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

 

DIVISION 85

RULES OF PRACTICE AND PROCEDURE FOR
CONTESTED CASES UNDER THE OREGON SAFE EMPLOYMENT ACT

 

Scope; Policy; Definitions

438-085-0006

Scope; Authority

(1) These rules (OAR 438-085-0006 to 438-085-0870) govern practice and procedure for all contested cases under the Act.

(2) These rules are authorized by the Act and by ORS Chapters 656 and 183.

(3) The model rules of procedure adopted by the Attorney General pursuant to ORS 183.341 shall not apply to contested cases under the Act.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025(2)
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0010

Effective Date; Applicability

These rules are effective March 1, 1998 and shall apply to all requests for hearing pending on or after that date.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 654.025(2)
Hist.: WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0017

Board Policy; Liberal Construction

(1) It is the policy of the Board to provide for the prompt and fair disposition of contested cases, encourage settlements, formal and informal, consistent with the purposes of the Act, and provide an impartial forum for hearings on cases that cannot be resolved between the parties.

(2) These rules shall be liberally construed to carry out the policy of the Board and the purposes of the Act.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025(2) & ORS 654.003
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0021

Number

For the purpose of these rules, the singular includes the plural and the plural includes the singular.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025(2)
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82

438-085-0026

Definitions

For the purpose of these rules, unless the context otherwise requires, the following definitions apply:

(1) "Act": The Oregon Safe Employment Act (ORS 654.001 to 654.295, 654.750 to 654.780, and 654.991).

(2) "Administrative Law Judge": An Administrative Law Judge of the Hearings Division who is a member of the Oregon State Bar.

(3) "Affected Employee": An employee who, in the course and scope of the employee's employment, may be or may have been exposed to a condition or practice described in a Citation, Correction Order or Variance.

(4) "Authorized Representative" means "authorized representative" as used in ORS 654.290(2)(d) or "representative of such employees" as used in ORS 654.078(2), and includes a bargaining unit representative, or an individual selected by employees who serves as their spokesperson.

(5) "Board": The Workers' Compensation Board created by ORS 656.712.

(6) "Citation": A document issued by OR-OSHA pursuant to ORS 654.071 to allege a violation. A citation may include a notice of penalty and a correction order.

(7) "Contested Case": A dispute in which an request for hearing has been filed.

(8) "Correction Order": A written OR-OSHA order which directs a person to stop an alleged violation within a given period of time. The term also includes a Red Warning Notice posted pursuant to ORS 654.082.

(9) "Division": The Workers' Compensation Division of the Department of Consumer and Business Services created by ORS 656.708.

(10) "Director": The Director of the Department of Consumer and Business Services.

(11) "Document": Any notice, form, letter or other writing, photograph, audiotape, videotape, or other tangible item relating to a contested case.

(12) "Employee": Any individual, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, financial or otherwise, subject to the direction and control of an employer, and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, or any individual who is provided with workers' compensation coverage as a subject worker pursuant to ORS Chapter 656, whether by operation of law or by election. See ORS 654.005(5).

(13) "Employer": Any person who has one or more employees, or any sole proprietor or member of a partnership who elects workers' compensation coverage as a subject worker pursuant to ORS 656.128. See ORS 654.005(6).

(14) "Filed": A request for hearing will be considered filed when it is either actually received at any permanently staffed office of the Department of Consumer and Business Services, or when it is mailed if mailing is established by receipt of registered or certified mail bearing the stamp of the United States Postal Service showing the date of mailing. All other documents will be considered filed when mailed to or received by the Hearings Division, whichever occurs first.

(15) "Hearing": A formal, reported proceeding before an Administrative Law Judge of the Hearings Division where the parties to a contested case may present their evidence and arguments on the issues.

(16) "Hearings Division": The Hearings Division of the Board.

(17) "OR-OSHA": The Oregon Occupational Safety and Health Division of the Department of Consumer and Business Services."

(18) "Party": A person named or admitted as a full participant in a contested case. The term includes OR-OSHA, a necessary party to all contested cases under the Act.

(19) "Penalty": The dollar amount proposed in a written notice by OR-OSHA as the Director's assessment against a person for an alleged violation.

(20) "Person": One or more individuals, legal representatives, partnerships, joint ventures, association, corporations (whether or not organized for profit), business trusts, or any organized group of persons, including the state, state agencies, counties, municipal corporations, school districts and other public corporations or subdivisions. See ORS 654.005(7).

