Time within which hearing must be requested
Source:
Section 656.319 — Time within which hearing must be requested, https://www.oregonlegislature.gov/bills_laws/ors/ors656.html.
See also annotations under ORS 656.262 (Notice; hearing requests).
Notes of Decisions
Failure of claimant’s attorney to file request for hearing is not excusable for good cause unless attorney’s reason for failing to file would be good cause if attributed to claimant. Sekermestrovich v. SAIF, 280 Or 723, 573 P2d 275 (1977); EBI Companies v. Lorence, 72 Or App 75, 695 P2d 61 (1985), Sup Ct review denied; Mendoza v. SAIF, 123 Or App 349, 859 P2d 582 (1993), Sup Ct review denied
Timely filing of request for hearing requires that request be received by board within time limit, not merely mailed. Bergeron v. Ontario Rendering Co., 34 Or App 1025, 580 P2d 216 (1978), Sup Ct review denied
Where issue is allocation of responsibility among insurers rather than compensability of claim, claimant need not appeal nonresponsibility finding in favor of particular insurer to protect claim right in event of later reallocation. Hanna v. McGrew Bros. Sawmill, 44 Or App 189, 605 P2d 724 (1980), modified 45 Or App 757, 609 P2d 422 (1980)
“Notification” of denial occurs on date denial notice is deposited in mail, not date shown on body of denial notice. Madewell v. Salvation Army, 49 Or App 713, 620 P2d 953 (1980)
Where failure to make timely request for hearing was attributable to error by attorney’s employee not responsible for recognizing or correctly handling notice of decision, board was not precluded from finding that error was excusable neglect. Brown v. EBI Companies, 289 Or 455, 616 P2d 457 (1980); Ogden Aviation v. Lay, 142 Or App 469, 921 P2d 1321 (1996)
Where claimant requested hearing on or about same date claimant filed claim and did not renew request after claim was denied, request on sole question of whether claim should be accepted was premature and therefore ineffective. Syphers v. K-W Logging, Inc., 51 Or App 769, 627 P2d 24 (1981), Sup Ct review denied
Claimant’s request for hearing was timely filed where request followed all three determination orders for same claim within one year of issuance, even though request for hearing referred only to first two orders. Shaw v. SAIF, 63 Or App 239, 662 P2d 805 (1983), Sup Ct review denied
Where claimant mailed hearing request on 60th day, after insurer’s claims supervisor lead him to believe that that would protect his rights, and Workers’ Compensation Board received request on 61st day, there was no lack of diligence by claimant or prejudice to other party and late filing was excused by good cause. Voorhies v. Wood, Tatum, Mosser, 81 Or App 336, 725 P2d 405 (1986), Sup Ct review denied
Test for determining whether good cause exists has been equated to standard of “mistake, inadvertence, surprise or excusable neglect” recognized under former ORS 18.160 and present ORCP 71B. Voorhies v. Wood, Tatum, Mosser, 81 Or App 336, 725 P2d 405 (1986), Sup Ct review denied
Purported backup denial by employer did not require response where claim had been ordered accepted following hearing. Knapp v. Weyerhaeuser Co., 93 Or App 670, 763 P2d 746 (1988), Sup Ct review denied
Claimant had good cause for filing late where insurer had previously engaged in regular correspondence with attorney but mailed denial to claimant only. Cowart v. SAIF, 94 Or App 288, 765 P2d 226 (1988)
Where notice was properly sent, fact that claimant did not actually receive notice did not toll time limitation for requesting hearing. Wright v. Bekins Moving and Storage Co., 97 Or App 45, 775 P2d 857 (1989), Sup Ct review denied
Where claimant did not receive employer’s denial letter until 60-day period had run, claimant had good cause for filing hearing request late. Giusti Wine Co. v. Adams, 102 Or App 329, 794 P2d 451 (1990)
Where employer treated letter from claimant’s attorney as request for hearing, employer could not argue that claimant had failed to expressly request hearing. Morelock Wood Products v. Baur, 105 Or App 371, 804 P2d 519 (1991)
Where claimant reasonably left legal pursuit of claim to attorney, employer was aware that claimant was represented by counsel, but employer failed to mail notice of denial to attorney, claimant demonstrated “good cause” for failure to request hearing within 60 days. Freres Lumber Co. v. Jegglie, 106 Or App 27, 806 P2d 164 (1991)
Request for hearing must be referable to particular denial. Guerra v. SAIF, 111 Or App 579, 826 P2d 1034 (1992)
Referee has subject matter jurisdiction over case even if request for hearing is subject to denial as untimely. SAIF v. Roles, 111 Or App 597, 826 P2d 1039 (1992), Sup Ct review denied
Appellate court review of good cause determination is limited to seeing whether determination is within range of discretion delegated to board. Ogden Aviation v. Lay, 142 Or App 469, 921 P2d 1321 (1996)
Mental problem that is less than incompetency can satisfy requirement of “good cause” for filing during period after 60 days and not later than 180 days. SAIF v. Avery, 167 Or App 327, 999 P2d 1216 (2000), Sup Ct review denied
Where insurer accepts claim but fails to process claim to closure, “inaction” triggering two-year time limit for requesting hearing occurs when insurer fails to timely respond to claimant’s written request for closure. French-Davis v. Grand Central Bowl, 186 Or App 280, 62 P3d 865 (2003)
Lack of diligence that defeats showing of good cause for untimely request for hearing is lack of diligence in requesting hearing on denial of claim. Snyder v. Interstate Distributor Company, 246 Or App 130, 265 P3d 45 (2011)
Standard to determine “good cause” for untimely hearing request is analogous to ORCP 71 standard of “mistake, inadvertence, surprise, or excusable neglect,” construed liberally to avoid depriving a party of the opportunity to be heard. Goodwin v. Universal Media-NBC Universal, 298 Or. App, 475, 448 P3d 1168 (2019)
Law Review Citations
32 WLR 217 (1996)
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