The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 







DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

WORKERS' COMPENSATION BOARD









 

DIVISION 7
EVIDENCE — HEARINGS

438-007-0005
Medical and Vocational and Other Documentary Evidence
(1) To avoid unnecessary delay and expense
medical evidence should be presented in the form of written reports and should include:
(a) History of the injury
or disease;
(b) Pertinent medical history;
(c) Present complaints;
(d) All sources of history
and complaints;
(e) Date of examination;
(f) Findings on examination;
(g) Impairment of physical
or mental function including loss of reserve capacity;
(h) Restrictions of activities,
such as lifting, bending, twisting, sitting, standing and repetitive use;
(i) Cause of the impairment
and opinion whether the impairment is all or in part work related;
(j) Medical treatment indicated;
(k) Likelihood of permanent
impairment and opinion whether the condition is likely to change; and
(l) The reason for the opinion.
(2) The insurer or self-insured
employer may subpoena the claimant's attending or consulting physician(s) and vocational
expert(s) for cross-examination. Medical, surgical, hospital and vocational reports
offered by the insurer or self-insured employer will also be accepted as prima facie
evidence provided the insurer or self-insured employer agrees to produce the medical
and vocational expert(s) for cross-examination upon request of the claimant. The
reports of any medical or vocational expert who has refused to make herself or himself
available for cross-examination shall be excluded from the record unless good cause
is shown why such evidence should be received. The cost of cross-examination of
any medical or vocational expert(s) under this section shall be paid by the insurer
or self-insured employer.
(3) To avoid unnecessary
cost and delay, the Board encourages the use of written interrogatories or depositions
to secure medical or vocational expert testimony.
(4) The Administrative Law
Judge may appoint a medical or vocational expert to examine the claimant and to
file a report with the Administrative Law Judge. The parties may also agree in advance
to be bound by such expert's findings. The cost of examination and reports under
this rule shall be paid by the insurer.
Stat. Auth.: ORS 656.307, 656.388, 656.593
& 656.726(4)
Stats. Implemented: ORS 656.287
& 656.310(2)
Hist.: WCB 1-1984, f. 4-5-84,
ef. 5-1-84; WCB 1-1987, f. 3-4-87, ef. 4-15-87; WCD 2-1987(Temp), f. 4-13-87, ef.
4-15-87; WCB 4-1987, f. 11-6-87, ef. 11-16-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88;
WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14
438-007-0010
Competency of Vocational Experts
Vocational reports and testimony are admissible as expert opinion evidence if the Administrative Law Judge finds the author or witness to be qualified as an expert or if the parties stipulate to the author's or witness' qualifications as an expert in vocational assistance matters.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)

