justicedao/ipfs_state_laws huggingface dataset:
438-009-0030 Claim Disposition Agreements; Stay of Other Proceedings; Payment of Proceeds (1) Notwithstanding OAR 438-006-0081, 438-006-0091, 438-011-0020 and 438-011-0025, the receipt of a claim disposition agreement by the Administrative Law Judge who mediated the agreement or the Board shall suspend all other proceedings before the Board and the Hearings Division until completion of action upon the agreement, except that the Board shall accept and file requests for hearing and Board review for purposes of establishing jurisdiction. (2) In those cases where the claimant is unrepresented or the claim disposition agreement does not include a provision in which the parties waive their "30-day" rights to seek disapproval, the Administrative Law Judge who mediated the agreement or the Board shall notify the parties and the Director of the receipt of a claim disposition agreement. (3) In all cases, the Administrative Law Judge who mediated the agreement or the Board shall notify the Director of the receipt of a claim disposition agreement. (4) In cases in which a party has requested judicial review of an order of the Board and such judicial review is pending on the date the Board receives the claim disposition agreement, the Administrative Law Judge who mediated the agreement or the Board shall notify the State Court Administrator of the receipt of the agreement. (5) In the event that the Administrative Law Judge who mediated the agreement or the Board Members issue a separate written decision, the Administrative Law Judge or the Board will provide a copy of the decision for the Director’s claim file, and copies of that decision approving or disapproving a claim disposition agreement shall be mailed to parties and their attorneys. (6) Except as otherwise provided in section (5) of this rule, the signature of the Administrative Law who mediated the agreement or two Board Members on a claim disposition agreement shall constitute a final order approving the disposition under ORS 656.236(1). Notice of this approval shall be accomplished in the manner provided in OAR 438-009-0028. (7) Payment of the disposition shall be made no later than the 14th day after notice of its approval has been mailed or delivered under Section (5) or (6) of this rule to the parties, unless otherwise stated in the agreement. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.236 History: WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12 WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08 WCB 2-1995, f. 11-13-96, cert. ef. 1-1-96 WCB 2-1993, f. 9-9-93, cert. ef. 12-1-93 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90
438-009-0035 Reconsideration of Claim Disposition Agreements (1) A motion for reconsideration of final orders issued under ORS 656.236 and these rules shall be filed within 10 days of the date of mailing of the order. (2) The Administrative Law Judge who mediated the agreement or the Board may reconsider final orders under ORS 656.236, provided that the motion for reconsideration: (a) Is filed in accordance with section (1) of this rule; and (b) States specifically the reason(s) reconsideration is requested. (3) Reconsideration of a final order issued under ORS 656.236 and these rules shall be limited to the record before the Administrative Law Judge who mediated the agreement or the Board at the time the final order was mailed or delivered under OAR 438-009-0030(5) or (6) and no additional information will be considered, unless the Administrative Law Judge who mediated the agreement or the Board finds good cause for allowing the additional submission. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.236 History: WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08 WCB 5-1991, f. 8-22-91, cert. ef. 9-2-91 WCB 1-1991(Temp), f. & cert. ef. 3-8-91
438-010-0010 Effective Date for Applying Disability Standards In applying the disability rating standards at hearing and on review, the Administrative Law Judge and the Board shall apply the disability rating standards as required by OAR 436-035-0003. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.283(7) & 656.295(5) History: WCB 7-1992, f. 12-10-92, ef. 12-14-92 WCB 5-1992(Temp), f. 6-26-92, cert. ef. 6-29-92 WCB 8-1991, f. 11-6-91, cert. ef. 11-7-91 WCB 4-1991(Temp), f. 6-14-91, cert. ef. 6-17-91 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 WCB 4-1989, f. 6-15-89, ef. 7-1-89 WCB 1-1989(Temp), f. & ef. 2-1-89
438-011-0005 Request for Board Review (1) The time for and manner of filing a request for Board review of a Administrative Law Judge's order are set forth in ORS 656.289, 656.295, and OAR 438-005-0046. (2) Copies of a request for Board review of an Administrative Law Judge's order shall be simultaneously served on all parties to the proceeding and to their attorneys, if represented by an attorney. (3) The request should recite the name of the claimant, the WCB case number, the identity of the party requesting review and should contain a brief statement of the reason review is requested. (4) The request should also recite whether payment of compensation will be stayed under ORS 656.313. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.289(3) & 656.295(1)(2) History: WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12 WCB 5-1991, f. 8-22-91, cert. ef. 9-2-91 WCB 2-1991(Temp), f. 3-28-91, cert. ef. 4-8-91 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1986, f. 10-8-86, ef. 11-1-86
