BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92276

	Plaintiff,			)

		vs.			)  Citation No.  R190510792

DAVID D. CORNWALL			)

					)

	Defendant			)  OPINION AND ORDER



Hearing convened and closed before Referee Mills in Astoria,
Oregon on May 11, 1993. OROSHA was represented by Assistant
Attorney General Norm Kelley. Steve Roberts was the safety
compliance officer. David Cornwall was present and
unrepresented. Business Support Services recorded the
proceedings. Exhibits 1 through 3 were received into evidence.



                        ISSUES



OROSHA moves to dismiss Mr. Cornwall's request for hearing
regarding Citation No. R1905-107-92 as being untimely. The
hearing was limited to that issue. Exhibits, testimony and
argument were taken on that issue only.



                          FINDINGS OF FACT



The employer, David Cornwall, was served with Citation No.
R1905-107-92 on July 15, 1992. The citation required that a
number of violations be corrected. Mr. Cornwall undertook the
correction of those items. He intended to appeal the citation
but thought that he would have better grounds if he waited until
after he had made the corrections.



Mr. Cornwall realized that the 20 days for appeal was coming up
soon. On August 3, 1992 he called the OROSHA office in Portland
and spoke to somebody, a woman, who he cannot identify
specifically. He explained to her when he had received the
citation and that he wanted to appeal and that he was aware that
his time was running. He was advised to go ahead and mail his
appeal to Salem and that that would work out fine. This seemed
logical to him and that is what he did. Either on that day,
August 3, in the afternoon, or the next day, August 4, he
deposited his Notice of Appeal in the mail. It was not, however,
received in Salem until August 6.



                   FINDING OF ULTIMATE FACT



Mr. Cornwall did not timely appeal the citation which is at
issue in this case.



                 CONCLUSIONS AND OPINION



ORS 654.078(1) provides that "An employer may contest a
citation, a proposed assessment of civil penalty and the period
of time fixed for correction of a violation, or any of these, by
filing with the Department, within 20 days after receipt of the
citation, notice or order, a written request for a hearing
before the board."



ORS 654.078(3) provides that "A hearing on any question relating
to the validity of a citation or the proposed civil penalty to
be assessed therefor shall not be granted unless a request for
hearing is filed by the employer within the period specified in
Subsection 1 of this section. If a request for hearing is not so
filed the citation and the assessment of a penalty as proposed
shall be a final order of the department and it shall not be
subject to review by any agency or court."



The citation given to the employer in this case, pursuant to
Administrative Rule, specifically advises, in large type set,
that the request for hearing must be received on or before the
20th day after service of the citation.



There is no question that the request for hearing on the
citation at issue in this matter was not received within 20
days. It was, therefore, late. Mr. Cornwall's position is that
he should be excused from the late filing because he was misled
by his conversation with the OROSHA representative which
indicated to him that he could perfect a timely appeal by
mailing a request for hearing when he did.



I agree with Mr. Cornwall that the result is unfair, but I do
not believe I have any discretion. Unlike other statutory
schemes, there is no good cause exception to the 20-day request
deadline in the statute dealing with citations for safety
violations. There is a procedure set forth in OAR 437-01-270
which allows the Director, in the Director's discretion, to
grant relief where there has been an untimely filing of an
appeal. However, that discretionary provision does not authorize
me to grant claimant relief from the 20-day deadline. I have
reviewed the case law and there is no authority for the
proposition that there is any sort of a good cause exception to
the 20-day requirement.



Accordingly, since Mr. Cornwall's request for hearing was late,
I do not have jurisdiction under ORS 654.078(1) to proceed to
hearing on the merits of the citation. This matter shall be
dismissed.



                         ORDER



IT IS HEREBY ORDERED that the employer's request for hearing in
the above referenced matter is dismissed as being untimely. The
citation is affirmed.



IT IS SO ORDERED.



NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing petition to the State Court Administrator, Record
Section, 1163 State Street, Salem, Oregon 97310, within 60 days
following the date this Order is entered and served as shown
hereon. The procedure for such judicial review is prescribed by
ORS 183.480 and ORS 183.482.



	Entered at Portland, Oregon on MAY 2 8 1993 



				WORKERS' COMPENSATION BOARD

				By John Mark Mills, Referee