OAR 436-120-0008
Administrative Review and Hearings
(1)
Administrative review.(a)
A worker wanting review of any vocational eligibility evaluation or vocational assistance matter must request administrative review by the director.(b)
Under ORS 656.340 (Vocational assistance procedure)(11) and OAR 436-120-0185 (Choosing a Counselor) when the worker and insurer are unable to agree on a counselor, the insurer must request administrative review by the director.(c)
Effective vocational assistance is best realized in a nonadversarial environment. The first objective of administrative review is to bring the parties to resolution through alternative dispute resolution procedures, including mediation conferences, whenever possible and appropriate. When a dispute is not resolved through mutual agreement or dismissal, the director will close the record and issue a director’s review and order.(d)
The worker’s request for review must be submitted to the division no later than the 60th day after the date the worker received written notice of the insurer’s action.(e)
Issues raised by the worker where written notice was not provided may be reviewed at the director’s discretion.(f)
The worker, insurer, employer at injury, and provider must supply needed information, attend conferences and meetings, and participate in the administrative review process as required by the director.(A)
Upon the director’s request, any party to the dispute must provide available information within 14 days of the request.(B)
The insurer must promptly schedule, pay for, and submit to the division any medical or vocational tests, consultations, or reports required by the director.(C)
The worker, insurer, employer at injury, or provider must simultaneously provide copies of material to the other parties to the dispute when submitting material to the division.(D)
Failure to comply with this subsection may result in the director dismissing the administrative review or deciding the issue on the basis of available information when the worker, insurer, provider, or employer at injury fails to comply without reasonable cause.(g)
The director may issue a letter of agreement when the parties resolve a dispute within the scope of these rules.(A)
Any agreement may include an agreement on attorney fees, if any, to be paid to the worker’s attorney.(B)
The agreement will become effective on the 10th day after the letter of agreement is issued unless the agreement specifies otherwise.(C)
The director may revise a letter of agreement.(h)
The parties have 60 days from the date the director’s review and order is issued to request a hearing under OAR 436-001-0019 (Requests for Hearing).(i)
The director may on the director’s own motion reconsider or withdraw any order that has not become final by operation of law.(j)
A party may request reconsideration of a director’s review and order upon an allegation of error, omission, misapplication of law, incomplete record, or the discovery of new material evidence that could not reasonably have been discovered and produced during the review.(A)
The director may grant or deny a request for reconsideration at the director’s sole discretion.(B)
A request for reconsideration must be received by the division before the director’s review and order becomes final or, if appealed, before the proposed and final order is issued.(C)
The parties may submit new material evidence consistent with this rule and may respond to such evidence submitted by others.(D)
Parties must simultaneously notify all other interested parties of their contentions and provide them with copies of all additional information presented.(E)
A request for reconsideration does not stay the 60-day time period within which the parties may request a hearing.(2)
Attorney fees. Attorney fees will be awarded as provided in ORS 656.385 (Attorney fees in cases regarding certain medical service or vocational rehabilitation matters)(1) and OAR 436-001-0400 (General Provisions and Requirements for Attorney Fees Awarded by the Director) to 436-001-0440 (Time Within Which Attorney Fees Must Be Paid).(3)
Hearings before an administrative law judge.(a)
Under ORS 656.340 (Vocational assistance procedure)(16) and 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim)(2), any party that disagrees with an order issued under subsection (1)(c) of this rule or a dismissal may request a hearing as provided in OAR 436-001-0019 (Requests for Hearing) within 60 days of the mailing date of the order.(b)
Under ORS 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim)(2), any party that disagrees with an order of dismissal based on lack of jurisdiction or denial of reimbursement for vocational assistance costs may request a hearing as provided in OAR 436-001-0019 (Requests for Hearing) within 30 days after the party received the dismissal or written denial.(c)
Under ORS 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim)(2), an insurer sanctioned under OAR 436-120-0900 (Audits, Penalties and Sanctions), a provider or counselor sanctioned under ORS 656.340 (Vocational assistance procedure)(9) and OAR 436-120-0915 (Sanctions of Providers and Counselors), a provider denied registration under ORS 656.340 (Vocational assistance procedure)(9)(a) and OAR 436-120-0800 (Registration of Providers), or an individual denied certification under ORS 656.340 (Vocational assistance procedure)(9)(a) and OAR 436-120-0810 (Certification and Classification of Provider Staff), may request a hearing as provided in OAR 436-001-0019 (Requests for Hearing) no later than 60 days after the party received notification of the action.(4)
Contested case hearings of civil penalties. Under ORS 656.740 (Review of proposed order declaring noncomplying employer or nonsubjectivity determination) an insurer or an employer may appeal a proposed order or proposed assessment of civil penalty issued under ORS 656.745 (Civil penalty for inducing failure to report claims) and OAR 436-120-0900 (Audits, Penalties and Sanctions) as follows:(a)
The insurer or employer must submit the request for hearing in writing to the division. The request must specify the grounds upon which the proposed order or assessment is contested.(b)
The party must submit the request to the division within 60 days after the mailing date of the notice of the proposed order or assessment.(c)
The division will forward the request and other pertinent information to the Hearings Division of the Workers’ Compensation Board.(d)
The Hearings Division will conduct the hearing under ORS 656.740 (Review of proposed order declaring noncomplying employer or nonsubjectivity determination) and ORS chapter 183.(5)
Director’s order. At any time, the director may order the insurer to determine eligibility or provide specified vocational assistance to achieve compliance with ORS chapter 656 and these rules. The order may be appealed as provided by statute and these rules.
Source:
Rule 436-120-0008 — Administrative Review and Hearings, https://secure.sos.state.or.us/oard/view.action?ruleNumber=436-120-0008.