BOARD REVIEW; THIRD PARTY ORDERS
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.
Stat. Auth.: ORS
Stats. Implemented: ORS 656.289(3) & 656.295(1)(2)
Hist.: WCB 4-1986, f. 10-8-86, ef. 11-1-86; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1991(Temp), f. 3-28-91, cert. ef. 4-8-91; WCB 5-1991, f. 8-22-91, cert. ef. 9-2-91; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12
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, ORS 656.576 through 656.596. These rules do not apply to proceedings before the Board on its own motion pursuant to ORS 656.278 and proceedings before the Board after remand from an appellate court.
Stat. Auth.: ORS
656.307, 656.388, 656.593 & 656.726(4)
Stats. Implemented: ORS 656.295, 656.307, 656.587 & 656.594
Hist.: WCB 4-1986, f. 10-8-86, ef. 11-1-86; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13
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.
Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.295(5)
Hist.: WCB 4-1986, f. 10-8-86, ef. 11-1-86; WCB 5-1986(Temp), f. 10-30-86, ef. 11-1-86; WCB 1-1987, f. 3-4-87, ef. 4-15-87; WCB 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 2-1995, f. 11-13-95, cert. ef. 1-1-96
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.
Stat. Auth.: ORS
Stats. Implemented: ORS 656.295(5) & 656.726(4)
Hist.: WCB 4-1986, f. 10-8-86, ef. 11-1-86; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 4-1990(Temp), f. 4-13-90, cert. ef. 4-30-90; WCB 10-1990(Temp), f. 10-25-90, cert. ef. 10-27-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1993, f. 5-19-93, cert. ef. 6-1-93; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12
(1) For purposes of OAR chapter 438 division 11, 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.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented.: ORS 656.313(1)(6) & ORS 656.726(4)
Hist.: WCB 2-1991(Temp), f. 3-28-91, cert. ef. 4-8-91; WCB 5-1991, f. 8-22-91, cert. ef. 9-2-91; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
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 he or she has a personal conflict of interest involving a matter or matters directly in issue in the case.
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.
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.
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.
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.
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.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.295(5) & ORS 656.718
Hist.: WCB 5-1986(Temp), f. 10-30-86, ef. 11-1-86; WCB 1-1987, f. 3-4-87, ef. 4-15-87; WCB 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 3-2001, f. 11-14-01, cert. ef. 1-1-02
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.
Stat. Auth.: ORS
656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.587 & 656.593
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13
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.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.576; 656.578, 656.583, 656.591, 656.593
Hist.: WCB 3-2013, f. 12-12-13, cert. ef. 4-1-14
State Archives • 800 Summer St. NE • Salem, OR 97310