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In re Medical Treatment Dispute of Keely

Court of Appeals of Oregon

September 6, 2018

In the Matter of the Medical Treatment Dispute of Athel D. Keely, Claimant.
v.
SAIF CORPORATION and Wayne Horton, Petitioners. ANGEL MEDFLIGHT WORLDWIDE AIR AMBULANCE SERVICE, dba Angel MedFlight, Respondent,

          Argued and submitted October 19, 2017

          Department of Consumer and Business Services 1500035H

          David L. Runner argued the cause and fled the briefs for petitioners.

          Alexander M. Naito argued the cause for respondent. Also on the brief were Christopher A. Rycewicz and Miller Nash Graham & Dunn LLP.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Petitioners SAIF and an injured worker challenge a final order of the Department of Consumer and Business Services in which the director concluded that respondent, a medical transportation company, had established good cause for its untimely fling of a request for hearing in a dispute over the reasonable cost of medical services. Petitioners contend that substantial evidence does not support the director's determination that respondent established "excusable neglect" for the late fling, see OAR 436-001-0019(7). Held: Substantial evidence did not support the director's final order because material gaps in the chronological record preclude a reasonable person from determining that respondent carried its burden to establish "excusable neglect."

         Reversed and remanded.

          [293 Or.App. 711] GARRETT, J.

         Petitioners challenge a final order of the Department of Consumer and Business Services (department) in which the director concluded that respondent, a medical transportation company, had established good cause for its untimely filing of a request for hearing. The director's order reversed and remanded an order of an administrative law judge (ALJ), concluding that respondent had not established good cause. On judicial review, petitioners contend that substantial evidence does not support the director's determination that respondent established "excusable neglect" for its late request for a hearing. We agree with petitioners, and reverse the order and remand for further proceedings.

         Our review is confined to the administrative record, ORS 183.482(7), and the following facts are not contested on review. This dispute arose from the medical transport of petitioner Horton, an injured worker, covered by petitioner SAIF. The worker, while traveling in New Mexico, developed a medical problem related to his compensable condition. He began traveling home to Oregon in his family's own vehicle, but his condition worsened during the trip, requiring hos-pitalization in Nevada. After treatment there, the worker requested transport to Oregon. The hospital requested bids from various medical transport providers, including respondent. Respondent gave a preliminary quote of $15, 000 for jet aircraft transportation. On September 30, 2014, SAIF indicated to respondent that it would authorize jet aircraft transportation if respondent could confirm a bid of approximately $15, 000.

         Respondent never replied to SAIF's request for a confirmed bid. The next day, respondent provided jet aircraft transportation to the worker. Respondent then billed SAIF for $277, 825.

         SAIF refused to pay the amount billed on the ground that the services and charges were inappropriate, unnecessary, unreasonable, and excessive. In February 2015, respondent requested administrative review by the Medical Resolution Team (MRT) of the department's Workers' Compensation Division (WCD). MRT reviewer Sheppard was assigned the case and began corresponding with SAIF's [293 Or.App. 712] attorney as well as one of respondent's attorneys identified in the record only as "Amanda."

         On April 13, 2015, Sheppard issued an administrative order determining that the amount billed by respondent was unreasonable and ordered SAIF to pay the "appropriate" amount of $19, 475. A copy of the April 13 order was mailed to respondent at its street address in Scottsdale, Arizona, which was later confirmed to be correct. That copy was not returned by the United States Postal Service as undeliverable or unclaimed. A separate copy of the order was mailed to a different attorney for respondent, Snider, at an incorrect address, and was returned as undeliverable.

         The April 13 order included a statement notifying respondent of its right to a hearing and of the requirement that such a request be ...


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