(21) "Presiding Administrative Law Judge": The Administrative Law Judge who presides over and administers the Hearings Division, as provided in ORS 656.724.

(22) "Representative": Any individual authorized by a party to represent the party in a contested case.

(23) "Request for Hearing": A written request for a hearing to contest a citation, notice or order issued by OR-OSHA.

(24) "Settlement": A written agreement which, when approved by all parties, will amend the contested OR-OSHA citation, notice or order and dispose of some or all issues in the case.

(25) "Variance": The written authority given by OR-OSHA to an employer to permit the employer to use a specific alternative means or method to comply with the intent of an Oregon occupational safety or health law or rule.

(26) "Violation": The breach of a person's duty to comply with an Oregon occupational safety or health law, rule or order.

(27) "Withdrawal": A party's complete and unconditional abandonment of some or all of its allegations and contentions in a contested case.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025(2) & ORS 654.005
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 7-1987, f. 12-23-87, ef. 1-1-88; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

Filing Appeals

438-085-0111

Form and Content of Request For Hearing

(1) A request for hearing does not have to be in any special form, but it must:

(a) Identify the particular citation, notice or order that is appealed from, and the person to whom it was issued;

(b) Specify each alleged violation, penalty, correction order, or other OR-OSHA action that is contested;

(c) State the grounds upon which the request for hearing is based; and

(d) Clearly indicate whether the requesting party wants to participate in OR-OSHA's informal settlement process.

(e) Clearly indicate whether the period of time fixed for correction of a serious violation is being contested.

(2) A request for hearing should include the name, address and telephone number of the requesting party and of the party's representative, if any.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025(2) & ORS 654.078(1)(2)
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0116

Where to File a Request For Hearing

All requests for hearing shall be filed with the Department of Consumer and Business Services, and should be directed to the Oregon Occupational Safety and Health Division at 350 Winter St. NE, Room 430, Salem, Oregon 97310, or with any permanently staffed office of the Workers' Compensation Board or OR-OSHA.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025(2) & ORS 654.078(1)
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 7-1987, f. 12-23-87, ef. 1-1-88; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0131

Computing Time Periods

Time periods required or allowed by the Act or these rules shall be computed in calendar days. The first full day after the time begins to run is counted as the first day. If the last day is a Saturday, Sunday, or State holiday, the period runs until the end of the next business day.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025(2)
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0141

Untimely Requests For Hearing

(1) If OR-OSHA alleges that a request for hearing was not filed timely, the case shall promptly be transmitted to the Hearings Division for a determination of that issue.

(2) If an Administrative Law Judge finds that a request for hearing was not filed timely, and that the Hearings Division lacks jurisdiction to grant a hearing on the merits of the case, the Administrative Law Judge shall issue an order dismissing the request for hearing.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 654.025 & ORS 654.078(1-3)
Hist.: WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98 Renumbered from 438-085-0216

 

Jurisdiction Over Appeals: Untimely Appeals

438-085-0200

Special Definitions

For the purpose of mediations conducted by the Board, unless the context otherwise requires, the following definitions apply:

(1) Mediation. A voluntary process for resolving disputes by which a mediator assists two or more parties to a controversy in reaching a mutually acceptable resolution.

(2) Mediator. An Administrative Law Judge whose role is to assist the parties in resolving their dispute by mutual agreement. The mediator has no authority to decide the outcome of the controversy or to force settlement upon the parties.

(3) Party. For purposes of OAR 438-085-0200 through 438-085-0260, "party" means any person identified in 438-085-0026(18) and any other person identified by the mediator as necessary to the mediation.

Stat. Auth: ORS 654.025(2) & 654.078
Stats. Implemented: ORS 183.502
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0210

Mediator Qualifications

(1) A mediator shall have completed at least 30 hours of basic mediation training and hold a certificate demonstrating such training.

(2) Such training shall address the following areas as outlined in OAR 718-040-0040(3):

(a) Active listening, empathy and validation;

(b) Sensitivity to and awareness of cross-cultural issues;

(c) Maintaining neutrality;

(d) Identifying and reframing interests and issues;

(e) Establishing trust and respect;

(f) Using techniques to achieve agreement and settlement, including creating a climate conducive to resolution, identifying options, working toward agreement, and reaching consensus;

(g) Shaping and writing agreements; and

(h) Ethical standards for mediator conduct adopted by state and national organizations.