438-011-0010 Applicability These rules apply to all cases in which a party or parties request Board review of an order of an Administrative Law Judge pursuant to ORS 656.289, 656.291, 656.295 and 656.307 and to cases in which a party requests a decision of the Board under the third party law, 656.576 through 656.596. These rules do not apply to proceedings before the Board on its own motion pursuant to 656.278 and proceedings before the Board after remand from an appellate court. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.295, 656.307, 656.587 & 656.594 History: WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1986, f. 10-8-86, ef. 11-1-86
438-011-0015 Scope of Board Review (1) Review by the Board is de novo upon the entire record. The Board may remand a matter to the Hearings Division to take additional evidence, report findings to the Board or to enter an Opinion and Order on remand. (2) The Board will not ordinarily entertain oral argument. All issues and arguments should be reduced to writing and filed pursuant to OAR 438-011-0020. The case will be reviewed in the ordinary course of business without prior notice to the parties of the date or time of review. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.295(5) History: WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1987, f. 11-6-87, ef. 11-16-87 Reverted to WCB 1-1987, f. 3-4-87, ef. 4-15-87 WCB 2-1987(Temp), f. 4-13-87, ef. 4-15-87 WCB 1-1987, f. 3-4-87, ef. 4-15-87 WCB 5-1986(Temp), f. 10-30-86, ef. 11-1-86 WCB 4-1986, f. 10-8-86, ef. 11-1-86
438-011-0020 Briefs and Other Documents (1) Filing of briefs is not jurisdictional; however, the Board views briefs as a significant aid to the review process. Briefs submitted for consideration by the Board shall comply with this section. (2) The party requesting Board review shall file its appellant's brief to the Board within 21 days after the date of the Board’s “Notice of Briefing.” Respondent(s) shall file its (their) brief(s) within 21 days after the date of filing of the appellant's brief. Any party who has filed a cross-request for review shall include its cross-appellant's opening brief as a part of its respondent's brief. An appellant may file a reply and/or cross-respondent's brief within 14 days after the date of filing of the respondent's and/or cross-appellant's brief. Any party who has not filed a request for review may file a cross-respondent's brief within 14 days after the date of filing of the cross-appellant's brief. A cross-appellant may file a cross-reply brief within 14 days of the filing date of a cross-respondent's brief. Unless otherwise authorized by the Board, no other briefs will be considered. (3) Extensions of time for filing of briefs will be allowed only on written request filed pursuant to OAR 438-005-0046(1) no later than the date the brief is due. A statement whether opposing counsel (or a party if the party is not represented by counsel) objects to, concurs in or has no comment regarding the extension of time requested shall be furnished in all cases. Briefing extensions will not be allowed unless the Board finds that extraordinary circumstances beyond the control of the party requesting the extension justify the extension. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.295(5) & 656.726(4) History: WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12 WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08 WCB 1-1993, f. 5-19-93, cert. ef. 6-1-93 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 WCB 10-1990(Temp), f. 10-25-90, cert. ef. 10-27-90 WCB 4-1990(Temp), f. 4-13-90, cert. ef. 4-30-90 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1986, f. 10-8-86, ef. 11-1-86
438-011-0022 Expedited Review (1) For purposes of OAR chapter 438, division 011, compensation is deemed stayed under ORS 656.313 if the employer/insurer has filed a request for Board review on or after July 1, 1990 of an Administrative Law Judge’s order and compensation is due and unpaid under the order for medical services, temporary disability benefits, permanent total disability benefits, or to a surviving spouse prior to remarriage, to children or dependents that accrued before the date of the order, or permanent disability benefits. (2) Board review of Administrative Law Judge orders in cases described in section (1) of this rule will be expedited. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.313(1)(6) & 656.726(4) History: WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 5-1991, f. 8-22-91, cert. ef. 9-2-91 WCB 2-1991(Temp), f. 3-28-91, cert. ef. 4-8-91
438-011-0023 Request for Recusal of Board Member A request by a party that a Board member not participate in the review of a case shall be made in writing and filed with the Board not later than the due date of the party’s first brief. The request shall state specifically why the Board member should not participate in review of the case. A Board member may decline to participate in the review if the Board member finds that there is a personal conflict of interest involving a matter or matters directly in issue in the case. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.726(4) History: WCB 15-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 2-1989, f. 3-3-89, ef. 4-1-89
438-011-0025 Motions that Toll Time Unless otherwise ordered by the Board, the filing of a motion to dismiss a request or cross-request for review or to remand a case to the Hearings Division tolls the time for the next event in the review process. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.295(5) & 656.726(4) History: WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1986, f. 10-8-86, ef. 11-1-86
