attorney personally, is not good cause as a matter of law. The Board, citing Sekermestrovich , had held that it was not. The court stated, in referring to the cases construing former ORS 18.160, that it is at least within the range of the Board’s discretion to relieve a claimant from a default caused by negligence of communication. The Board was not required to find, as a matter of law, that the facts did not constitute good cause. The court concluded by saying:
“We do not hold in turn that on the facts of this case the claimant had ‘good cause’ for the delayed filing as a matter of law. We hold only that a finding of ‘good cause’ was not forclosed by our decision in Sekermestrovich v. SAIF, as the Board appears to have thought. This judgment was for the referee and the Board to make in the first instance. ” 289 Or at 460 . (Emphasis supplied.)
The court did not say, as the majority would suggest, that the Board must decide in every case whether the facts would justify setting aside a judgment under former ORS 18.160. It *519 said only that a decision on good cause under the facts was within the Board’s discretion. The Board was not, as a matter of law, required to decide the case one way or another. Our review of that exercise of discretion is governed by the standard stated in McPherson v. Employment Division, 285 Or 541 , 591 P2d 1381 (1979). See Brown v. EBI Companies, supra, 289 Or at 460 n 3. The term “good cause” is a delegative one, and we should not disturb the Board’s decision unless it is “unlawful in substance.” McPherson v. Employment Division, supra, 285 Or at 557 .
What the Board has done here is precisely what the court in Brown said it should do. There is no requirement that the Board articulate more than it did — that a claimant’s subjective belief as to the validity of a claim is not good cause for the late filing of a hearing request.
I respectfully dissent.