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(11) and OAR 436-120-0185 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 under section (6) of this rule when the parties resolve a dispute within the scope of OAR 436-120. The director may issue a letter of agreement instead of an administrative order. (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. (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(1) and OAR 436-001-0400 to 436-001-0440. (3) Hearings before an administrative law judge. (a) Under ORS 656.340(16) and 656.704(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 within 60 days of the mailing date of the order. (b) Under ORS 656.704(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 within 30 days after the party received the dismissal or written denial. (c) Under ORS 656.704(2), an insurer sanctioned under OAR 436-120-0900, a provider or counselor sanctioned under ORS 656.340(9) and OAR 436-120-0915, a provider denied registration under ORS 656.340(9)(a) and OAR 436-120-0800, or an individual denied certification under ORS 656.340(9)(a) and OAR 436-120-0810, may request a hearing as provided in OAR 436-001-0019 no later than 60 days after the party received notification of the action. (4) Contested case hearings of civil penalties. Under ORS 656.740 an insurer or an employer may appeal a proposed order or proposed assessment of civil penalty issued under ORS 656.745 and OAR 436-120-0900 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 Workers' Compensation Board will conduct the hearing under ORS 656.740 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. (6) Letter of agreement. (a) A dispute regarding vocational assistance may be resolved by agreement between the parties to the dispute. The agreement must be in writing and approved by the director. (b) A letter of agreement will become effective on the 10th day after the date the director issues the letter of agreement, unless the agreement specifies otherwise. Once the agreement is effective, the director may revise the agreement or reinstate administrative review only under one or more of the following conditions: (A) A party fails to honor the agreement; (B) The agreement was based on misrepresentation; (C) Implementation of the agreement is not feasible because of unforeseen circumstances; or (D) All parties request revision or reinstatement of the dispute. (c) A letter of agreement may include an agreement on attorney fees, if any, to be paid to the worker’s attorney.