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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 82

RULES OF PRACTICE AND PROCEDURE FOR APPEALS UNDER
THE COMPENSATION ACT FOR VICTIMS OF CRIME

438-082-0001

Statutory Authority; Adoption Procedures

(1) The statutory authority for the adoption of these rules is ORS 656.726(5) and 147.155.

(2) These rules are adopted in accordance with ORS Chapter 183 and the Attorney General’s Model Rules of Procedure applicable to rulemaking functions.

Stat. Auth.: ORS 183.310 - 183.410, 147.155(5) & 656.726(4)
Stats. Implemented: ORS 147.155 & 656.726(4)
Hist.: WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0005

Applicability; Effective Date; Repeal of Prior Rules

(1) These rules apply to victims or dependents of deceased victims who apply for compensation under the Compensation Act for Victims of Crime (ORS Chapter 147 and OAR 137-076-0005, et seq.)

(2) These rules are effective September 1, 1986, and apply to all appeals pending at that time, regardless of the the date of injury.

(3) OAR 438-082-0000 through 438-082-0045, effective May 1, 1978 are hereby repealed.

Stat. Auth.: ORS 183.310 - 183.410, 147.155(5) & 656.726(4)
Stats. Implemented: ORS 147.155 & 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0010

Definitions

(1) "Applicant" means any person who applies to the Department for Compensation under the Compensation Act for victims of Crime (ORS Chapter 147 and OAR 137-076-0005 et seq.).

(2) "Board" means the Workers' Compensation Board.

(3) "Department" means the Department of Justice.

(4) "Interested person" means an applicant, the Department and any other persons named and admitted as a full participant in an appeal.

Stat. Auth.: ORS 183.310 – ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0015

Request for Review by Board

(1) The request for Board review of a decision of the Department shall be in writing, signed by the applicant and mailed to the Board at 2601 25th Street SE, Suite 150, Salem, Oregon 97302-1282, and shall contain the applicant's mailing address and telephone number, if applicant has a telephone.

(2) The request for Board review should contain a brief statement of the reasons the applicant disagrees with the decision of the Department; however, the failure of an applicant to comply with this subsection shall not be cause for dismissal of the request for review.

Stat. Auth.: ORS 183.310 - ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86; WCB 1-1999, f. 8-24-99, cert. ef. 11-1-99

438-082-0020

Notification of Department; Premature Request for Review

(1) The Board shall forthwith notify the Department in writing of the request for review and shall mail a copy of the request for review to the Department. If the Department has not yet reconsidered its initial order under the provisions of ORS 147.145, the request for review shall be deemed to be a request for reconsideration by the Department. Upon receipt from Board of such a premature request for review, the Department shall forthwith notify the Board and the applicant and shall proceed to reconsider the order pursuant to 147.145.

(2) The Department may file a response to the request for review.

Stat. Auth.: ORS 183.310 – ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0025

Acknowledgement of Request for Review; Record

(1) The Board shall forthwith notify the applicant of its receipt of the request for review. The notice shall direct the applicant to inform the Board not later than 15 days after the mailing of the record by the Department whether the applicant requests a fact finding hearing and, if a hearing is requested, what findings of fact, conclusions or portions of the Department's order are contested.

(2) Not later than 15 days after mailing of notification of the request for review to the Department, the Department shall file with the Board a certified copy of the entire Department record, including an index of all items contained in the record. The Department shall simultaneously mail to the applicant a certified copy of the record, except that any material deemed confidential by the Department may be excluded from the copy of the record mailed to the applicant. If confidential material in excluded from the copy of the record mailed to the applicant, the applicant shall be informed that material has been excluded from the applicant's copy of the record on the basis of its confidentiality.

(3) Upon receipt and review of the record, the Board may release additional material to the applicant or may declare additional material confidential.

Stat. Auth.: ORS 183.310 – ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0030

Standard of Review; Review Without Hearing

(1) The standard of review by the Board shall be de novo upon the entire record.

(2) If the applicant does not request a fact finding hearing within 15 days of the mailing of the record, the review shall be confined to the record filed by the Department and any written argument filed by the interested parties. The applicant's written argument, if any, must be filed with the Board not later than 30 days after the mailing of the record to be considered. The Department shall be allowed 15 days from the filing of the applicant's written argument to file its response, or, of the applicant files no written argument, the Department's written argument, if any, shall be filed not later than 45 days after the mailing of the record.

Stat. Auth.: ORS 183.310 – ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0035

Fact Finding Hearing

(1) If the applicant requests a fact finding hearing, the Board may appoint a special hearings officer to preside over the hearing.

(2) Any person considered necessary by the Board or its special hearings officer for a full determination of all issues shall be joined as a party to the hearing.

(3) The Board or its special hearings officer shall give not less than ten (10) days written notice of the hearing to all interested parties.

(4) Postponement of a scheduled hearing shall be requested as soon as possible and may be allowed by the Board or it special hearings officer upon reasonable justification. A special hearings officer may postpone a hearing at the convenience of the Board. Postponed hearings shall be rescheduled upon not less than ten (10) days written notice to all interested parties.

