2017 ORS 656.319¹
Time within which hearing must be requested

(1) With respect to objection by a claimant to denial of a claim for compensation under ORS 656.262 (Processing of claims and payment of compensation), a hearing thereon shall not be granted and the claim shall not be enforceable unless:

(a) A request for hearing is filed not later than the 60th day after the mailing of the denial to the claimant; or

(b) The request is filed not later than the 180th day after mailing of the denial and the claimant establishes at a hearing that there was good cause for failure to file the request by the 60th day after mailing of the denial.

(2) Notwithstanding subsection (1) of this section, a hearing shall be granted even if a request therefor is filed after the time specified in subsection (1) of this section if the claimant can show lack of mental competency to file the request within that time. The period for filing under this subsection shall not be extended more than five years by lack of mental competency, nor shall it extend in any case longer than one year after the claimant regains mental competency.

(3) With respect to subsection (2) of this section, lack of mental competency shall apply only to an individual suffering from such mental disorder, mental illness or nervous disorder as is required for commitment or voluntary admission to a treatment facility pursuant to ORS 426.005 (Definitions for ORS 426.005 to 426.390) to 426.223 (Retaking persons in custody of or committed to Oregon Health Authority) and 426.241 (Payment of care, custody and treatment costs) to 426.380 (Availability of writ of habeas corpus) and the rules of the Oregon Health Authority.

(4) With respect to objections to a reconsideration order under ORS 656.268 (Claim closure), a hearing on such objections shall not be granted unless a request for hearing is filed within 30 days after the copies of the reconsideration order were mailed to the parties.

(5) With respect to objection by a claimant to a notice of refusal to close a claim under ORS 656.268 (Claim closure), a hearing on the objection shall not be granted unless the request for hearing is filed within 60 days after copies of the notice of refusal to close were mailed to the parties.

(6) A hearing for failure to process or an allegation that the claim was processed incorrectly shall not be granted unless the request for hearing is filed within two years after the alleged action or inaction occurred.

(7) With respect to objection by a claimant to a notice of closure issued under ORS 656.206 (Permanent total disability), a hearing on the objection shall not be granted unless the request for hearing is filed within 60 days after the notice of closure was mailed to the claimant. [1965 c.285 §41a; 1969 c.206 §1; 1975 c.497 §4; 1983 c.819 §1; 1987 c.884 §14; 1990 c.2 §24; 1995 c.332 §39; 2005 c.461 §6; 2009 c.595 §1041]

Note: See notes under 656.202 (Compensation payable to subject worker in accordance with law in effect at time of injury).

See also annota­tions under ORS 656.262 (Processing of claims and payment of compensation) (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), modified45 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)

Law Review Cita­tions

32 WLR 217 (1996)

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)

1 Legislative Counsel Committee, CHAPTER 656—Workers’ Compensation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors656.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.