438-011-0030 Motion for Waiver of Rules Except as otherwise prohibited by law, the Board may waive any provision of OAR 438-011 upon motion of a party. A motion for waiver of rules shall include a statement of the facts and circumstances relied upon and shall be simultaneously served upon all other parties or their attorneys. The motion may be allowed if the Board finds that extraordinary circumstances beyond the control of the party requesting waiver of a rule or rules justify such an action. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.295(5) & 656.726(4) History: WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1986, f. 10-8-86, ef. 11-1-86
438-011-0031 Request for Oral Argument (1) At any time before expiration of the briefing schedule, a party may request that the Board entertain oral argument. (2) The Board may grant a request under section (1) of this rule or, on its own motion, at any time prior to issuance of its order schedule oral argument if the Board finds that: (a) The case presents an issue of first impression; and (b) The issue for resolution may have a significant impact on the workers’ compensation system. (3) Whether or not oral argument is permitted is a decision within the sole discretion of the Board. Statutory/Other Authority: ORS 656.025(2) & 656.726(4) Statutes/Other Implemented: ORS 656.295(5) History: WCB 1-1994, f. 1-11-94, cert. ef. 1-1-95
438-011-0032 Procedure at Oral Argument (1) In those cases where the Board has granted oral argument under OAR 438-011-0031, each party shall have 30 minutes to present its argument, unless the Board member who is presiding at the argument designates a longer or shorter period. (2) The appellant shall argue first and may reserve not more than 10 minutes of the time allowed for argument in which to reply. (3) Unless the Board member who is presiding at the argument orders otherwise, a party’s argument must be presented by only one individual. Statutory/Other Authority: ORS 656.025(2) & 656.726(4) Statutes/Other Implemented: ORS 656.295(5) History: WCB 1-1994, f. 1-11-94, cert. ef. 1-1-95
438-011-0035 Review; Board Order; Reconsideration (1) The Board order on review shall set forth: (a) The parties; (b) The issues; (c) The reviewing members; (d) The Board’s decision and (e) Shall advise all parties of appeal rights. (2) A request for reconsideration of a Board order shall include a concise statement of the reason(s) reconsideration is requested. An order on reconsideration shall state whether or not the original order is withdrawn for reconsideration. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.295(5) & 656.718 History: WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 4-1987, f. 11-6-87, ef. 11-16-87 Reverted to WCB 1-1987, f. 3-4-87, ef. 4-15-87 WCB 1-1987, f. 3-4-87, ef. 4-15-87 WCB 2-1987(Temp), f. 4-13-87, ef. 4-15-87 WCB 5-1986(Temp), f. 10-30-86, ef. 11-1-86
438-011-0045 Third Party Orders (1) Any party requesting the Board's resolution of a controversy arising under the third party law, ORS 656.576 through 656.596, shall petition the Board for relief. The party requesting relief is the petitioner and all other parties are respondents. (2) The petition shall clearly identify the party seeking relief, shall clearly state the relevant facts and the nature of the dispute and shall specify the relief sought. All relevant evidence shall be attached to the petition. Testimonial evidence shall be by deposition, affidavit or written interrogatories. True copies of the petition and all attachments shall be served on all other parties to the dispute. (3) The Board shall acknowledge receipt of the petition to all named parties. The respondent(s) shall be allowed 21 days to file evidence and argument in response to the petition. The petitioner shall be allowed 14 days to file a reply argument. The time for filing may be extended by the Board upon motion of a party. The Board will issue its order within a reasonable time after all argument and evidence has been filed. (4) Settlement documents in civil actions under ORS 656.576 through 656.596 shall not be submitted to the Board unless there is a dispute requiring resolution by the Board. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(5) Statutes/Other Implemented: ORS 656.587 & 656.593 History: WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-011-0055 Third Party Election Letter (1) If a self-insured employer or insurer (hereafter “paying agency”) intends to require the claimant or other beneficiaries or the legal representative of a deceased worker (hereafter “the claimant”) to exercise the right of election provided in ORS 656.578 to recover damages from a noncomplying employer or third person (hereafter “third party”), the paying agency shall serve a written demand by registered or certified mail or by personal service upon the claimant or, if represented, the claimant’s attorney. (2) The paying agency shall include with its “third party election” letter described in section (1) of this rule, in a separate enclosure, information explaining the “third party election/assignment” process. The Board shall prescribe by bulletin the specific form and format for the enclosure. If the claimant does not read or comprehend English, or is otherwise unable to understand written language, the paying agency shall provide this information in a language or other manner that ensures that the claimant understands the meaning of the letter. (3) The “third party election” letter, as described in section (1) of this rule shall: (a) Contain the information prescribed by ORS 656.583; and (b) Include a statement that the claimant has also been provided the informational enclosure prescribed by bulletin pursuant to section (2) of this rule. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.576; 656.578, 656.583, 656.591 & 656.593 History: WCB 3-2013, f. 12-12-13, cert. ef. 4-1-14