Stat. Auth.: ORS 654.025(2) & ORS 654.078
Stats. Implemented: ORS 183.502
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0216

Untimely Appeals

(1) If OR-OSHA alleges that an appeal was not timely filed, the case shall be referred to the Hearings Division to give the parties an opportunity for a hearing on that issue, upon the request of one or more parties.

(2) If an Administrative Law Judge finds that an appeal was not timely filed, and that the Hearings Division lacks jurisdiction to grant a hearing on the merits of the case, the referee shall issue an order dismissing the appeal.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 654.025 & ORS 654.078(1-3)
Hist.: WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95

438-085-0220

Standards of Mediator Conduct

(1) Mediators have duties to the parties, to their profession, and to themselves. They shall be honest and unbiased, act in good faith, be diligent, and never seek to advance their own interests at the expense of the parties.

(2) The mediator must maintain impartiality toward all parties. Impartiality means a commitment to serve all mediation parties as opposed to a single party. The mediator shall disclose to the parties any affiliations which the mediator may have with any participant and obtain all parties' consent to proceed as mediator.

(3) The mediator has an obligation to assure that all parties understand the nature of the mediation process, the procedures to be utilized, and the particular role of the mediator. Each party's consent to proceed with mediation should be obtained early, prior to the beginning of substantive negotiations.

(4) The mediator shall inform the parties of their rights to withdraw from mediation at any time and for any reason. If the mediator believes that the parties are unable or unwilling to participate effectively in the mediation process, the mediator should suspend or terminate the mediation. If the parties reach a final impasse, the mediator should not prolong unproductive discussions.

Stat. Auth.: ORS 654.025(2) & ORS 654.078
Stats. Implemented: ORS 183.502
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0240

Standards of Conduct for Representatives and Parties

(1) A party may attend a mediation personally or through a representative.

(2) A party or its representative shall come to the mediation with authority to settle the issues, or bring with them or otherwise make available that person or those persons who have such authority.

(3) By consenting to mediation, all parties and their representatives agree to bargain in good faith.

Stat. Auth.: ORS 654.025(2) & ORS 654.078
Stats. Implemented: ORS 183.502
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0250

Requests for Mediation

(1) The parties shall notify the assigned Administrative Law Judge of their desire to mediate their controversy. The parties may select a mediator from an approved list provided by the Hearings Division. If the parties do not indicate a choice of mediator or cannot agree, a mediator may be selected by the assigned Administrative Law Judge.

(2) Persons who are not parties to a mediation may be included in mediation discussions with the consent of the mediator and the parties.

Stat. Auth.: ORS 654.025(2) & ORS 654.078
Stats. Implemented: ORS 183.502
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0260

Mediation Agreements

(1) Any resolution involving matters arising under the Act shall be reduced to writing.

(2) The parties may, by agreement, resolve issues that arise outside the scope of the Act and reduce those agreements to writing. Such agreements, however, shall be separate from any agreement resolving issues under the Act and shall not be enforceable by the Workers' Compensation Board.

(3) The parties shall advise the mediator in writing when a request for hearing has been resolved by an executed mediation agreement.

Stat. Auth.: ORS 654.025(2) & ORS 654.078
Stats. Implemented: ORS 183.502
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

Procedures in Response to Appeals

438-085-0305

Transmittal of Documents to Hearings Division

(1) The Board will defer action on a Request for Hearing for 90 days unless:

(a) There is a withdrawal of the citation or Request for Hearing;

(b) A settlement is reached;

(c) There is an express waiver of participation in the OR-OSHA informal settlement conference process;

(d) An expedited hearing is required by ORS 654.078(6); or

(e) There is a motion or matter requiring action by an Administrative Law Judge.

(2) If, during the deferral period, the case is settled or the citation or request for hearing is withdrawn, or there is any other reason the case requires action by an Administrative Law Judge, OR-OSHA shall immediately transmit to the Hearings Division those documents necessary to allow the Administrative Law Judge to dismiss the request for hearing and close the case, or take whatever other action is required.

(3) At the expiration of 90 days or in all other cases described in section (1) of this rule, OR-OSHA shall transmit to the Hearings Division the following documents:

(a) A statement of the reason for the transmittal;

(b) A list of the documents transmitted;

(c) The original request for hearing;

(d) A copy of the contested citation, notice or order;

(e) Any other document pertinent to the reason for the transmittal.

