justicedao/ipfs_state_laws huggingface dataset:
438-006-0064 Prehearing Matters Regarding Multiple Employer/Insurer Cases (1) In cases where the initially scheduled hearing has been postponed because of the need to join one or more potentially responsible employers or insurers, the parties shall participate in any prehearing conferences that the assigned Administrative Law Judge determines are required to expedite the hearing. (2) The assigned Administrative Law Judge is authorized to: (a) Establish a prehearing schedule for investigation of the claim, including but not limited to the interviewing of the claimant; (b) Make prehearing rulings necessary to promote full discovery and completion of the medical record required for determination of the issues arising from the claim; and (c) Specify what is required of the claimant to meet the obligation to reasonably cooperate with the investigation of claims. (3) The Administrative Law Judge shall reschedule the postponed hearing as expeditiously as possible after all potentially responsible employers and insurers have been joined in the proceeding and the medical record is fully developed. (4) For purposes of this rule, "parties" includes the claimant, the employer(s) and insurer(s) already joined in the proceeding, and potentially responsible employers or insurers not yet joined. Participation in prehearing conferences under this rule may be through the parties’ legal representatives. Statutory/Other Authority: ORS 656.726(5), 656.283 & 656.388 Statutes/Other Implemented: ORS 656, 656.262(11)(a) & (16), 656.283(4)(b) & 656.726(5) History: WCB 3-2003, f. 12-12-03 cert. ef. 1-1-04
438-006-0065 Consolidation/Joinder/Bifurcation (1) An Administrative Law Judge shall consolidate into one proceeding all cases in which a claimant has requested hearings involving denials of responsibility for a claim issued by insurers or self-insured employers under ORS 656.308(2)(a). (2) Any request for hearing pertaining to the same claim or claimant as that of a pending hearing request should also recite whether the request for hearing should be consolidated with a pending hearing request or be separately scheduled for hearing. (3) Except as provided in ORS 656.308(2)(a) and section (1) of this rule, a hearing request complying with section (2) of this rule shall be processed pursuant to the recitation contained in the hearing request. (4) A hearing request not complying with section (2) of this rule shall be referred to the Administrative Law Judge assigned to any pending request for hearing pertaining to the same claim or claimant or to the Presiding Administrative Law Judge or designee, who shall determine, in the interests of substantial justice to all parties, whether the request will be consolidated or separately scheduled for hearing. (5) On their own motion or, in response to a party’s written motion filed no less than seven (7) days prior to a scheduled hearing, the assigned Administrative Law Judge or the Presiding Administrative Law Judge or designee may, in the interests of substantial justice to all parties, bifurcate consolidated requests for hearing or consolidate separately scheduled hearings. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.307, 656.308 & 656.726(4) History: WCB 5-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 1-1984, f. 4-5-84, ef. 5-1-84
438-006-0071 Failure of Party to Pursue or to Appear at Hearing (1) A request for hearing may be dismissed if an Administrative Law Judge finds that the party that requested the hearing has abandoned the request for hearing or has engaged in conduct that has resulted in an unjustified delay in the hearing of more than 60 days. (2) Unjustified failure of a party or the party’s representative to attend a scheduled hearing is a waiver of appearance. If the party that waives appearance is the party that requested the hearing, the Administrative Law Judge shall dismiss the request for hearing as having been abandoned unless extraordinary circumstances justify postponement or continuance of the hearing. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.307, 656.388, 656.593 & 656.726(4) History: WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87
438-006-0075 Expedited Remedy for Failure to Pay Temporary Disability (1) The claimant may file with the Hearings Division with copies to the insurer, a motion supported by affidavit asserting the failure to receive such compensation if it is alleged that the self-insured employer or insurer has terminated temporary disability compensation without: (a) The attending physician advising the worker and documenting in writing that the worker is released to return to regular employment; or (b) The injured worker's actual return to regular or modified employment; or (c) The attending physician advising the worker and documenting in writing that the worker is released to return to modified employment, when such employment has been offered in writing to the worker