Stats. Implemented: ORS 656.287

Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-007-0015
Entitlement
to Claims Information — Disclosure Requirements
(1) With respect
to a claim for workers' compensation benefits and as used in this section, references
to the insurer and the claimant include persons acting on their behalf, and references
to the insurer include the self-insured employer, claims processing agents and assigned
claims processing agents for non-complying employers.
(2) Documents
pertaining to claims are obtained by mailing or delivering a copy of the Request
for Hearing, or a written demand accompanied by an attorney retention agreement
or medical information release, to the insurer. Within 15 days of said mailing or
delivering, the insurer shall furnish the claimant and other insurers, without cost,
originals or legible copies of all medical and vocational reports and other documents
pertaining to the claim(s) as specified below.
(3) Upon
written demand by the insurer, the claimant shall within 15 days of the mailing
or delivering of the demand, furnish to the insurer, without cost, originals or
legible copies of all medical and vocational reports and other documents pertaining
to the claim(s) as specified below, which the claimant did not receive from the
insurer (or self-insured employer) making the demand. In cases involving multiple
insurers, an insurer shall seek discovery in accordance with section (9) of this
rule.
(4) Documents
acquired after the initial exchanges shall be provided to the insurer(s) and the
claimant within seven days after the disclosing party's receipt of the documents.
(5) For the
purpose of this rule, "documents pertaining to the claim(s)" or any variation thereof
means documents and recordings, whether written or electronic or in any other form,
which consist of the following items applicable to the workers' compensation claim:
(a) Medical
and vocational reports, including any correspondence to and from the medical and
vocational experts who provide the reports or who agree to testify on behalf of
the party sending correspondence;
(b) Official
forms and notices required by ORS Chapter 656, the Workers' Compensation Division
or the Workers' Compensation Board, as they relate to the claim(s);
(c) Investigative
statements, including a party's statement, and investigative summaries;
(d) Correspondence
to and from the Workers' Compensation Division and the Workers' Compensation Board;
and
(e) Upon
specific request, records of all compensation paid, payroll records, records or
statements of wages earned by the claimant, and copies of bills from medical and
vocational service providers rendering treatment or services to the claimant.
(6) After
the disclosure required by this rule, either the claimant or the insurer may request
further specific discovery of other factual documents relevant and material to an
issue raised by the Request for Hearing or the Response thereto, or any other issue
which thereafter arises and is subject to the jurisdiction of the Workers' Compensation
Board.
(7) Notwithstanding
any other provision of this section, the following documents pertaining to the claim(s)
are not discoverable:
(a) Material
protected under the attorney/client privilege as defined in Oregon Rules of Evidence
ORS 40.225 Rule 503;
(b) Material
which is the work product of any attorney, except that correspondence and any inclusions
sent to a medical or vocational expert who writes a report that is otherwise subject
to disclosure under these rules or who agrees to testify at the request of the corresponding
party shall be discoverable under subsection (5)(a) of this rule;
(c) Material
reflecting the mental impressions, case value or merit, plans or thought processes
of the claimant or insurer;
(d) Material
protected by ORS 656.260; and
(e) Material
protected from disclosure under OAR 438-007-0017 (impeachment).
(8) It is
the express policy of the Board to promote the full and complete discovery of all
relevant facts and expert opinion bearing on a claim being litigated before the
Hearings Division, consistent with the right of each party to due process of law.
Failure to comply with this rule, if found to be unreasonable or unjustified, may
result in the imposition of penalties and attorney fees, exclusion of evidence,
continuance of a hearing (subject to OAR 438-006-0091), and/or dismissal of a request
for hearing.
(9) When
a new party is joined into existing litigation, the disclosure of discoverable documents
and the exhibit list shall be made available to the new party by the insurer with
the lowest WCB case number. This disclosure shall be made as soon as reasonable
but no later than 15 days from the insurer's receipt of notice of the joinder of
the new party.
(10) Any
dispute under this rule regarding whether something is discoverable, in whole or
in part, will be resolved by the assigned Administrative Law Judge or the designee
of the Presiding Administrative Law Judge.
Stat. Auth.: ORS
656.726(5)

Stats. Implemented:
ORS 656.307 & 656.726(5)

Hist.: WCB
1-1984, f. 4-5-84, ef. 5-1-84; Suspended by WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87;
WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1995,
f. 11-13-95, cert. ef. 1-1-96; WCB 2-1997, f. 12-12-97, cert. ef. 3-1-98; WCB 1-2003,
f. 2-21-03, cert. ef. 5-1-03; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12
438-007-0016
Disclosure of Expert Witness Required
Within the times provided for the initial exchanges of exhibits and indexes under OAR 438-007-0018 each party shall disclose to all other parties the identity of each expert witness the party will call to testify at the hearing. A statement by a party that the party "reserves the right," or similar language, to call as a witness any expert whose opinion has been included in the documents filed in the case is not compliance with this rule. At the hearing the Administrative Law Judge may, in his or her discretion, allow the testimony of expert witnesses not disclosed as required by this rule. In the exercise of this discretion, the Administrative Law Judge shall determine whether material prejudice has resulted from the timing of the disclosure and, if so, whether there is good cause for the failure to timely disclose that outweighs the prejudice to the other party or parties.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)

Stats. Implemented: ORS 656.726(4)

Hist.: WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89
438-007-0017
Impeachment Evidence
(1) Impeachment evidence is material which:
(a) Attacks the capacity of the witness to perceive, recall or recount;
(b) Tends to establish that the witness has a character for untruthfulness;
(c) Establishes prior convictions for felonies or crimes involving false statement or dishonesty;
(d) Tends to establish bias;
(e) Reveals a prior material inconsistent statement;
(f) Reveals material contradictions in statements made by the witness;
(g) Attacks the expertise of a witness through learned treatises.
(2) Impeachment evidence consisting of medical or vocational reports not used during the course of the hearing must be provided to any opposing party at the conclusion of the presentation of evidence and before closing arguments are presented. Any other withheld impeachment evidence is not subject to disclosure.
(3) Impeachment evidence shall not be considered by the Administrative Law Judge as substantive evidence, unless the opposing party offers any withheld evidence as substantive evidence.
Stat. Auth.: ORS 656.726(4) & ORS 654.025(2)