(4) OR-OSHA shall mail a copy of the notice of transmittal and list of transmitted documents to all parties.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 654.025
Hist.: WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0306

Hearings Division Response to Request For Hearing

(1) When the Hearings Division receives a transmittal pursuant to OAR 438-085-0305, it shall caption and assign a docket number to the case. The case shall then be assigned to an Administrative Law Judge, who will thereafter be responsible for all case management, including all pre-hearing matters and the hearing itself.

(2) After a case has been received by the Hearings Division and assigned to an Administrative Law Judge, the Hearings Division shall mail the parties an acknowledgment and notice of case assignment.

(3) If the parties request Alternative Dispute Resolution assistance, the assigned Administrative Law Judge shall refer the case to the mediator requested by the parties, or selected by the assigned Administrative Law Judge if the parties so request.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

Parties and Representatives; Employee Third-Party Rights and Notice; Access to Documents

438-085-0406

Necessary Parties; Adding Parties

(1) OR-OSHA and the employer are necessary parties in all contested cases under the Act.

(2) If an affected employee or authorized representative requests a hearing pursuant to ORS 654.078(2) or ORS 654.056(5), or requests to become a party pursuant to ORS 654.290(2)(d) and OAR 438-085-0411, such affected employee or authorized representative shall be a necessary party.

(3) Any person considered necessary by the Administrative Law Judge for a full and final determination of the issues in a case may be added upon petition pursuant to OAR 438-085-0426.

Stat. Auth.: ORS 183.335, ORS 654.056(5) & ORS 656.726(5)
Stats. Implemented: ORS 654.025, ORS 654.078 & ORS 654.290(2)(d)
Hist.: WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0411

Employee Rights

(1) Affected employees or authorized representatives may elect to participate as parties in a contested case in which they have not requested a hearing by submitting a request to the Hearings Division.

(2) An affected employee's or authorized representative's request to become a party in a case must be filed at least five days before the hearing, if any, on the merits of the case. The assigned Administrative Law Judge may otherwise allow an affected employee or authorized representative to participate as a party only upon a showing of good cause.

(3) The written request to become a party must show that the person is an affected employee or an authorized representative.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0426

Intervention

(1) A petition to intervene in a contested case may be filed by a person at any time before the case is closed without a hearing, or before any scheduled hearing starts.

(2) The petition must state the petitioner's interest in the case, show that participation will assist in the determination of the issues, and explain why intervention will not unnecessarily delay the proceedings.

(3) The Administrative Law Judge may grant a petition for intervention to such extent and upon such terms as considered appropriate.

(4) When a petition for intervention is granted, the intervenor becomes a party to the case.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89

 

438-085-0431

Representatives of Parties

(1) Any party may act through a representative and may appear in a hearing by a representative.

(2) A representative is not required to be an attorney at law or have any other special qualification.

(3) Unless a party is represented by an attorney at law, a designation of the party's representative must be in writing, contain the name, address and telephone number of the representative and be signed by the party. If the party is a corporation, the designation must be signed by an officer; if a partnership, by one of the partners; and if a public body, labor union, or other organization, by an official with the authority to designate a representative.

(4) A representative shall be considered to fully control the interests of the party in the case.

(5) A representative may terminate its status as a representative by filing a written notice thereof and serving a copy on all other parties.

Stat. Auth.: ORS 654.025(2) & ORS 654.293
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0436

Access to Documents

(1) The employer must maintain, until the case is closed, copies of all documents filed in the case at a location convenient for affected employees to inspect and copy them at reasonable times.

(2) Any person may inspect and copy the documents filed in a contested case which has been referred to the Hearings Division at the offices of the Hearings Division. Copies of documents may be ordered by mail. The cost of copies shall be at the rates set by the Board for the reproduction of its public records, but a nominal number of copies may be provided without charge.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1989, f. 3-31-89, ef. 5-1-89

 

Captions; Form of Documents; Pleadings;

Amendments; Service

 

438-085-0506

Captions of Cases

Contested cases shall be captioned by the Hearings Division and referred to by the following titles:

(1) A case initiated by a contested OR-OSHA citation, notice of penalty or correction order shall be titled, "Oregon Occupational Safety and Health Division, Plaintiff v. (name of party requesting a hearing), Defendant".

