BLACKMAN v. SAIF, 60 Or. App. 446 (1982)

653 P.2d 1315

No. D270142, CA A23494Oregon Court of Appeals.Argued and submitted October 15, 1982.
Reversed and remanded December 1, 1982.

Judicial Review from Workers’ Compensation Board.

Robert K. Udziela, Portland, argued the cause for petitioner. With him on the brief was Pozzi, Wilson, Atchison, O’Leary
Conboy, Portland.

Darrell E. Bewley, Appellate Counsel, State Accident Insurance Fund Corporation, Salem, argued the cause and filed the brief for respondent State Accident Insurance Fund Corporation.

William F. Gary, Solicitor General, Salem, argued the cause for respondent Workers’ Compensation Board. With

Page 447

him on the brief was Dave Frohnmayer, Attorney General, Salem.

Before Richardson, Presiding Judge, and Thornton and Van Hoomissen, Judges.

RICHARDSON, P. J.

Reversed and remanded.

Page 448

RICHARDSON, P. J.

Claimant appeals from the Workers’ Compensation Board’s “order of disbursement of third party funds.” ORS 656.593. The order required distribution to SAIF of certain amounts claimant recovered in an action against a third party for an injury for which SAIF had paid benefits under the Workers’ Compensation Law.

The board and SAIF argue that we lack jurisdiction over the appeal and move that we dismiss it. For the reasons stated i Schlecht v. SAIF, 60 Or. App. 449, 653 P.2d 1284 (1982), we conclude that we have jurisdiction. We turn to the merits.

The record in this case consists only of SAIF’s letter requesting a “hearing regarding the distribution of [the third party action] funds,” other correspondence and the board’s order. Claimant argues, correctly, that there is no evidence to support the contested part of the board’s award to SAIF. Claimant accordingly argues that we should reverse that part of the award on the ground that there was a failure of proof. We do not agree that that is the appropriate disposition of the appeal. The problem with the proceedings below was not that SAIF’s evidentiary showing was inadequate; SAIF and, for that matter, claimant had no opportunity to make an evidentiary showing through the procedures the board and the parties followed. We held in Schlecht v. SAIF, supra, that third-party distribution orders of the board under ORS 656.593 are reviewable by this court pursuant to ORS 656.298 as matters concerning a claim. See ORS 656.704. It follows that the proceedings that culminate in a third-party distribution order must produce a record adequate for our review under ORS 656.298. It also follows that when, as here, appropriate proceedings were not conducted and the absence of a record makes it impossible for us to consider factual issues raised by the parties on appeal, a remand for further proceedings is necessary. See Patton v. St. Bd. Higher Ed., 59 Or. App. 477, 651 P.2d 169 (1982).[1]

Reversed and remanded.

Page 449