and the worker fails to begin such employment; or (d) Any other event that causes temporary disability benefits to be lawfully suspended, withheld or terminated under ORS 656.262(4) or other provisions under chapter 656; or (e) The issuance of a determination order or notice of closure; or (f) Authorization of the Board or the Director. (2) If the Hearings Division determines that the amount in controversy is less than $1,000, the case shall be referred to the Expedited Claims Service under the provisions of OAR chapter 438, division 013 of these rules; (3) If the matter cannot be resolved by referral to the Expedited Claims Service, the Hearings Division shall immediately upon receipt of the motion and affidavit issue an Order requiring the self-insured employer or insurer to show cause within 15 days why said compensation has not been provided to the claimant. The show cause order shall contain notice of the date, time and place of the show cause hearing. Within 10 days after the close of the record, the Administrative Law Judge shall enter an order denying or granting temporary disability compensation and awarding penalties and attorney fees when appropriate. Statutory/Other Authority: ORS 656.726(5) & 656.291(4) Statutes/Other Implemented: ORS 656.262(4), 656.291 & 656.726(5) History: WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14 WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 1-1984, f. 4-5-84, ef. 5-1-84
438-006-0078 Request for Expedited Hearing (1) If it is alleged that the claimant is suffering a financial hardship or medical hardship, the claimant may file with the Presiding Administrative Law Judge with copies to the insurer, a written motion asserting the hardship and requesting an expedited hearing: (a) For purposes of this rule, “financial hardship” means that the claimant is receiving neither compensation nor regular wages nor other income in lieu of wages which is comparable in amount to compensation; (b) For purposes of this rule, “medical hardship” means that the claimant’s condition will permanently and irreversibly deteriorate if the hearing is scheduled in the ordinary course of business and that such deterioration may be avoided by scheduling the hearing at an earlier date. (2) A motion for expedited hearing shall be accompanied with supporting evidence: (a) If the motion is based on financial hardship, supporting evidence shall include an affidavit from claimant or family member establishing such hardship; (b) If the motion is based on medical hardship, supporting evidence shall include a medical report from the attending physician establishing medical hardship. (3) A motion for expedited hearing shall state whether opposing counsel (or the party if the party is not represented by counsel), objects to, concurs in or has no comment regarding the motion. (4) If opposing counsel (or the party if the party is not represented by counsel) concurs with the motion, the motion shall be accompanied by three mutually suitable dates for an expedited hearing. (5) If opposing counsel (of the party if the party is not represented by counsel) either objects to the motion or has no comment, counsel for the moving party shall arrange and place a conference telephone call with the Presiding Administrative Law Judge or designee and counsel for the parties. (6) Within a reasonable time after receipt of the motion for expedited hearing and completion of the telephone call, if required, the Presiding Administrative Law Judge or designee shall notify the parties in writing of the Administrative Law Judge’s ruling: (a) If the motion is granted, the Presiding Administrative Law Judge or designee shall also notify the parties of the date for the expedited hearing; (b) If the motion is denied, hearing shall be held on a date scheduled in the ordinary course of business. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.283(1) & 656.726(4) History: WCB 6-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 5-1991, f. 8-22-91, cert. ef. 9-2-91
438-006-0081 Postponement of Hearings (1) A scheduled hearing shall not be postponed except by order of an Administrative Law Judge upon a finding of extraordinary circumstances beyond the control of the party or parties requesting the postponement. "Extraordinary circumstances" shall not include: (a) Failure of the insurer or self-insured employer to refer, or delay in referring, the case or any pertinent information to its representative; (b) Unavailability of a party, lay witness or representative due to nonemergency occupational, personal or professional business or appointments, or unwillingness to appear, provided that a postponement may be granted if the unavailable person is a worker who is temporarily working out of state and is reasonably expected to return to the state within a time certain or is a person who has been duly subpoenaed and has failed to comply with the subpoena; (c) An attorney's, party's, representative's or witness' conflict