justicedao/ipfs_state_laws huggingface dataset:
438-082-0055 Representation by Counsel; Charging of Fee Prohibited (1) The Department shall be represented in all proceedings under these rules by the Department of Justice. (2) Any other interested party may be represented by an attorney who is member of the Oregon State Bar. (3) No applicant shall be charged any fee for any purpose, including legal representation, in any proceeding under these rules. (ORS 147.315.) Statutory/Other Authority: ORS 183.310 - 183.410, 147.155(5) & 656.726(4) Statutes/Other Implemented: ORS 147.155 & 656.726(4) History: WCB 3-1986, f. 8-28-86, ef. 9-1-86
438-085-0006 Scope; Authority (1) These rules (OAR 438-085-0006 to 438-085-0870) govern practice and procedure for all contested cases under the Act. (2) These rules are authorized by the Act and by ORS Chapters 656 and 183. (3) The model rules of procedure adopted by the Attorney General pursuant to ORS 183.341 shall not apply to contested cases under the Act. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025(2) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0010 Effective Date; Applicability These rules are effective March 1, 1998 and shall apply to all requests for hearing pending on or after that date. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 654.025(2) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 3-1989, f. 3-31-89, ef. 5-1-89
438-085-0017 Board Policy; Liberal Construction (1) It is the policy of the Board to provide for the prompt and fair disposition of contested cases, encourage settlements, formal and informal, consistent with the purposes of the Act, and provide an impartial forum for hearings on cases that cannot be resolved between the parties. (2) These rules shall be liberally construed to carry out the policy of the Board and the purposes of the Act. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025(2) & 654.003 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0021 Number For the purpose of these rules, the singular includes the plural and the plural includes the singular. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025(2) History: WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0111 Form and Content of Request for Hearing (1) A request for hearing does not have to be in any special form, but it must: (a) Identify the particular citation, notice or order that is appealed from, and the person to whom it was issued; (b) Specify each alleged violation, penalty, correction order, or other OR-OSHA action that is contested; (c) State the grounds upon which the request for hearing is based; and (d) Clearly indicate whether the requesting party wants to participate in OR-OSHA’s informal settlement process. (e) Clearly indicate whether the period of time fixed for correction of a serious violation is being contested. (2) A request for hearing should include the name, address and telephone number of the requesting party and of the party’s representative, if any. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025(2) & 654.078(1)(2) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0116 Where to File a Request for Hearing All requests for hearing shall be filed with the Department of Consumer and Business Services, and should be directed to the Oregon Occupational Safety and Health Division at 350 Winter St. NE, Room 430, Salem, Oregon 97310, or with any permanently staffed office of the Workers’ Compensation Board or OR-OSHA. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025(2) & 654.078(1) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 7-1987, f. 12-23-87, ef. 1-1-88 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0131 Computing Time Periods Time periods required or allowed by the Act or these rules shall be computed in calendar days. The first full day after the time begins to run is counted as the first day. If the last day is a Saturday, Sunday, or State holiday, the period runs until the end of the next business day. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025(2) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0141 Untimely Requests for Hearing (1) If OR-OSHA alleges that a request for hearing was not filed timely, the case shall promptly be transmitted to the Hearings Division for a determination of that issue. (2) If an Administrative Law Judge finds that a request for hearing was not filed timely, and that the Hearings Division lacks jurisdiction to grant a hearing on the merits of the case, the Administrative Law Judge shall issue an order dismissing the request for hearing. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 654.025 & 654.078(1)-(3) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98, Renumbered from 438-085-0216 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77