Stats. Implemented: ORS 656.726(4)

Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-1997, f. 12-12-97, cert. ef. 3-1-98
438-007-0018
Exchange and Admission of Exhibits at Hearing
(1) Not later than 28 days before the
hearing, the insurer or self-insured employer shall provide the claimant and other
insurer or self-insured employer legible copies of all documents that are relevant
and material to the matters in dispute in the hearing, together with an index. The
index shall include the document numbers, description of each document, author,
number of pages and date of the document. The documents shall be arranged in chronological
order and numbered, in Arabic numerals, in the lower right corner of each page,
beginning with the document of earliest date. The numbers shall be preceded by the
designation "Ex," and pagination of multiple-page documents shall be designated
by a hyphen followed by the page number. For example, page two of document two shall
be designated "Ex 2-2." A physician's chart notes constitute a multi-page document
to the extent that the date of each individual chart note is subsequent to the date
of the preceding exhibit and is earlier than the date of the next exhibit. However,
for deposition transcripts, only the cover page of the deposition need be numbered;
i.e., "Ex. 3."
(2) Not less than 14 days
before the hearing, or within seven days of receipt of the insurer document index
and documents, whichever is later, the claimant shall provide the insurer(s) or
self-insured employer(s) legible copies of any additional documents that are relevant
and material to the matters in dispute in the hearing. The additional documents
shall be marked and accompanied by a supplemental document index, prepared in the
same manner as the insurer documents and index and numbered to coincide in chronological
order with the insurer's documents. Letter subdesignations shall be used to ensure
chronological numbering. For example, a document which is chronologically between
documents six and seven of the insurer documents shall be designated "Ex 6A."
(3) Before or at the hearing,
the parties shall delete from their indexes and packets of documents those documents
which are cumulative, or which no party can in good faith represent to be relevant
and material to the issues, and the revised indexes and packets of documents shall
be submitted to the Administrative Law Judge. For compliance with this rule, it
is sufficient for the parties to mark neatly through the index description of the
documents not being offered in evidence with ink, and to remove the corresponding
documents from the packets submitted to the Administrative Law Judge.
(4) Filing of the documents
described in section (1) shall not establish that:
(a) The insurer or self-insured
employer is the sponsor for each of these documents for purposes of admission into
the evidentiary record; or
(b) The claimant is automatically
entitled to cross-examine the author of any document filed by the insurer or self-insured
employer under section (1).
(5) Subject to ORS 656.287(l),
at the hearing the Administrative Law Judge may in his or her discretion allow admission
of additional medical reports or other documentary evidence not disclosed as required
by OAR 438-007-0015. In the exercise of this discretion, the Administrative Law
Judge shall determine whether material prejudice has resulted from the timing of
the disclosure and, if so, whether there is good cause for the failure to timely
disclose that outweighs any prejudice to the other party or parties. Following a
finding of material prejudice, the Administrative Law Judge may exclude a document
or continue the hearing for such action as is appropriate to cure the material prejudice
caused by the late disclosure of the document.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87,
ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 3-2001, f. 11-14-01, cert.
ef. 1-1-02; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 2-2013, f. 12-10-13, cert.
ef. 4-1-14
438-007-0019
Testimony at Hearings
All testimony at the hearing shall be upon oath or affirmation administered by the Administrative Law Judge.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)

Stats. Implemented: ORS 656.726(2)(b)

Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-007-0020
Subpoenas; Witness Fees
(1) Whenever a party has requested a
hearing, a subpoena may be issued to compel:
(a) Attendance and testimony
at a hearing; or
(b)The production of documentary
or physical evidence under a witness' control at or before a hearing.
(2) Subpoenas may be issued
by an Administrative Law Judge or the attorney of record of a party. Upon request,
the Hearings Division shall provide blank subpoenas.
(3) Subpoenas issued on behalf
of a party may be served by the party or the party's representative. Service may
be made in person or by certified mail or other mail that provides for a receipt
signed by the recipient.
(4) Subpoenas shall be served
far enough in advance of an appearance to allow the witness or party a reasonable
time to comply with the subpoena or to file an objection.
(5) Witness fees and mileage
shall be provided at the time the subpoena is served, in the amount provided for
in civil actions.
(6) "Individually identifiable
health information," as defined in ORCP 55(H)(1)(a), may be obtained through a subpoena
under the following procedures:
(a) At the time a subpoena
for individually identifiable health information is issued, the party issuing the
subpoena must serve a copy of the subpoena to the party or the attorney for the
party whose individually identifiable health information is being subpoenaed. Such
service shall be as provided in section (3) above.
(b) The subpoena shall provide
notice to the person or the person's attorney, if represented, whose individually
identifiable health information is being subpoenaed of the extent of the information
being sought, and shall describe the procedure for submitting a timely objection
to the disclosure of such information. The subpoena shall include the following
in prominent or boldface type:
"IF YOU OPPOSE THE DISCLOSURE OF THE INFORMATION
INCLUDED IN THIS SUBPOENA, YOU MUST FILE A WRITTEN OBJECTION, WITH THE WORKERS'
COMPENSATION BOARD, 2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1280. YOUR
OBJECTION MUST BE FILED WITHIN SEVEN (7) CALENDAR DAYS OF THE MAILING DATE OF THIS
NOTICE, AND MUST STATE THAT YOU OBJECT TO THE RELEASE OF THE INDIVIDUALLY IDENTIFIABLE
HEALTH INFORMATION, THE BASIS FOR YOUR OBJECTION, YOUR ADDRESS, AND THE DATE OF
YOUR INJURY IF YOU KNOW THE DATE. A COPY OF YOUR LETTER MUST ALSO BE PROVIDED SIMULTANEOUSLY
TO THE RECIPIENT OF THE SUBPOENA, AS WELL AS TO THE PARTY ISSUING THE SUBPOENA.
IF YOU HAVE QUESTIONS YOU MAY CALL THE WORKERS' COMPENSATION BOARD AT (503) 378-3308
OR TOLL-FREE AT 1-877-311-8061, OR THE OMBUDSMAN FOR INJURED WORKERS TOLL-FREE AT
1-800-927-1271."
(c) The subpoena must also contain the
following certification: "I certify that I mailed a copy of this subpoena to [the
person or the person's attorney, if represented] at [address] on [date] by certified
mail return receipt requested."
(d) "File," as used in this
section, has the same meaning as OAR 438-005-0046.
(e) If the person whose individually
identifiable health information is being subpoenaed does not timely object or waives
any objection, the recipient of the subpoena shall comply with the subpoena.
(f) If the recipient of the
subpoena receives a timely objection from the party whose individually identifiable
health information is being subpoenaed, the recipient shall comply with the subpoena
by mailing the information sought to the Workers' Compensation Board, at 2601 25TH
STREET SE, SUITE 150, SALEM OREGON 97302-1280.
(g) If the person whose individually
identifiable health information is being subpoenaed timely objects, an expedited
pre-hearing conference will be conducted under the provisions of ORS 656.283.
(h) A party who receives
information under this section is required to disclose that information under OAR
438-007-0015.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.283(8),
656.724(4) & 656.726(2)(c)
Hist.: WCB 1-1984, f. 4-5-84,
ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-2003, f. 2-21-03, cert. ef.
5-1-03; WCB 1-2005, f. 6-29-05, cert. ef. 9-1-05; WCB 2-2013, f. 12-10-13, cert.
ef. 4-1-14
438-007-0022
Manner of Taking Testimony of Lay Witnesses
(1) Testimony of lay witnesses shall be taken by personal appearance of the witness before the Administrative Law Judge at the hearing.
(2) When a lay witness is unable to attend the hearing due to extraordinary circumstances beyond the control of the party offering the testimony and the testimony of the witness cannot be taken by deposition, the Administrative Law Judge may allow testimony to be taken in any manner that will afford substantial justice and insure a complete and accurate record of all examination and testimony.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)

Stats. Implemented: ORS 656.726(2)(d)

