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

 

DIVISION 7

EVIDENCE — HEARINGS

438-007-0005

Medical and Vocational and Other Documentary Evidence

(1) To avoid unnecessary delay and expense medical evidence should be presented in the form of written reports and should include:

(a) History of the injury or disease;

(b) Pertinent medical history;

(c) Present complaints;

(d) All sources of history and complaints;

(e) Date of examination;

(f) Findings on examination;

(g) Impairment of physical or mental function including loss of reserve capacity;

(h) Restrictions of activities, such as lifting, bending, twisting, sitting, standing and repetitive use;

(i) Cause of the impairment and opinion whether the impairment is all or in part work related;

(j) Medical treatment indicated;

(k) Likelihood of permanent impairment and opinion whether the condition is likely to change; and

(l) The reason for the opinion.

(2) The insurer or self-insured employer may subpoena the claimant's attending or consulting physician(s) and vocational expert(s) for cross-examination. Medical, surgical, hospital and vocational reports offered by the insurer or self-insured employer will also be accepted as prima facie evidence provided the insurer or self-insured employer agrees to produce the medical and vocational expert(s) for cross-examination upon request of the claimant. The reports of any medical or vocational expert who has refused to make herself or himself available for cross-examination shall be excluded from the record unless good cause is shown why such evidence should be received. The cost of cross-examination of any medical or vocational expert(s) under this section shall be paid by the insurer or self-insured employer.

(3) To avoid unnecessary cost and delay, the Board encourages the use of written interrogatories or depositions to secure medical or vocational expert testimony.

(4) The Administrative Law Judge may appoint a medical or vocational expert to examine the claimant and to file a report with the Administrative Law Judge. The parties may also agree in advance to be bound by such expert's findings. The cost of examination and reports under this rule shall be paid by the insurer.

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(4)
Stats. Implemented: ORS 656.287 & 656.310(2)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 1-1987, f. 3-4-87, ef. 4-15-87; WCD 2-1987(Temp), f. 4-13-87, ef. 4-15-87; WCB 4-1987, f. 11-6-87, ef. 11-16-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-007-0010

Competency of Vocational Experts

Vocational reports and testimony are admissible as expert opinion evidence if the Administrative Law Judge finds the author or witness to be qualified as an expert or if the parties stipulate to the author's or witness' qualifications as an expert in vocational assistance matters.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.287
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88

438-007-0015

Entitlement to Claims Information — Disclosure Require?ments

(1) With respect to a claim for workers' compensation benefits and as used in this section, references to the insurer and the claimant include persons acting on their behalf, and references to the insurer include the self-insured employer, claims processing agents and assigned claims processing agents for non-complying employers.

(2) Documents pertaining to claims are obtained by mailing or delivering a copy of the Request for Hearing, or a written demand accompanied by an attorney retention agreement or medical information release, to the insurer. Within 15 days of said mailing or delivering, the insurer shall furnish the claimant and other insurers, without cost, originals or legible copies of all medical and vocational reports and other documents pertaining to the claim(s) as specified below.

(3) Upon written demand by the insurer, the claimant shall within 15 days of the mailing or delivering of the demand, furnish to the insurer, without cost, originals or legible copies of all medical and vocational reports and other documents pertaining to the claim(s) as specified below, which the claimant did not receive from the insurer (or self-insured employer) making the demand. In cases involving multiple insurers, an insurer shall seek discovery in accordance with section (9) of this rule.

(4) Documents acquired after the initial exchanges shall be provided to the insurer(s) and the claimant within seven days after the disclosing party's receipt of the documents.

(5) For the purpose of this rule, "documents pertaining to the claim(s)" or any variation thereof means documents and recordings, whether written or electronic or in any other form, which consist of the following items applicable to the workers' compensation claim:

(a) Medical and vocational reports, including any correspondence to and from the medical and vocational experts who provide the reports or who agree to testify on behalf of the party sending correspondence;

(b) Official forms and notices required by ORS Chapter 656, the Workers' Compensation Division or the Workers' Compensation Board, as they relate to the claim(s);

(c) Investigative statements, including a party's statement, and investigative summaries;

(d) Correspondence to and from the Workers' Compensation Division and the Workers' Compensation Board; and

(e) Upon specific request, records of all compensation paid, payroll records, records or statements of wages earned by the claimant, and copies of bills from medical and vocational service providers rendering treatment or services to the claimant.

(6) After the disclosure required by this rule, either the claimant or the insurer may request further specific discovery of other factual documents relevant and material to an issue raised by the Request for Hearing or the Response thereto, or any other issue which thereafter arises and is subject to the jurisdiction of the Workers' Compensation Board.