438-085-0200 Special Definitions For the purpose of mediations conducted by the Board, unless the context otherwise requires, the following definitions apply: (1) Mediation. A voluntary process for resolving disputes by which a mediator assists two or more parties to a controversy in reaching a mutually acceptable resolution. (2) Mediator. An Administrative Law Judge whose role is to assist the parties in resolving their dispute by mutual agreement. The mediator has no authority to decide the outcome of the controversy or to force settlement upon the parties. (3) Party. For purposes of OAR 438-085-0200 through 438-085-0260, “party” means any person identified in 438-085-0026(18) and any other person identified by the mediator as necessary to the mediation. Statutory/Other Authority: ORS 654.025(2) & 654.078 Statutes/Other Implemented: ORS 183.502 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98
438-085-0210 Mediator Qualifications (1) A mediator shall have completed at least 30 hours of basic mediation training and hold a certificate demonstrating such training. (2) Such training shall address the following areas as outlined in OAR 718-040-0040(3): (a) Active listening, empathy and validation; (b) Sensitivity to and awareness of cross-cultural issues; (c) Maintaining neutrality; (d) Identifying and reframing interests and issues; (e) Establishing trust and respect; (f) Using techniques to achieve agreement and settlement, including creating a climate conducive to resolution, identifying options, working toward agreement, and reaching consensus; (g) Shaping and writing agreements; and (h) Ethical standards for mediator conduct adopted by state and national organizations. Statutory/Other Authority: ORS 654.025(2) & 654.078 Statutes/Other Implemented: ORS 183.502 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98
438-085-0216 Untimely Appeals (1) If OR-OSHA alleges that an appeal was not timely filed, the case shall be referred to the Hearings Division to give the parties an opportunity for a hearing on that issue, upon the request of one or more parties. (2) If an Administrative Law Judge finds that an appeal was not timely filed, and that the Hearings Division lacks jurisdiction to grant a hearing on the merits of the case, the referee shall issue an order dismissing the appeal. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 654.025 & 654.078(1)-(3) History: WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77
438-085-0220 Standards of Mediator Conduct (1) Mediators have duties to the parties, to their profession, and to themselves. They shall be honest and unbiased, act in good faith, be diligent, and never seek to advance their own interests at the expense of the parties. (2) The mediator must maintain impartiality toward all parties. Impartiality means a commitment to serve all mediation parties as opposed to a single party. The mediator shall disclose to the parties any affiliations which the mediator may have with any participant and obtain all parties’ consent to proceed as mediator. (3) The mediator has an obligation to assure that all parties understand the nature of the mediation process, the procedures to be utilized, and the particular role of the mediator. Each party’s consent to proceed with mediation should be obtained early, prior to the beginning of substantive negotiations. (4) The mediator shall inform the parties of their rights to withdraw from mediation at any time and for any reason. If the mediator believes that the parties are unable or unwilling to participate effectively in the mediation process, the mediator should suspend or terminate the mediation. If the parties reach a final impasse, the mediator should not prolong unproductive discussions. Statutory/Other Authority: ORS 654.025(2) & 654.078 Statutes/Other Implemented: ORS 183.502 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98
438-085-0240 Standards of Conduct for Representatives and Parties (1) A party may attend a mediation personally or through a representative. (2) A party or its representative shall come to the mediation with authority to settle the issues, or bring with them or otherwise make available that person or those persons who have such authority. (3) By consenting to mediation, all parties and their representatives agree to bargain in good faith. Statutory/Other Authority: ORS 654.025(2) & 654.078 Statutes/Other Implemented: ORS 183.502 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98
438-085-0250 Requests for Mediation (1) The parties shall notify the assigned Administrative Law Judge of their desire to mediate their controversy. The parties may select a mediator from an approved list provided by the Hearings Division. If the parties do not indicate a choice of mediator or cannot agree, a mediator may be selected by the assigned Administrative Law Judge. (2) Persons who are not parties to a mediation may be included in mediation discussions with the consent of the mediator and the parties. Statutory/Other Authority: ORS 654.025(2) & 654.078 Statutes/Other Implemented: ORS 183.502 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98
