808-004-0590 Referral of Claim to Arbitrator or Contested Case Hearing or Removal to Court (1) If a hearing on a claim is conducted by the Office of Administrative Hearings: (a) The hearing shall be held as an arbitration under the rules in Division 8 of this chapter, unless a party requests that the hearing be held as a contested case hearing under subsection (b) of this section or files the dispute in court under section (2) of this rule. (b) Except as provided in sections (2) and (6) of this rule, the hearing shall be held as a contested case hearing under OAR 137-003-0501 to 137-003-0700 and the rules in division 9 of this chapter if: (A) A party to the claim makes a timely written request under section (4) of this rule that the claim be heard as a contested case; or (B) The agency requests under sections (4) and (6) of this rule that the claim be heard as a contested case. (2) Subject to section (3) of this rule, a claim shall be decided in court if: (a) The claimant files a complaint in court that alleges the elements of the claim in the complaint; or (b) The respondent files a complaint in court for damages, a complaint for declaratory judgment, or another complaint that arises from the contract or work that is the subject of the claim and that allows the claimant to file a response alleging the elements of the claim.; or (c) The Board requires the claimant to move the claim to a court of competent jurisdiction, due the nature and complexity of the claim. (3) A copy of a complaint filed under section (2) of this rule must be received by the agency or the Office of Administrative Hearings no later than 30 days after the Office of Administrative Hearings sends the first notice that an arbitration or contested case hearing is scheduled. Failure to deliver the copy of the complaint within the time limitation in this rule constitutes waiver of the right to have the claim decided in court and consent to the hearing being held as binding arbitration or a contested case hearing under section (1) of this rule. Delivery shall be either to the agency or the Office of Administrative Hearings as required by OAR 137-003-0520 or 808-010-0085, whichever is applicable. (4) A request that a claim be heard as a contested case filed under section (1)(b) of this rule is subject to the following: (a) The request by a party or the agency must be in writing and received by the agency or the Office of Administrative Hearings no later than 30 days after the Office of Administrative Hearings sends the first notice that an arbitration is scheduled. Delivery shall be either to the agency or the Office of Administrative Hearings as required by OAR 137-003-0520 or 808-008-0085, whichever is applicable. (b) A referral of a claim to the Office of Administrative Hearings by the agency for a contested case hearing shall be deemed a request that the claim be heard as a contested case under section (1)(b) of this rule. (c) A party or the agency may not withdraw a request made under this section without the written consent of the agency and all parties to the claim. (5) Failure to deliver a timely written request for a contested case hearing under sections (1)(b) and (4) of this rule or a copy of a filed complaint under sections(2) and (3) of this rule constitutes consent to the hearing on the claim being held as binding arbitration through the Office of Administrative Hearings under section (1)(a) of this rule. (6) The agency may request under section (1)(b)(B) of this rule that a hearing be held as a contested case hearing if: (a) The agency's jurisdiction to decide the claim under ORS 671.690 to 671.710 is at issue; or (b) The agency determines that the agency has an interest in interpreting the rules and statutes that apply to the claim. Statutory/Other Authority: ORS 670.310 & 671.703 Statutes/Other Implemented: ORS 671.703 History: LCB 6-2016, f. & cert. ef. 5-23-16 LCB 6-2003, f. & cert. ef. 10-1-03 LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03