with proceedings before another administrative body that are scheduled more than three days after mailing of the Hearings Division’s notice of hearing; (d) Incomplete case preparation, unless the Administrative Law Judge finds that completion of the record could not be accomplished with due diligence. (2) For purposes of this rule, "due diligence" shall include, but not be limited to, a party’s inability to produce, because of unavailability, a medical or vocational expert witness for direct examination at hearing or for cross-examination at hearing or by deposition/interrogatories prior to a scheduled hearing, provided that the request for cross-examination was made no later than seven (7) days after the requesting party received from another party a copy of a report from the medical or vocational expert witness accompanied by written notice that the sending party is submitting the report as a proposed exhibit for admission into evidence at a scheduled hearing. A party need not subpoena a medical or vocational expert witness to establish due diligence under this section. Statutory/Other Authority: ORS 656.283(4) Statutes/Other Implemented: ORS 656.307 & 656.726(5) History: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03 WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97 WCB 2-1989, f. 3-3-89, cert. ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87
438-006-0091 Continuances The parties shall be prepared to present all of their evidence at the scheduled hearing. Continuances are disfavored. The Administrative Law Judge may continue a hearing for further proceedings. If a continuance is granted, the Administrative Law Judge shall state the specific reason for the continuance. A continuance may be granted: (1) If circumstances, including the time allocated for the scheduled hearing, prevent all parties from presenting their evidence and argument; (2) Upon a showing of due diligence, as described in OAR 438-006-0081(2), if necessary to afford reasonable opportunity to cross-examine on documentary medical or vocational evidence; (3) Upon a showing of due diligence, as described in OAR 438-006-0081(2), if necessary to afford reasonable opportunity for the party bearing the burden of proof to obtain and present final rebuttal evidence; (4) Upon motion of an adverse party, if that party is surprised and prejudiced by a new issue raised during a hearing; or (5) For any reason that would justify postponement of a scheduled hearing under OAR 438-006-0081. Statutory/Other Authority: ORS 656.283(4) & 656.726(5) Statutes/Other Implemented: ORS 656.307 & 656.726(5) History: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 3-1987(Temp), f. 8-27-87, cert. ef. 9-15-87
438-006-0099 Ex Parte Communications (1) An ex parte communication is an oral, written or electronic communication between an assigned Administrative Law Judge and a party, a party’s representative or someone with a substantial interest in the outcome of the proceeding about the merits of a proceeding to which the Administrative Law Judge is assigned and which is not made to all parties to the proceeding. (2) Ex parte communications are prohibited. (3) Notwithstanding section (2) of this rule, an assigned Administrative Law Judge may communicate with a party, when necessary for administrative or scheduling purposes, so long as the communication does not involve the merits of a proceeding and the Administrative Law Judge believes that no party’s legal rights or duties will be affected. (4) An Administrative Law Judge shall promptly disclose to all parties the substance of any communication prohibited by this rule. All parties shall be allowed a reasonable opportunity to respond to a prohibited communication. (5) This rule does not apply to communications made to, or by, an Administrative Law Judge acting as a mediator. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.726(5) History: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03
438-006-0100 Representation by Counsel (1) Except as permitted by ORS 656.291 and this rule, parties that are not natural persons and state agencies must be represented by members of the Oregon State Bar. The Board encourages injured workers also to be represented in formal hearings. (2) Notwithstanding section (1) of this rule, a state agency officer or employee may represent the Director as permitted by rule of the Director. (3)(a) A law student authorized to appear before courts and administrative tribunals of this state in accordance with Rule 13.05 through 13.30 of the Supreme Court Rules for Admission of Attorneys (Law Student Appearance Program) has the consent of the Board to appear on behalf of a client at a hearing if: (A) All of the following documents have been filed with the Presiding Administrative Law Judge prior to the hearing: (i) A true copy of the student's certification to appear under the Law Student Appearance Program showing approval by the Supreme Court and filing with the State