(7) Notwithstanding any other provision of this section, the following documents pertaining to the claim(s) are not discoverable:

(a) Material protected under the attorney/client privilege as defined in Oregon Rules of Evidence ORS 40.225 Rule 503;

(b) Material which is the work product of any attorney, except that correspondence and any inclusions sent to a medical or vocational expert who writes a report that is otherwise subject to disclosure under these rules or who agrees to testify at the request of the corresponding party shall be discoverable under subsection (5)(a) of this rule;

(c) Material reflecting the mental impressions, case value or merit, plans or thought processes of the claimant or insurer;

(d) Material protected by ORS 656.260; and

(e) Material protected from disclosure under OAR 438-007-0017 (impeachment).

(8) It is the express policy of the Board to promote the full and complete discovery of all relevant facts and expert opinion bearing on a claim being litigated before the Hearings Division, consistent with the right of each party to due process of law. Failure to comply with this rule, if found to be unreasonable or unjustified, may result in the imposition of penalties and attorney fees, exclusion of evidence, continuance of a hearing (subject to OAR 438-006-0091), and/or dismissal of a request for hearing.

(9) When a new party is joined into existing litigation, the disclosure of discoverable documents and the exhibit list shall be made available to the new party by the insurer with the lowest WCB case number. This disclosure shall be made as soon as reasonable but no later than 15 days from the insurer's receipt of notice of the joinder of the new party.

(10) Any dispute under this rule regarding whether something is discoverable, in whole or in part, will be resolved by the assigned Administrative Law Judge or the designee of the Presiding Administrative Law Judge.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.307 & 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; Suspended by WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-1997, f. 12-12-97, cert. ef. 3-1-98; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12

438-007-0016

Disclosure of Expert Witness Required

Within the times provided for the initial exchanges of exhibits and indexes under OAR 438-007-0018 each party shall disclose to all other parties the identity of each expert witness the party will call to testify at the hearing. A statement by a party that the party "reserves the right," or similar language, to call as a witness any expert whose opinion has been included in the documents filed in the case is not compliance with this rule. At the hearing the Administrative Law Judge may, in his or her discretion, allow the testimony of expert witnesses not disclosed as required by this rule. In the exercise of this discretion, the Administrative Law Judge shall determine whether material prejudice has resulted from the timing of the disclosure and, if so, whether there is good cause for the failure to timely disclose that outweighs the prejudice to the other party or parties.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.726(4)
Hist.: WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89

438-007-0017

Impeachment Evidence

(1) Impeachment evidence is material which:

(a) Attacks the capacity of the witness to perceive, recall or recount;

(b) Tends to establish that the witness has a character for untruthfulness;

(c) Establishes prior convictions for felonies or crimes involving false statement or dishonesty;

(d) Tends to establish bias;

(e) Reveals a prior material inconsistent statement;

(f) Reveals material contradictions in statements made by the witness;

(g) Attacks the expertise of a witness through learned treatises.

(2) Impeachment evidence consisting of medical or vocational reports not used during the course of the hearing must be provided to any opposing party at the conclusion of the presentation of evidence and before closing arguments are presented. Any other withheld impeachment evidence is not subject to disclosure.

(3) Impeachment evidence shall not be considered by the Administrative Law Judge as substantive evidence, unless the opposing party offers any withheld evidence as substantive evidence.

Stat. Auth.: ORS 656.726(4) & ORS 654.025(2)
Stats. Implemented: ORS 656.726(4)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-1997, f. 12-12-97, cert. ef. 3-1-98

438-007-0018

Exchange and Admission of Exhibits at Hearing

(1) Not later than 28 days before the hearing, the insurer or self-insured employer shall provide the claimant and other insurer or self-insured employer legible copies of all documents that are relevant and material to the matters in dispute in the hearing, together with an index. The index shall include the document numbers, description of each document, author, number of pages and date of the document. The documents shall be arranged in chronological order and numbered, in Arabic numerals, in the lower right corner of each page, beginning with the document of earliest date. The numbers shall be preceded by the designation "Ex," and pagination of multiple-page documents shall be designated by a hyphen followed by the page number. For example, page two of document two shall be designated "Ex 2-2." A physician's chart notes constitute a multi-page document to the extent that the date of each individual chart note is subsequent to the date of the preceding exhibit and is earlier than the date of the next exhibit. However, for deposition transcripts, only the cover page of the deposition need be numbered; i.e., "Ex. 3."

(2) Not less than 14 days before the hearing, or within seven days of receipt of the insurer document index and documents, whichever is later, the claimant shall provide the insurer(s) or self-insured employer(s) legible copies of any additional documents that are relevant and material to the matters in dispute in the hearing. The additional documents shall be marked and accompanied by a supplemental document index, prepared in the same manner as the insurer documents and index and numbered to coincide in chronological order with the insurer's documents. Letter subdesignations shall be used to ensure chronological numbering. For example, a document which is chronologically between documents six and seven of the insurer documents shall be designated "Ex 6A."

