2011 ORS § 656.740¹
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 employers 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 boards 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 persons 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]