(5) The hearing shall be held at Salem, Oregon, unless in the judgment of the Board the holding of the hearing at some other place would avoid undue hardship to an interested party.

(6) A prehearing conference may be conducted by the Board or its special hearings officer for the purpose of simplifying and clarifying the issues or expediting the proceeding. A prehearing conference may be conducted by telephone conference call.

Stat. Auth.: ORS 183.310 – ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0040

Conduct of Hearing; Evidence; Proposed Order; Notice to Parties

(1) A record of all proceedings shall be made, except that no record need be made of prehearing conferences. The record shall be transcribed only by order of the Board.

(2) Subject to sections (3) and (7) of this rule, the hearing may be conducted in any manner reasonably calculated to achieve substantial justice.

(3) The entire record filed by the Department with the Board shall be received into evidence. No other documentary evidence shall be received. Only those persons whose statements were considered by the Department in reaching its decision shall be permitted to give testimony. Subject only to these limitations, there are no formal or technical rules of evidence; however, evidence may be excluded if it is irrelevant or unduly repetitious.

(4) If the applicant fails to appear at the requested hearing, the special hearings officer shall forthwith issue an order requiring the applicant to show cause in writing within ten days why the applicant's request for Board review of Department's decision should not be dismissed as having been abandoned. If no or an insufficient response is received to the order to show cause, the Board may dismiss the applicant's request for review of Department's decision or may take such other action as it deems appropriate.

(5) Not more than 30 days after the conclusion of the hearing, the special hearings officer shall file with the Board all documentary evidence received together with written findings of fact, conclusions, and a proposed order. Copies of the written findings of fact, conclusions and proposed order shall be simultaneously mailed to all interested parties.

(6) The proposed order shall contain the following notice:

"NOTICE TO ALL PARTIES: This order will be reviewed automatically by the Workers' Compensation Board within 30 days and will become a final order of the Workers' Compensation Board 30 days from the mailing date of this order unless this order is sooner withdrawn or modified by the Board. Objections to this proposed order must be in writing and filed with Workers' Compensation Board, 2601 25th Street SE, Suite 150, Salem, OR 97302-1282 within 20 days from the date of this order to be considered."

(7) Hearings under these rules shall be open to the public except:

(a) The Board or a special hearings officer shall close the hearing to the public upon the motion or request of an applicant or, if the applicant is a minor, a parent or guardian of the applicant, for any of the reasons set forth in ORS 147.115(1); and

(b) The Board or a special hearings officer may close the hearing to the public upon the motion or request of an interested party other than the applicant or upon its or his or her own motion for any of the reasons set forth in ORS 147.115(1).

Stat. Auth.: ORS 183.310 - ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Stats. Implemented: ORS 147.155 & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86; WCB 1-1999, f. 8-24-99, cert. ef. 11-1-99

438-082-0045

Board Decision

(1) In cases in which the Board's decision is made upon a review of the record and written argument only, the Board will issue its decision in writing within a reasonable time. The decision shall be mailed to all interested parties.

(2) In cases in which a hearing is held, the Board shall within 30 days of receipt of the record from the special hearings officer review the record together with the findings of fact, conclusions and proposed order. Unless sooner withdrawn or modified by the Board, the findings of fact, conclusions and proposed order of the Board's special hearings officer shall be a final order of the Board 30 days after the filing of the proposed order with the Board and mailing to interested parties pursuant to OAR 438-082-0040(5).

Stat. Auth.: ORS 183.310 – ORS 183.410, ORS 147.155(5) & ORS 656.726(4)
Hist.: WCB 5-1978, f. 4-14-78, ef. 5-1-78; WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0050

Reconsideration; No Further Review

(1) Upon its own motion or the request of any interested party, within 30 days after a final decision of the Board the Board may withdraw its decision for reconsideration. On reconsideration, the Board may affirm its previous decision, issue a new order or make such other disposition of the case as it deems justified.

(2) An order on reconsideration shall contain the following notice:

“Notice to all parties: This order is final and is not subject to further reconsideration or administrative or judicial review.”

Stat. Auth.: ORS 183.310 - 183.410, 147.155(5) & 656.726(4)
Stats. Implemented: ORS 147.155 & 656.726(4)
Hist.: WCB 3-1986, f. 8-28-86, ef. 9-1-86

438-082-0055

Representation by Counsel; Charging of Fee Prohibited

(1) The Department shall be represented in all proceedings under these rules by the Department of Justice.

(2) Any other interested party may be represented by an attorney who is member of the Oregon State Bar.

(3) No applicant shall be charged any fee for any purpose, including legal representation, in any proceeding under these rules. (ORS 147.315.)

Stat. Auth.: ORS 183.310 - 183.410, 147.155(5) & 656.726(4)
Stats. Implemented: ORS 147.155 & 656.726(4)
Hist.: WCB 3-1986, f. 8-28-86, ef. 9-1-86

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