(3) Before or at the hearing, the parties shall delete from their indexes and packets of documents those documents which are cumulative, or which no party can in good faith represent to be relevant and material to the issues, and the revised indexes and packets of documents shall be submitted to the Administrative Law Judge. For compliance with this rule, it is sufficient for the parties to mark neatly through the index description of the documents not being offered in evidence with ink, and to remove the corresponding documents from the packets submitted to the Administrative Law Judge.

(4) Filing of the documents described in section (1) shall not establish that:

(a) The insurer or self-insured employer is the sponsor for each of these documents for purposes of admission into the evidentiary record; or

(b) The claimant is automatically entitled to cross-examine the author of any document filed by the insurer or self-insured employer under section (1).

(5) Subject to ORS 656.287(l), at the hearing the Administrative Law Judge may in his or her discretion allow admission of additional medical reports or other documentary evidence not disclosed as required by OAR 438-007-0015. In the exercise of this discretion, the Administrative Law Judge shall determine whether material prejudice has resulted from the timing of the disclosure and, if so, whether there is good cause for the failure to timely disclose that outweighs any prejudice to the other party or parties. Following a finding of material prejudice, the Administrative Law Judge may exclude a document or continue the hearing for such action as is appropriate to cure the material prejudice caused by the late disclosure of the document.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-007-0019

Testimony at Hearings

All testimony at the hearing shall be upon oath or affirmation administered by the Administrative Law Judge.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.726(2)(b)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88

438-007-0020

Subpoenas; Witness Fees

(1) Whenever a party has requested a hearing, a subpoena may be issued to compel:

(a) Attendance and testimony at a hearing; or

(b)The production of documentary or physical evidence under a witness' control at or before a hearing.

(2) Subpoenas may be issued by an Administrative Law Judge or the attorney of record of a party. Upon request, the Hearings Division shall provide blank subpoenas.

(3) Subpoenas issued on behalf of a party may be served by the party or the party's representative. Service may be made in person or by certified mail or other mail that provides for a receipt signed by the recipient.

(4) Subpoenas shall be served far enough in advance of an appearance to allow the witness or party a reasonable time to comply with the subpoena or to file an objection.

(5) Witness fees and mileage shall be provided at the time the subpoena is served, in the amount provided for in civil actions.

(6) "Individually identifiable health information," as defined in ORCP 55(H)(1)(a), may be obtained through a subpoena under the following procedures:

(a) At the time a subpoena for individually identifiable health information is issued, the party issuing the subpoena must serve a copy of the subpoena to the party or the attorney for the party whose individually identifiable health information is being subpoenaed. Such service shall be as provided in section (3) above.

(b) The subpoena shall provide notice to the person or the person's attorney, if represented, whose individually identifiable health information is being subpoenaed of the extent of the information being sought, and shall describe the procedure for submitting a timely objection to the disclosure of such information. The subpoena shall include the following in prominent or boldface type:

"IF YOU OPPOSE THE DISCLOSURE OF THE INFORMATION INCLUDED IN THIS SUBPOENA, YOU MUST FILE A WRITTEN OBJECTION, WITH THE WORKERS' COMPENSATION BOARD, 2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1280. YOUR OBJECTION MUST BE FILED WITHIN SEVEN (7) CALENDAR DAYS OF THE MAILING DATE OF THIS NOTICE, AND MUST STATE THAT YOU OBJECT TO THE RELEASE OF THE INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION, THE BASIS FOR YOUR OBJECTION, YOUR ADDRESS, AND THE DATE OF YOUR INJURY IF YOU KNOW THE DATE. A COPY OF YOUR LETTER MUST ALSO BE PROVIDED SIMULTANEOUSLY TO THE RECIPIENT OF THE SUBPOENA, AS WELL AS TO THE PARTY ISSUING THE SUBPOENA. IF YOU HAVE QUESTIONS YOU MAY CALL THE WORKERS' COMPENSATION BOARD AT (503) 378-3308 OR TOLL-FREE AT 1-877-311-8061, OR THE OMBUDSMAN FOR INJURED WORKERS TOLL-FREE AT 1-800-927-1271."

(c) The subpoena must also contain the following certification: "I certify that I mailed a copy of this subpoena to [the person or the person's attorney, if represented] at [address] on [date] by certified mail return receipt requested."

(d) "File," as used in this section, has the same meaning as OAR 438-005-0046.

(e) If the person whose individually identifiable health information is being subpoenaed does not timely object or waives any objection, the recipient of the subpoena shall comply with the subpoena.