Hist.: WCB 6-1987(Temp), f. & ef. 12-18-87; WCB 1-1988, f. & ef. 6-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
438-007-0024
Offers of Proof
Whenever the Administrative Law Judge excludes a document or the testimony of a witness, the party adversely affected may make an offer of proof for the record in a form determined by the Administrative Law Judge.
Stat. Auth.: ORS 656.726(5)

Stats. Implemented: ORS 656.726(5)

Hist.: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03
438-007-0023
Order of Presentation of Evidence and Argument at Hearing
The party bearing the burden of proof on an issue in a hearing has the right of first and last presentation of evidence and argument on the issue.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)

Stats. Implemented: ORS 656.726(2)(d)

Hist.: WCB 2-1989, f. 3-3-89, ef. 4-1-89
438-007-0025
Reconsideration
(1) The Administrative Law Judge may reopen the record and reconsider his or her decision before a request for review is filed or, if none is filed, before the time for requesting review expires. Reconsideration may be upon the Administrative Law Judge's own motion or upon a motion by a party showing error, omission, misconstruction of an applicable statute or the discovery of new material evidence.
(2) A motion to reconsider shall be served on the opposite parties by the movant and, if based on newly discovered evidence, shall state;
(a) The nature of the new evidence; and
(b) An explanation why the evidence could not reasonably have been discovered and produced at the hearing.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)

Stats. Implemented: ORS 656.283(7) & ORS 656.726(4)

Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-007-0027
Hearing for Purpose of Own Motion Recommendation
(1) Where the Administrative Law Judge determines that an issue(s) raised by a party is within the Board's Own Motion jurisdiction, the Administrative Law Judge may proceed with a fact-finding hearing or other proceeding that the Administrative Law Judge deems achieves substantial justice (without notifying or requesting permission from the Board prior to going forward with such a fact-finding hearing or other proceeding) for the purpose of providing an unappealable recommendation to the Board regarding the issue(s) within the Board's Own Motion jurisdiction.
(2) If the Administrative Law Judge chooses to proceed with a fact-finding hearing or other proceeding as described in section (1), the Administrative Law Judge shall:
(a) Make findings of fact and conclusions of law regarding the Own Motion issue(s) within the time required to issue any appealable order in the related case issued regarding matters within the Administrative Law Judge's jurisdiction; and
(b) Forward to the Board a separate, unappealable recommendation with respect to the Own Motion issue(s) and a copy of any appealable order in the related case issued regarding matters within the Administrative Law Judge's jurisdiction.
Stat. Auth.: ORS 656.726(5)

Stats. Implemented: ORS 656.726(5)

Hist.: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03
438-007-0030
Unofficial Recording of Hearing Prohibited
An Administrative Law Judge shall prohibit broadcasting, televising, sound or video recording and the taking of photographs within the hearing room and of events in the hearing room from outside the hearing room while the hearing is in session and during recesses between sessions, except sound recording of a hearing by the Administrative Law Judge or an official hearing reporter for the purpose of making a record of the hearing. To the extent the Administrative Law Judge deems necessary, the same prohibitions may be applied to areas immediately adjacent to the hearing room where the activities may interrupt or interfere with entry to or exit from the hearing room, distract or disturb proceedings within the hearing room or otherwise interfere with the conduct of the hearing.
Stat. Auth.: ORS 656.726(4)

Stats. Implemented: ORS 656.283(7) & ORS 656.726(4)

Hist.: WCB 1-1988, f. & ef. 6-1-88
438-007-0040
Electronic Documents
(1) If any party, in the regular course of the party's business or activity, has kept or recorded any memorandum, writing, entry, print, reproduction or a combination thereof, of any act, transaction, occurrence or event, and in the regular course of the party's business or activity has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, optical imaging or other process that accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself whether the original is in existence or not at the time a party introduces into evidence such reproduction. The introduction of a reproduced record, enlargement or facsimile does not preclude admission of the original.
(2) If a party introduces into evidence a reproduction described in subsection (1), the exhibit index described in OAR 438-007-0018 will include the following certification: "The attached exhibits contain reproductions as described in 438-007-0040. I hereby certify that the reproductions were created in the regular course of a party's business or activity."
Stat. Auth.: ORS 656.726(5)

Stats. Implemented: ORS 656.726(5) & ORS 656.283(7)

Hist.: WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use