438-085-0260 Mediation Agreements (1) Any resolution involving matters arising under the Act shall be reduced to writing. (2) The parties may, by agreement, resolve issues that arise outside the scope of the Act and reduce those agreements to writing. Such agreements, however, shall be separate from any agreement resolving issues under the Act and shall not be enforceable by the Workers’ Compensation Board. (3) The parties shall advise the mediator in writing when a request for hearing has been resolved by an executed mediation agreement. Statutory/Other Authority: ORS 654.025(2) & 654.078 Statutes/Other Implemented: ORS 183.502 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98
438-085-0305 Transmittal of Documents to Hearings Division (1) The Board will defer action on a Request for Hearing for 90 days unless: (a) There is a withdrawal of the citation or Request for Hearing; (b) A settlement is reached; (c) There is an express waiver of participation in the OR-OSHA informal settlement conference process; (d) An expedited hearing is required by ORS 654.078(6); or (e) There is a motion or matter requiring action by an Administrative Law Judge. (2) If, during the deferral period, the case is settled or the citation or request for hearing is withdrawn, or there is any other reason the case requires action by an Administrative Law Judge, OR-OSHA shall immediately transmit to the Hearings Division those documents necessary to allow the Administrative Law Judge to dismiss the request for hearing and close the case, or take whatever other action is required. (3) At the expiration of 90 days or in all other cases described in section (1) of this rule, OR-OSHA shall transmit to the Hearings Division the following documents: (a) A statement of the reason for the transmittal; (b) A list of the documents transmitted; (c) The original request for hearing; (d) A copy of the contested citation, notice or order; (e) Any other document pertinent to the reason for the transmittal. (4) OR-OSHA shall mail a copy of the notice of transmittal and list of transmitted documents to all parties. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 654.025 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 3-1989, f. 3-31-89, ef. 5-1-89
438-085-0306 Hearings Division Response to Request For Hearing (1) When the Hearings Division receives a transmittal pursuant to OAR 438-085-0305, it shall caption and assign a docket number to the case. The case shall then be assigned to an Administrative Law Judge, who will thereafter be responsible for all case management, including all pre-hearing matters and the hearing itself. (2) After a case has been received by the Hearings Division and assigned to an Administrative Law Judge, the Hearings Division shall mail the parties an acknowledgment and notice of case assignment. (3) If the parties request Alternative Dispute Resolution assistance, the assigned Administrative Law Judge shall refer the case to the mediator requested by the parties, or selected by the assigned Administrative Law Judge if the parties so request. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0406 Necessary Parties; Adding Parties (1) OR-OSHA and the employer are necessary parties in all contested cases under the Act. (2) If an affected employee or authorized representative requests a hearing pursuant to ORS 654.078(2) or 654.056(5), or requests to become a party pursuant to ORS 654.290(2)(d) and OAR 438-085-0411, such affected employee or authorized representative shall be a necessary party. (3) Any person considered necessary by the Administrative Law Judge for a full and final determination of the issues in a case may be added upon petition pursuant to OAR 438-085-0426. Statutory/Other Authority: ORS 183.335, 654.056(5) & 656.726(5) Statutes/Other Implemented: ORS 654.025, 654.078 & 654.290(2)(d) History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74
438-085-0411 Employee Rights (1) Affected employees or authorized representatives may elect to participate as parties in a contested case in which they have not requested a hearing by submitting a request to the Hearings Division. (2) An affected employee’s or authorized representative’s request to become a party in a case must be filed at least five days before the hearing, if any, on the merits of the case. The assigned Administrative Law Judge may otherwise allow an affected employee or authorized representative to participate as a party only upon a showing of good cause. (3) The written request to become a party must show that the person is an affected employee or an authorized representative. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0426 Intervention (1) A petition to intervene in a contested case may be filed by a person at any time before the case is closed without a hearing, or before any scheduled hearing starts. (2) The petition must state the petitioner’s interest in the case, show that participation will assist in the determination of the issues, and explain why intervention will not unnecessarily delay the proceedings. (3) The Administrative Law Judge may grant a petition for intervention to such extent and upon such terms as considered appropriate. (4) When a petition for intervention is granted, the intervenor becomes a party to the case. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0431 Representatives of Parties (1) Any party may act through a representative and may appear in a hearing by a representative. (2) A representative is not required to be an attorney at law or have any other special qualification. (3) Unless a party is represented by an attorney at law, a designation of the party’s representative must be in writing, contain the name, address and telephone number of the representative and be signed by the party. If the party is a corporation, the designation must be signed by an officer; if a partnership, by one of the partners; and if a public body, labor union, or other organization, by an official with the authority to designate a representative. (4) A representative shall be considered to fully control the interests of the party in the case. (5) A representative may terminate its status as a representative by filing a written notice thereof and serving a copy on all other parties. Statutory/Other Authority: ORS 654.025(2) & 654.293 Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0436 Access to Documents (1) The employer must maintain, until the case is closed, copies of all documents filed in the case at a location convenient for affected employees to inspect and copy them at reasonable times. (2) Any person may inspect and copy the documents filed in a contested case which has been referred to the Hearings Division at the offices of the Hearings Division. Copies of documents may be ordered by mail. The cost of copies shall be at the rates set by the Board for the reproduction of its public records, but a nominal number of copies may be provided without charge. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0506 Captions of Cases Contested cases shall be captioned by the Hearings Division and referred to by the following titles: (1) A case initiated by a contested OR-OSHA citation, notice of penalty or correction order shall be titled, “Oregon Occupational Safety and Health Division, Plaintiff v. (name of party requesting a hearing), Defendant.” (2) A contested case that originated with an application relating to a variance shall be titled, “(name of party requesting a hearing), Petitioner v. Oregon Occupational Safety and Health Division, Respondent.” Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0511 Form of Documents (1) All documents, other than exhibits submitted pursuant to OAR 438-085-0855, filed after the Hearings Division acknowledges transmittal of a contested case shall: (a) Contain the case title and docket number assigned by the Hearings Division and the name of the assigned Administrative Law Judge; (b) Contain the name, address and telephone number of the party or representative submitting the document; and (c) Be signed by the party or representative submitting the document. (2) The Administrative Law Judge may refuse to accept for filing or consideration any document that does not comply with this rule. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0526 Amendments as of Right (1) Unless otherwise provided by the Administrative Law Judge, amendments to the citation and to the request for hearing, including affirmative defenses, shall be allowed up to the date and time set for hearing. (2) An amendment made by OR-OSHA under this rule may not allege a new violation or increase a penalty. (3) Amendments made in accordance with this rule are effective upon filing. (4) If a party is prejudiced by the timing of the amendment, a postponement or continuance may be allowed. Statutory/Other Authority: ORS 654.025(2) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 3-1989, f. 3-31-89, ef. 5-1-89 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73
438-085-0531 Correction of Defective Request for Hearing If a request for hearing fails to specify the matters contested and the grounds for the request for hearing, or otherwise fails to substantially comply with the requirements of ORS 654.078 and OAR 438-085-0111, the Administrative Law Judge may, on the Administrative Law Judge’s own motion or upon motion of a party, order the requesting party to correct the defects by filing an amended request for hearing, or a supplement to the request for hearing, within such time as the Administrative Law Judge considers reasonable. If within the time permitted the requesting party fails to amend or supplement the request for hearing to conform with ORS 654.078 and OAR 438-085-0111, it may be dismissed by the Administrative Law Judge. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 4-1978, f. 3-31-78, ef. 4-1-78 WCB 6-1977, f. 5-5-77, ef. 6-1-77
438-085-0541 Service of Documents on Other Parties (1) At the time a party files any document with the Hearings Division, the party shall serve a copy of that document on every other party to the case. (2) Service shall be made upon a party by first class mail or by personal delivery, and is effective at the time of mailing or personal delivery. (3) Service upon a party who is acting through a representative shall be made upon that representative. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025 & 654.078 History: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 6-1977, f. 5-5-77, ef. 6-1-77 WCB 10-1974, f. 3-19-74, ef. 4-15-74 WCB 5-1973, f. & ef. 12-20-73