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In re Compensation of French-Davis2/5/2003
etation of ORS 656.319(6), as well as the nature of claim processing delineated by other provisions of chapter 656, we conclude that the board erred when it held that claimant's two-year period began to run when her claim was accepted in December 1997. The two-year period must be triggered by some affirmative inaction, that is, by some failure to perform a particular, time-sensitive duty. For the reasons explained above, that action could not be sending a notice of acceptance.
A more logical solution, one that recognizes the fact that claim processing involves a potentially long-term sequence of steps leading to closure and that also conforms to the text of both ORS 656.319(6) and ORS 656.268, identifies the key event as claimant's request for closure. That event imposes an easily identifiable, discrete, time-sensitive obligation on the insurer: it had to respond within 10 days by issuing either a notice of closure or of refusal to close. ORS 656.268(5)(b). When those 10 days elapsed, insurer failed to perform its obligation. That failure constituted the inaction that began the two-year period specified in ORS 656.319(6).
Claimant's first request for closure occurred on October 26, 1998. Insurer had a duty to respond by November 5. ORS 656.268(5)(b). It failed to do so. That "failure to process" (i.e., failure to carry out one of the steps in the processing sequence) constituted the "alleged * * * inaction" that claimant sought to challenge at a hearing. ORS 656.319(6). Claimant had until November 5, 2000, to request a hearing. She did so on June 13, 2000. That request was timely, and the board erred in dismissing it.
Reversed and remanded.
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