Boydston v. Liberty Northwest Ins. Corp. , 166 Or. App. 336 ( 2000 )

LANDAU, P. J.,

dissenting.

ORS 656.268(6)(d) (1995) provided that reconsideration of a determination order “shall be completed within 18 working days from the date of receipt of the request therefor * * (Emphasis added.) The Workers’ Compensation Board concluded that the statute means what it says, namely, that reconsideration must be finished by the 18-day deadline. The majority concludes that “shall be completed within 18 days” means something else. According to the majority, the statute means only that an order on reconsideration must be issued within 18 days and that, notwithstanding the 18-day completion language in the statute, the Department of Consumer and Business Services is entitled to withdraw such an order and take an undefined amount of time to consider revising it. In my view, the Board was correct. “Shall be completed” means “shall be completed,” and the majority errs in concluding otherwise.

As the majority correctly notes, although administrative agencies to whom the legislature has delegated decision-making authority obtain implicit authority to withdraw and reconsider their decisions, that implicit authority is subject to express legislative limitation. See generally SAIF v. Fisher, 100 Or App 288, 291, 785 P2d 1082 (1990). The question in this case is whether such express legislative limitation exists. In my view it does.

ORS 656.268(6)(d) (1995) provided:

“Reconsideration shall be completed within 18 working days from the date of receipt of the request therefor and shall be performed by a special evaluation appellate unit within the department. The deadline of 18 working days may be postponed by an additional 60 calendar days if within the 18 working days the department mails notice of review by a medical arbiter. If an order on reconsideration has not been mailed on or before 18 working days from the date of the receipt of the request for reconsideration, or within 18 working days plus the additional 60 calendar days where a notice for medical arbiter review was timely mailed, reconsideration shall be deemed denied and any further proceedings shall occur as though an order on reconsideration affirming the notice of closure or the determination order was mailed on the date the order was due to issue.”

(Emphasis added.) The ordinary meaning of “shall be completed” seems straightforward enough. “Completed” usually means “brought to an end or a final or intended condition * * * CONCLUDED * * * [brought] to an end often into or as if into a finished or perfected state.” Webster’s Third New Int’l Dictionary, 465 (unabridged ed 1993). That means that, under ORS 656.268(6)(d) (1995) reconsideration must be “brought to an end or a final intended condition” and “concluded” within 18 days. Moreover, the statute speaks not merely of a decision or an opinion issuing within 18 days, but rather the completion of “[reconsideration,” that is, the entire reconsideration process.

What is more, the statute makes clear that, if the Department does not act within the prescribed 18-day period, reconsideration will be “deemed denied * * * as though an order on reconsideration affirming the notice of closure or the determination order” had been timely made. ORS 656.268(6)(d) (1995) (emphasis added). Thus, the legislature has ensured that, one way or the other, by the 18th day after the filing of a request for reconsideration, a final, completed decision will have been made — either by the Department or by operation of law.

The “deemed denied” provision is particularly important, it seems to me. The cases make clear that the abatement and withdrawal of an order on reconsideration has the effect of “nullifying” the decision. Lyday v. Liberty Northwest Ins. Corp., 115 Or App 668, 671, 839 P2d 756 (1992). If that is so, then the withdrawal of an order on reconsideration issued within the 18-day period has the effect of nullifying the timely decision and automatically triggering the denial of reconsideration by operation of law, there having been no decision rendered within the 18-day period. Thus, the authority of the Department to abate and withdraw a decision simply cannot be reconciled with the language of ORS 656.268(6)(d) (1995).

The majority nevertheless concludes that the statute is not so clear in imposing an 18-day deadline for concluding the reconsideration process. It does so for two reasons, neither of which I find persuasive. First, the majority concludes that “completion” is indistinguishable from mere “issuance” of a decision. According to the majority, the command that reconsideration be “completed” within 18 days is akin to the statutory command at issue in Lyday, which required the mere “issuance” of a decision by a certain date and which we held did not preclude withdrawal and reconsideration. The majority’s reasoning, however, neglects to take into account the phrasing of the statute at issue in this case, which refers to the conclusion of an entire process, not merely to the issuance of a single decision.

Second, the majority reasons that the 18-day completion date cannot be treated as “absolute,” because the statute provides the Department with the authority to extend the deadline for 60 days to obtain additional medical information or to refer the case to a medical arbiter. ORS 656.268(6)(b), (d) (1995). Neither exception applies to this case, however. The fact that the legislature- provided the Department with the authority to extend the deadline in some enumerated circumstances does not implicitly grant license to the Department to extend the deadline in other circumstances not covered by the exceptions detailed in the statute.

Moreover, the majority’s reasoning fails to consider that, even in cases in which the enumerated exceptions apply, the Department’s decision to extend the deadline itself must be made within the 18-day deadline, by virtue of the “deemed denied” language of ORS 656.268(6)(d) (1995).¹ Either way, an affirmative decision must be made within the 18-day period either resolving the request for reconsideration or postponing resolution on a determination that a more involved deliberation process is warranted in the particular case. If neither of those determinations is made within 18 days, the reconsideration is deemed denied by operation of law. The legislature’s intention that the reconsideration proc- ■ ess be speedily concluded hardly could be clearer.

In that regard, the majority’s reading of ORS 656.268(6)(d) (1995) is problematic for an additional reason. If the Department has the authority to withdraw a reconsideration order that was issued within the 18-day period, how long does it have to reconsider the order? If I understand the majority’s opinion correctly, there is no limit to the time that the Department could take to reconsider such an order. I cannot reconcile such an open-ended reconsideration process with the language of the statute, which so clearly evinces the legislature’s concern for timely resolution of reconsideration requests.

I respectfully dissent.

1 In fact, ORS 656.268(6)(d) (1995) makes clear that, apart from the “deemed denied” provision, there is an express requirement that a 60-day extension to refer a matter to a medical arbiter depends on the mailing of notice of the extension “on or before 18 working days from the date the reconsideration proceeding begins.”