Court Administrator; (ii) The client's written consent to representation under the Law Student Appearance Program, which shall be made a part of the official record of each case; and (iii) The student's supervising attorney has introduced the student to the Presiding Administrative Law Judge in a letter of introduction signed by the supervising attorney; and (B) The Presiding Administrative Law Judge has approved the law student's appearance prior to the hearing. (b) The supervising attorney is encouraged, though not required, to personally introduce the law student to the assigned Administrative Law Judge in each case. Statutory/Other Authority: ORS 656.726(5) Statutes/Other Implemented: ORS 656.726(5) & 9.320 History: WCB 1-2016, f. 9-15-16, cert. ef. 11-1-16 WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 Reverted to WCB 1-1990, f. 1-24-90, cert. ef. 2-28-90 WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90 WCB 1-1990, f. 1-24-90, cert. ef. 2-28-90 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 1-1984, f. 4-5-84, ef. 5-1-84
438-006-0110 Hearing Security Any party or attorney having knowledge or reasonable belief that any party or witness to the hearing may potentially present a danger or may be a threat to anyone involved in the claim or hearing shall immediately notify the hearing Administrative Law Judge and the opposing attorney(s) of the potentially dangerous situation. All decisions involving security at the hearing shall be within the discretion of the Presiding Administrative Law Judge or designee. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.726(4) History: WCB 8-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90 WCB 1-1993, f. 5-19-93, cert. ef. 6-1-93
438-006-0115 Motion to Dismiss a Party under ORS 656.308(2)(c) (1) If an insurer or self-insured employer is alleging that the record does not contain substantial evidence to support a finding of responsibility against it, the insurer or self-insured employer may file a “written notice” pursuant to ORS 656.308(2)(c) requesting its dismissal as a party to the proceeding. (2) The written notice described in section (1) of this rule shall be considered by the Administrative Law Judge if: (a) The written notice is labeled “308 Dismissal Motion”; (b) The written notice (including any supporting documentation) is filed not more than 28 days or less than 14 days before the hearing; and (c) A copy of the written notice (including any supporting documentation) is simultaneously served on the other parties, or if represented, on their attorneys in the manner provided in OAR 438-005-0046(2)(a), and proof of such service is provided in accordance with 438-005-0046(2)(b). (3) Written responses to the written notice described in sections (1) and (2) of this rule shall be considered if: (a) The written response is labeled “308 Dismissal Response”; (b) The written response (including supporting documentation) is filed within seven days after the written notice is filed; and (c) A copy of the written response (including supporting documentation) is simultaneously served on the other parties or, if represented, on their attorneys in the manner provided in 438-005-0046(2)(a) and proof of such service is provided in accordance with 438-005-0046(2)(b). (4) For purposes of ORS 656.308(2)(c) and this rule, the record shall include any document filed with the Hearings Division which was considered by the Administrative Law Judge prior to the issuance of their decision. (5) Not less than seven days before the hearing, the Administrative Law Judge shall inform the parties either that: (a) The party filing the written notice shall be dismissed as a party to the hearing; or (b) The party filing the written notice shall not be dismissed as a party to the hearing; or (c) The hearing shall be postponed. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.308(2)(c) History: WCB 9-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
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 themself 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. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.287 & 656.310(2) History: WCB 10-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14 WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97 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 WCD 2-1987(Temp), f. 4-13-87, ef. 4-15-87 WCB 1-1984, f. 4-5-84, ef. 5-1-84
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. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.287 History: WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 1-1984, f. 4-5-84, ef. 5-1-84
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 their 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. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.726(4) History: WCB 11-2022, minor correction filed 03/15/2022, effective 03/15/2022 WCB 2-1989, f. 3-3-89, ef. 4-1-89 WCB 5-1987, f. 12-18-87, ef. 1-1-88 WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87