438-012-0001 Definitions (1) "Own Motion Board" and "Board" mean the Workers' Compensation Board acting under its authority pursuant to ORS 656.278 and these rules. (2) "Own Motion Claim" means: (a) A written request, including such a request related to an injury occurring before January 1, 1966, by or on behalf of a claimant for temporary disability compensation or claim reopening regarding a worsened condition that has been determined to be compensable and that was initiated after the rights under ORS 656.273 expired (i.e., a "post-aggravation rights" "worsened condition" claim); (b) A new medical condition or an omitted medical condition, including such a condition related to an injury occurring before January 1, 1966, that is related to an initially accepted claim that has been determined to be compensable and that was initiated after the rights under ORS 656.273 expired (i.e., a "post-aggravation rights" new medical condition or omitted medical condition claim); or (c) A written request by or on behalf of a claimant for medical benefits for a compensable injury that occurred before January 1, 1966, unless the injury occurred from August 5, 1959 through December 31, 1965 and resulted in an award of permanent total disability. (3) For a "post-aggravation rights" "worsened condition" claim, "determined to be compensable" means: (a) The insurer does not dispute compensability of or responsibility for the claim or condition; i.e., the insurer has not issued a denial within the time period prescribed under ORS 656.262 or 656.308(2); or (b) An order from an Administrative Law Judge, the Board, or the court has found the claim or condition compensable and the responsibility of the insurer. (4) For a "post-aggravation rights" new medical condition or omitted medical condition claim, "determined to be compensable" means: (a) The insurer has issued a notice of acceptance under ORS 656.262(7)(a); or (b) The insurer's denial under ORS 656.262(7) or 656.308(2) or de facto denial has been set aside by an order from an Administrative Law Judge, the Board, or the court. (5) "Own Motion Insurer," "Insurer" and "Paying Agent" mean a guaranty contract insurer or self-insured employer that is or may be responsible for payment of compensation under the provisions of ORS 656.278. (6) "Own Motion Order" means an order of the Own Motion Board. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.267(1)(3), 656.278(1) & 656.726(5) History: WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13 WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06 WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03 WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88
438-012-0016 Communication with Board and Parties in Own Motion Cases A copy of any document in an Own Motion proceeding, including correspondence, directed to the Board or to a party in the claim shall be simultaneously mailed or delivered to all other parties involved in the claim or, if a party is currently represented by an attorney, to the party's attorney. Statutory/Other Authority: ORS 656.278(1) & 656.726(4) Statutes/Other Implemented: ORS 656.278(1) & 656.726(4) History: WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 5-1987, f. 12-18-87, cert. ef. 1-1-88
438-012-0017 Written Argument and Other Documents (1) Timely compliance with Board requests for written argument and/or timely responses to inquiries from the Board is necessary to the Board’s decision making process. (2) Unless otherwise allowed by the Board, extensions of time for the filing of written arguments/responses will be allowed only on written request filed no later than the date the argument/response is due. A statement whether opposing counsel (or a party, if the party is not represented by counsel) objects to, concurs in or has no comment regarding the extension of time requested should be furnished with the extension request. Statutory/Other Authority: ORS 656.278 & 656.726(5) Statutes/Other Implemented: ORS 656.278(1) & 656.726(5) History: WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04
438-012-0018 Applicability of Rules; Effective Date (1) These rules apply to claims in which a request for compensation under the Board's Own Motion jurisdiction is in existence or arose on or after the effective date of these rules. (2) These rules in OAR chapter 438, division 012 are effective January 1, 2006. Statutory/Other Authority: ORS 656.278 & 656.726(5) Statutes/Other Implemented: ORS 656.278(1) & 656.726(5) History: WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06 WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 8-1990(Temp), f. 8-23-90, cert. ef. 9-15-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04
438-012-0031 Notification of Pending Proceedings Parties to an Own Motion proceeding shall notify the Board of any pending proceeding involving a contested case under ORS 656.283 through 656.298, 656.307, or 656.308, an arbitration or mediation proceeding under ORS 656.307, a managed care dispute resolution review process, or a Director's medical review under ORS 656.245, 656.260, or 656.327. The parties shall also specify the issues raised in that proceeding. Statutory/Other Authority: ORS 654.025(2) & 656.726(5) Statutes/Other Implemented: ORS 656.278(1) & 656.726(5) History: WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95