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137 Or. App. 95

Guardado v. J. R. Simplot Co.

Court of Appeals of Oregon

Decided September 27, 1995

Court of Appeals of Oregon · decided 1995-09-27

Applies OR 656 § 656.268

Decided 1995-09-27

RIGGS, P. J.,

¶1dissenting.

¶2I disagree with the majority’s holding that claimant is entitled to a second reconsideration of the determination order closing her claim. Claimant was notified of employer’s request for reconsideration and given an opportunity to participate in the reconsideration process by submitting additional medical évidence. She was examined by a medical arbiter. The Appellate Review Unit issued its order on reconsideration affirming the determination order in all respects, and that put the case on track for the next level of review, a hearing. The order on reconsideration superseded the determination order. At a hearing, the referee would have reviewed the order on reconsideration, not the original determination *101order. Once the determination order had been reconsidered, a subsequent request for reconsideration of the same determination order was misdirected. I cannot accept the majority’s view that the legislature intended that each party is entitled to a separate reconsideration of the same determination order.

¶3My view that there is intended to be only one reconsideration process is supported by the text and context of the statute. At the relevant time, ORS 656.268(5) provided that,

“[a]t the reconsideration proceeding, the worker or the insurer or self-insured employer may correct information in the record that is erroneous and may submit any medical evidence that should have been but was not submitted by the physician serving as the attending physician at the time of closure.”

¶4The opportunity to participate in the reconsideration process is bilateral. Even a party not seeking reconsideration is entitled to raise issues before the Appellate Review Unit. It approaches absurdity to provide, on the one hand, that all parties may participate in a single reconsideration process, but to permit, on the other hand, that each party seek reconsideration separately. This is especially true in the light of the legislature’s apparent objective in providing reconsideration at all: the simplification of the review process. Multiple reconsiderations would only complicate, not simplify, that process. For example, when multiple orders on reconsideration have been issued on multiple requests for reconsideration, which of the many orders must the referee review if a request for hearing is filed?

¶5For the reasons expressed, I think that the majority is wrong, and I therefore dissent.

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