DEITS, J.
Reversed and remanded.
Richardson, P.J., dissenting.
DEITS, J.
Claimant seeks review of an order of the Workers' Compensation Board which dismissed her appeal for lack of jurisdiction. The referee issued an order denying the claim on August 12, 1985; the Board did not receive a request for review within 30 days. ORS 656.289 (3). In February 1986, the Board received an affidavit from claimant's attorney, stating that a request had been mailed by regular mail to the Board on September 6, 1985, within the statutory time limit. We held in Weyerhaeuser Company v. Miller, 88 Or. App. 286, 745 P.2d 429 (1987), that the adoption of OAR 438-05-040 (4)(b) requiring proof from the post office that mailing of the request occurred within the time limit imposed by ORS 656.289 (3) exceeds the Board's authority, and that the Board should determine, as a jurisdictional fact, whether the request was timely mailed. The same holding applies on these facts.
Reversed and remanded.