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JRP Constr. Enters., Inc. v. Dep't of Consumer Bus. Servs.

Court of Appeals of Oregon

February 25, 2015

JRP CONSTRUCTION ENTERPRISES, INC., Petitioner,
v.
DEPARTMENT OF CONSUMER BUSINESS SERVICES and Gerardo L. Herrera, Respondents

Argued and Submitted January 29, 2015

Department of Consumer and Business Services. 1200032H.

Jerald P. Keene argued the cause for petitioner. With him on the briefs was Oregon Workers' Compensation Institute, LLC.

Edward J. Harri argued the cause for respondents. With him on the brief was Philip H. Garrow.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

Page 1291

[269 Or.App. 373] LAGESEN, J.

Petitioner JRP Construction Enterprises, Inc. (" insurer" )[1] petitions for review of a final order[2] of the Director of the Department of Consumer and Business Services (the director) in this workers' compensation medical services dispute. In the final order, the director dismissed as " moot" petitioner's request for " director review" under ORS 656.704(2)(a) and OAR 436-001-0246 of the order of an Administrative Law Judge (ALJ) that found that insurer incorrectly denied medical services to claimant, and awarded attorney fees to claimant based on that determination. For the reasons that follow, we reverse the final order and remand to the director for reconsideration.

This dispute arose after claimant requested preauthorization from insurer to obtain certain treatments for his compensable injury. Insurer declined to grant preauthorization based on its view that it was not required to provide preauthorization, but that it was permitted to wait to process claimant's claim for medical services if and when claimant obtained those services and submitted a claim for reimbursement. Claimant sought review of insurer's decision not to grant preauthorization before the Medical Resolution Team of the Workers' Compensation Division. On review, the medical reviewer found that insurer's decision not to grant preauthorization was a denial of medical services to which claimant was entitled. The medical reviewer found further that claimant was the prevailing party and awarded attorney fees to claimant on that basis.

Insurer then requested a hearing on the matter before an ALJ under ORS 656.704(2). Following the hearing, the ALJ affirmed the decision of the medical reviewer, finding that insurer had incorrectly denied medical services to claimant. In so finding, the ALJ rejected insurer's argument that nothing in the applicable statutes or rules required it to preauthorize the particular medical services [269 Or.App. 374] requested by claimant or precluded it from waiting to process any claim for those medical services until after claimant obtained them and submitted a claim for them. The ALJ further determined that claimant, having established that insurer denied a claim for medical services, was entitled to additional attorney fees in connection with the hearing before the ALJ.

Thereafter, insurer sought director review of the ALJ's decision under ORS 656.704(2)(a).

Page 1292

Before the director, insurer reiterated the arguments that it presented to the ALJ: that it was under no legal obligation to preauthorize the particular medical services requested by claimant, and that its decision not to preauthorize the requested medical services was not the equivalent of the denial of a claim for medical services. Insurer requested the director to reverse the ALJ's order, including the award of attorney fees; insurer argued that there would be no basis for attorney fees if the director agreed that the denial of preauthorization was not the equivalent of the denial of a claim for medical services. While review was pending before the director, claimant obtained the medical services underlying the dispute and insurer paid for the expenses related to those services. At that point, the director, sua sponte, issued a final order dismissing the review proceeding. The order states, in full:

" This is a dispute in which the employer refused to pre-authorize an examination by a specific medical provider and refused to provide travel expenses to that exam prior to the travel. The parties now agree that the travel has already occurred, the examination has been performed, and the ...

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