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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
WORKERS' COMPENSATION BOARD

 

DIVISION 6

PROCEDURES PRIOR TO HEARING IN ORDINARY CASES

438-006-0020

Acknowledgment; Notice of Conference and Hearing in Ordinary Hearing Process

The Hearings Division shall, by mail, acknowledge receipt of a request for hearing. Such acknowledgment may include notice of date for an informal prehearing conference pursuant to OAR 438-006-0062 or notice of hearing date. The hearing shall be scheduled for a date that is within 90 days of the request for hearing and not less than 60 days after mailing of a notice of hearing date subject to the exceptions prescribed in ORS 656.283(4)(b).

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.283(4)(5)(a)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 6-1990(Temp), f. 4-24-90, cert. ef. 4-25-90; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-006-0031

Specification of Issues

(1) Consistent with the Board's policy described in OAR 438-005-0035, the request for hearing under OAR 438-005-0070 filed with the Board shall include, on a form prescribed by the Board, a specific listing of all issues to be raised at the hearing and all relief requested.

(2) Consistent with the Board's policy described in OAR 438-005-0035, amendments may be allowed, subject to a motion by an adverse party for a postponement under OAR 438-006-0081 or a continuance under OAR 438-006-0091. If, during the hearing, the evidence supports an issue or issues not previously raised, the Administrative Law Judge may allow the issue(s) to be raised during the hearing. In such a situation, the Administrative Law Judge may continue the hearing pursuant to OAR 438-006-0091.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.307 & 656.726(5)
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 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-006-0036

Response

(1) Consistent with the Board's policy described in OAR 438-005-0035 and subject to 438-006-0045(2), not later than 21 days after the issuance of the Board's Notice of Hearing under OAR 438-006-0020, a party defending against a request for hearing shall, on a form prescribed by the Board, file with the Board and simultaneously serve copies on all other parties a response specifying the respondent's position on the issues raised and relief requested and any additional issues raised and relief requested by the respondent.

(2) Consistent with the Board's policy described in OAR 438-005-0035, amendments may be allowed, subject to a motion by an adverse party for a postponement under OAR 438-006-0081 or a continuance under 438-006-0091. If, during the hearing, the evidence supports an issue or issues not previously raised, the Administrative Law Judge may allow the issue(s) to be raised during the hearing. In such a situation, the Administrative Law Judge may continue the hearing pursuant to OAR 438-006-0091.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.307 & 656.726(5)
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 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-006-0037

Waiver of Notice

A party may waive objection to lack of notice, or a defect in the form of notice, of any issue raised at a hearing.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.307, 656.388, 656.593 & 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

438-006-0045

Motions, Arguments

(1) Except for motions under section (2) of this rule, unless otherwise agreed among the parties and the Administrative Law Judge, pre or post hearing motions shall be filed in writing and copies shall be simultaneously served on all parties or their attorneys.

(2) A party may file a motion for clarification of the issues raised and relief requested by any party in a specification of issues under OAR 438-006-0031 or a response under 438-006-0036.

(3) A motion under section (2) of this rule shall be denied, unless the moving party files a certificate verifying a good faith effort to confer in an attempt to clarify the issues raised and relief requested.

(4) In resolving a motion for clarification under section (2) of this rule, the Administrative Law Judge shall consider the Board's policy described in OAR 438-005-0035.

(5) Failure of a party to reasonably respond to a clarification request may be grounds for a postponement under OAR 438-006-0081 or a continuance under OAR 438-006-0091.

(6) Unless otherwise ordered by the Administrative Law Judge, ten days after filing shall be allowed for written response to a motion.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.307, 656.388, 656.593 & 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; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-006-0050

Preliminary Rulings

The Presiding Administrative Law Judge or his or her delegate shall rule on all preliminary matters.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.307, 656.388, 656.593 & 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; WCB 2-1989, f. 3-3-89, ef. 4-1-89

438-006-0055

Depositions

Depositions of medical or vocational experts are permitted by agreement of the parties, or by approval of an Administrative Law Judge, subject to the provisions of ORS 656.285. Depositions of claimants are permitted in the manner prescribed by ORS 656.262(14). Depositions of other lay witnesses are not permitted over objection unless the Presiding Administrative Law Judge or his or her delegate finds that extraordinary circumstances justify the deposition.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.262(14), 656.388, 656.593 & 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; 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 1-2009, f. 10-7-09, cert. ef. 1-1-10

438-006-0062

Prehearing Conference

(1) In accordance with ORS 656.726(5), an informal prehearing conference may be held by the Hearings Division to:

(a) Expedite claim adjudication;

(b) Amicably dispose of controversies, if possible;

(c) Narrow issues; and

(d) Simplify the method of proof at hearings.

(2) Unless otherwise agreed among the parties and the Administrative Law Judge, the parties shall be given not less than ten days notice of the date of the conference.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5) & 656.283(9)
Hist.: WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

 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.

Stat. Auth.: ORS 656.726(5), 656.283, 656.388
Stats. Implemented: ORS 656, 656.262(11)(a) & (16), 656.283(4)(b), 656.726(5)
Hist.: 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 his/her 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 his/her 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 his/her designee may, in the interests of substantial justice to all parties, bifurcate consolidated requests for hearing or consolidate separately scheduled hearings.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.307, 656.308 & 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; 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 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97

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.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.307, 656.388, 656.593 & 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

438-006-0075

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 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.