(f) If the recipient of the subpoena receives a timely objection from the party whose individually identifiable health information is being subpoenaed, the recipient shall comply with the subpoena by mailing the information sought to the Workers' Compensation Board, at 2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1280.

(g) If the person whose individually identifiable health information is being subpoenaed timely objects, an expedited pre-hearing conference will be conducted under the provisions of ORS 656.283.

(h) A party who receives information under this section is required to disclose that information under OAR 438-007-0015.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.283(8), 656.724(4) & 656.726(2)(c)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 1-2005, f. 6-29-05, cert. ef. 9-1-05; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-007-0022

Manner of Taking Testimony of Lay Witnesses

(1) Testimony of lay witnesses shall be taken by personal appearance of the witness before the Administrative Law Judge at the hearing.

(2) When a lay witness is unable to attend the hearing due to extraordinary circumstances beyond the control of the party offering the testimony and the testimony of the witness cannot be taken by deposition, the Administrative Law Judge may allow testimony to be taken in any manner that will afford substantial justice and insure a complete and accurate record of all examination and testimony.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.726(2)(d)
Hist.: WCB 6-1987(Temp), f. & ef. 12-18-87; WCB 1-1988, f. & ef. 6-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

438-007-0024

Offers of Proof

Whenever the Administrative Law Judge excludes a document or the testimony of a witness, the party adversely affected may make an offer of proof for the record in a form determined by the Administrative Law Judge.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03

438-007-0023

Order of Presentation of Evidence and Argument at Hearing

The party bearing the burden of proof on an issue in a hearing has the right of first and last presentation of evidence and argument on the issue.

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

438-007-0025

Reconsideration

(1) The Administrative Law Judge may reopen the record and reconsider his or her decision before a request for review is filed or, if none is filed, before the time for requesting review expires. Reconsideration may be upon the Administrative Law Judge's own motion or upon a motion by a party showing error, omission, misconstruction of an applicable statute or the discovery of new material evidence.

(2) A motion to reconsider shall be served on the opposite parties by the movant and, if based on newly discovered evidence, shall state;

(a) The nature of the new evidence; and

(b) An explanation why the evidence could not reasonably have been discovered and produced at the hearing.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.283(7) & ORS 656.726(4)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88

438-007-0027

Hearing for Purpose of Own Motion Recommendation

(1) Where the Administrative Law Judge determines that an issue(s) raised by a party is within the Board's Own Motion jurisdiction, the Administrative Law Judge may proceed with a fact-finding hearing or other proceeding that the Administrative Law Judge deems achieves substantial justice (without notifying or requesting permission from the Board prior to going forward with such a fact-finding hearing or other proceeding) for the purpose of providing an unappealable recommendation to the Board regarding the issue(s) within the Board's Own Motion jurisdiction.

(2) If the Administrative Law Judge chooses to proceed with a fact-finding hearing or other proceeding as described in section (1), the Administrative Law Judge shall:

(a) Make findings of fact and conclusions of law regarding the Own Motion issue(s) within the time required to issue any appealable order in the related case issued regarding matters within the Administrative Law Judge's jurisdiction; and

(b) Forward to the Board a separate, unappealable recommendation with respect to the Own Motion issue(s) and a copy of any appealable order in the related case issued regarding matters within the Administrative Law Judge's jurisdiction.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03

438-007-0030

Unofficial Recording of Hearing Prohibited

An Administrative Law Judge shall prohibit broadcasting, televising, sound or video recording and the taking of photographs within the hearing room and of events in the hearing room from outside the hearing room while the hearing is in session and during recesses between sessions, except sound recording of a hearing by the Administrative Law Judge or an official hearing reporter for the purpose of making a record of the hearing. To the extent the Administrative Law Judge deems necessary, the same prohibitions may be applied to areas immediately adjacent to the hearing room where the activities may interrupt or interfere with entry to or exit from the hearing room, distract or disturb proceedings within the hearing room or otherwise interfere with the conduct of the hearing.

Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.283(7) & ORS 656.726(4)
Hist.: WCB 1-1988, f. & ef. 6-1-88

438-007-0040

Electronic Documents

(1) If any party, in the regular course of the party's business or activity, has kept or recorded any memorandum, writing, entry, print, reproduction or a combination thereof, of any act, transaction, occurrence or event, and in the regular course of the party's business or activity has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, optical imaging or other process that accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself whether the original is in existence or not at the time a party introduces into evidence such reproduction. The introduction of a reproduced record, enlargement or facsimile does not preclude admission of the original.

(2) If a party introduces into evidence a reproduction described in subsection (1), the exhibit index described in OAR 438-007-0018 will include the following certification: "The attached exhibits contain reproductions as described in 438-007-0040. I hereby certify that the reproductions were created in the regular course of a party's business or activity."

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5) & ORS 656.283(7)
Hist.: WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02

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