ORS 656.740
Review of proposed order declaring noncomplying employer or nonsubjectivity determination; review of proposed assessment or civil penalty; insurer as party; hearing

(1)

A person may contest a proposed order of the Director of the Department of Consumer and Business Services declaring that person to be a noncomplying employer, or a proposed assessment of civil penalty, by filing with the Department of Consumer and Business Services, within 60 days after the mailing of the order, a written request for a hearing. Such a request need not be in any particular form, but shall specify the grounds upon which the person contests the proposed order or assessment. An order by the director under this subsection is prima facie correct and the burden is upon the employer to prove that the order is incorrect.

(2)

A person may contest a nonsubjectivity determination of the director by filing a written request for hearing with the department within 60 days after the mailing of the determination.

(3)

When any insurance carrier, including the State Accident Insurance Fund Corporation, is alleged by an employer to have contracted to provide the employer with workers’ compensation coverage for the period in question, the Workers’ Compensation Board shall join such insurance carrier as a necessary party to any hearing relating to such employer’s alleged noncompliance or to any hearing relating to a nonsubjectivity determination and shall serve the carrier, at least 30 days prior to such hearing, with notice thereof.

(4)

A hearing relating to a nonsubjectivity determination, to a proposed order declaring a person to be a noncomplying employer, or to a proposed assessment of civil penalty under ORS 656.735 (Civil penalty for noncomplying employers), shall be held by an Administrative Law Judge of the board’s Hearings Division. However, a hearing shall not be granted unless a request for hearing is filed within the period specified in subsection (1) or (2) of this section, and if a request for hearing is not so filed, the nonsubjectivity determination, order or penalty, as proposed, shall be a final order of the department and shall not be subject to review by any agency or court.

(5)

Notwithstanding ORS 183.315 (Application of provisions of chapter to certain agencies) (1), the issuance of nonsubjectivity determinations, orders declaring a person to be a noncomplying employer or the assessment of civil penalties pursuant to this chapter, the conduct of hearings and the judicial review thereof shall be as provided in ORS chapter 183, except that:

(a)

The order of an Administrative Law Judge in a contested case shall be deemed to be a final order of the director.

(b)

The director shall have the same right to judicial review of the order of an Administrative Law Judge as any person who is adversely affected or aggrieved by such final order.

(c)

When a nonsubjectivity determination or an order declaring a person to be a noncomplying employer is contested at the same hearing as a matter concerning a claim pursuant to ORS 656.283 (Hearing rights and procedure) and 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim), the review thereof shall be as provided for a matter concerning a claim.

(6)

(a) If a person against whom an order is issued pursuant to this section prevails at hearing or on appeal, the person is entitled to reasonable attorney fees to be paid by the director from the Workers’ Benefit Fund.

(b)

If a person against whom an order is issued is found to be a noncomplying employer by the director, but the person proves coverage pursuant to subsection (3) of this section and the insurer failed to file timely proof of coverage as required by ORS 656.419 (Workers’ compensation insurance contracts) or improperly canceled the person’s coverage, the employer is entitled to reasonable attorney fees paid by the insurer.

(c)

If a worker prevails at hearing or on appeal from a nonsubjectivity determination, the worker is entitled to reasonable attorney fees to be paid by the director from the Workers’ Benefit Fund and reimbursed by the employer. [1973 c.447 §5; 1975 c.341 §1; 1975 c.759 §19; 1977 c.804 §31; 1979 c.839 §22; 1983 c.816 §14; 1987 c.234 §3; 1995 c.332 §65a; 1995 c.641 §13; 1999 c.246 §1; 1999 c.1020 §2; 2003 c.170 §9; 2007 c.241 §19]

Notes of Decisions

Insurer’s denial of coverage in compensation case prior to joinder in compliance case did not satisfy requirement to specifically deny coverage in compliance case. SAIF v. Robertson, 120 Or App 1, 852 P2d 212 (1993)

Employer seeking attorney fees is prevailing party if proposed order of noncompliance was incorrect at time of issuance. King v. Dept. of Ins. and Finance, 126 Or App 1, 867 P2d 511 (1994), Sup Ct review denied

§§ 656.001 to 656.794

Law Review Citations

55 OLR 432-445 (1976); 16 WLR 519 (1979); 22 WLR 559 (1986)

Chapter 656

Notes of Decisions

Party having affirmative of any issue must prove it by preponderance of evidence unless legislature fixes some different quantum of proof. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Amendments to existing statutes and enactment of additional statutes by 1995 legislation generally apply to pending cases and to orders still appealable on June 7, 1995, effective date. Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), Sup Ct review denied

Amendments to existing statutes and enactment of additional statutes by 1995 legislation do not extend or shorten procedural time limitations with regard to actions taken prior to June 7, 1995, effective date. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995)

Atty. Gen. Opinions

Benefit unavailability for inmates engaged in prison work programs, (1996) Vol 48, p 134

Law Review Citations

24 WLR 321, 341 (1988); 32 WLR 217 (1996)

Source
OR Legislature
Last accessed
May. 15, 2020
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