Stat. Auth.: ORS 656.726(5) & 656.291(4)
Stats. Implemented: ORS 656.262(4), 656.291 & 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; 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 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-006-0078

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 his or her 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 his or her 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 his or her 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.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.283(1) & 656.726(4)
Hist.: 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.

Stat. Auth.: ORS 656.283(4)
Stats. Implemented: ORS 656.307 & 656.726(5)
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, cert. ef. 4-1-89; WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03

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.

Stat. Auth.: ORS 656.283(4) & 656.726(5)
Stats. Implemented: ORS 656.307 & 656.726(5)
Hist.: WCB 3-1987(Temp), f. 8-27-87, cert. 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 1-2003, f. 2-21-03, cert. ef. 5-1-03

438-006-0095

Change of Administrative Law Judge

(1) Except as provided in section (4) of this rule, an Administrative Law Judge shall disqualify himself or herself from a proceeding in which the Administrative Law Judge’s impartiality reasonably may be questioned, including, but not limited to, instances when:

(a) The Administrative Law Judge has a bias or prejudice concerning a party, a representative, or any other participant in the proceeding before the Administrative Law Judge, or has knowledge, obtained from sources outside the proceeding, of disputed evidentiary facts concerning the proceeding;

(b) The Administrative Law Judge served as a lawyer in the matter in controversy, or a lawyer with whom the Administrative Law Judge previously was associated served during the period of association as a lawyer in the matter, or the Administrative Law Judge or the lawyer has been a material witness in the matter;

(c) The Administrative Law Judge knows that the Administrative Law Judge, individually or as a fiduciary, or the Administrative Law Judge’s spouse, parent or child, wherever residing, or any other person residing in the Administrative Law Judge’s household has a financial interest in the subject matter in controversy, is a party to the proceeding or has any other interest that could be substantially affected by the outcome of the proceeding;

(d) The Administrative Law Judge, the Administrative Law Judge's spouse, parent or child, wherever residing, or any other person residing in the Administrative Law Judge's household:

(A) Is a party to the proceeding, or an officer, director, partner or trustee of a party;

(B) Is acting as a lawyer in the proceeding; or

(C) Is, to the Administrative Law Judge's knowledge, likely to be a material witness in the proceeding.

(2) When an Administrative Law Judge disqualifies himself or herself from a proceeding under this rule, the Administrative Law Judge is not required to disclose the reason or reasons for the disqualification except as required by law.

(3) For purposes of this rule:

(a) “Fiduciary” includes relationships such as personal representative, trustee, conservator and guardian;

(b) “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor or other active participant in the affairs of a party, except that:

(A) Ownership in a mutual or common investment fund that owns securities is not a “financial interest” unless the Administrative Law Judge participates in the management of the fund;

(B) Holding an office in an educational, religious, charitable, fraternal or civic organization is not a “financial interest” in property of the organization;

(C) The proprietary interest of a policy holder in a mutual insurance company, a depositor in mutual savings association, or a similar proprietary interest is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and

(D) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(4) An Administrative Law Judge who would be disqualified under this rule may, rather than disqualify himself or herself from the proceeding, disclose to the parties the basis of the disqualification. If, after such disclosure, any party wishes the Administrative Law Judge to disqualify himself or herself from the proceeding, the Administrative Law Judge shall do so. If, after such disclosure, the parties all agree in writing or on the record that the Administrative Law Judge's impartiality is not in question because of the information disclosed to the parties, the Administrative Law Judge may participate in the proceeding. Any writing signed by or on behalf of all parties shall be incorporated into the record of the proceeding, or, in the case of a mediation, made part of the Administrative Law Judge's mediation file.

(5) Immediately upon discovering the asserted basis, any party may request that an Administrative Law Judge disqualify himself or herself from a proceeding on any basis set forth in section (1) of this rule. If the Administrative Law Judge does not then disqualify himself or herself, any party may promptly file a request for disqualification of the Administrative Law Judge with the Presiding Administrative Law Judge. Such a request shall include an affidavit setting out, in detail, the basis for the requested disqualification.

(6) Following review of the request for disqualification and accompanying affidavit, the Presiding Administrative Law Judge will determine, in his/her discretion, whether a hearing on the allegations in the affidavit shall be held. Following such a hearing or following the Presiding Administrative Law Judge's determination that a hearing will not be held, the Presiding Administrative Law Judge shall issue a written decision concerning the disqualification request. If the Presiding Administrative Law Judge determines that the Administrative Law Judge should be disqualified, the Presiding Administrative Law Judge shall so state and explain the basis for his/her decision, and shall assign another Administrative Law Judge to the case. If the Presiding Administrative Law Judge determines that the Administrative Law Judge should not be disqualified, the Presiding Administrative Law Judge shall so state and explain the basis for his/her decision, and the case shall proceed with the Administrative Law Judge.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
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 2-2005, f. & cert. ef. 11-3-05

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.

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

438-006-0100

Representation by Counsel

(1) Except as permitted by ORS 656.291 and this rule, corporations 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.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5) & 9.320
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1990, f. 1-24-90, cert. ef. 2-28-90; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08

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 his/her designee.

Stat. Auth.: ORS 656.726(4)
Stat. Implemented: ORS 656.726(4)
Hist.: WCB 1-1993, f. 5-19-93, cert. ef. 6-1-93; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90

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 his/her 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.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.308(2)(c)
Hist.: WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

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