(2) A contested case that originated with an application relating to a variance shall be titled, "(name of party requesting a hearing), Petitioner v. Oregon Occupational Safety and Health Division, Respondent".

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0511

Form of Documents

(1) All documents, other than exhibits submitted pursuant to OAR 438-085-0855, filed after the Hearings Division acknowledges transmittal of a contested case shall:

(a) Contain the case title and docket number assigned by the Hearings Division and the name of the assigned Administrative Law Judge;

(b) Contain the name, address and telephone number of the party or representative submitting the document; and

(c) Be signed by the party or representative submitting the document.

(2) The Administrative Law Judge may refuse to accept for filing or consideration any document that does not comply with this rule.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0526

Amendments as of Right

(1) Unless otherwise provided by the Administrative Law Judge, amendments to the citation and to the request for hearing, including affirmative defenses, shall be allowed up to the date and time set for hearing.

(2) An amendment made by OR-OSHA under this rule may not allege a new violation or increase a penalty.

(3) Amendments made in accordance with this rule are effective upon filing.

(4) If a party is prejudiced by the timing of the amendment, a postponement or continuance may be allowed.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0531

Correction of Defective Request for Hearing

If a request for hearing fails to specify the matters contested and the grounds for the request for hearing, or otherwise fails to substantially comply with the requirements of ORS 654.078 and OAR 438-085-0111, the Administrative Law Judge may, on the Administrative Law Judge's own motion or upon motion of a party, order the requesting party to correct the defects by filing an amended request for hearing, or a supplement to the request for hearing, within such time as the Administrative Law Judge considers reasonable. If within the time permitted the requesting party fails to amend or supplement the request for hearing to conform with ORS 654.078 and OAR 438-085-0111, it may be dismissed by the Administrative Law Judge.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0541

Service of Documents on Other Parties

(1) At the time a party files any document with the Hearings Division, the party shall serve a copy of that document on every other party to the case.

(2) Service shall be made upon a party by first class mail or by personal delivery, and is effective at the time of mailing or personal delivery.

(3) Service upon a party who is acting through a representative shall be made upon that representative.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0545

Proof of Service

(1) A party who files a document with the Hearings Division shall include with the document a proof of service which states the date and manner of compliance with OAR 438-085-0541, including the address at which the other party was served.

(2) Proof of service may be made by:

(a) Affidavit of service;

(b) Written statement made upon the document filed, and signed by the party or representative making the statement; or

(c) Letter of transmittal.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82

 

438-085-0550

Ex Parte Communications

(1) Except for communications made in the context of a mediation or other settlement proceeding, there shall be no ex parte communication, concerning the merits of any pending case, with the assigned Administrative Law Judge.

(2) In the event a prohibited ex parte communication occurs, the assigned Administrative Law Judge shall place on the record a statement of the substance of the prohibited communication and shall notify the parties of the communication and of their right to rebut such communication.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77; ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

Closing Cases by Withdrawal or Settlement

 

438-085-0606

Withdrawal of Request for Hearing

(1) The requesting party may file a written withdrawal of the request for hearing at any time before the Administrative Law Judge issues a final order.

(2) When a request for hearing is withdrawn, the Administrative Law Judge shall issue an order dismissing the request for hearing.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0611

Withdrawal by Affected Employee, Authorized Representative, or Intervenor

(1) An affected employee, an authorized representative, or an intervenor in a contested case may withdraw as a party at any time before the Administrative Law Judge issues a final order.

(2) Such a withdrawal shall be effective upon filing.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0616

Withdrawal by OR-OSHA

OR-OSHA may withdraw its contested citation, notice or order at any time before an order issued by an Administrative Law Judge becomes final. Upon such withdrawal, the Administrative Law Judge shall issue an order vacating the citation, notice or order and dismissing the request for hearing.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0621

Settlement

(1) The parties may enter into a settlement agreement at any time.

(2) A signed copy of any settlement entered into after the filing of a request for hearing shall be submitted to the Hearings Division, and the Administrative Law Judge shall issue an order dismissing the request for hearing, or take other appropriate action.

Stat. Auth.: ORS 654.290 & ORS 656.726(4)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1992(Temp), f. 5-15-92, cert. ef. 5-18-92; WCB 6-1992, f. 10-9-92, cert. ef. 10-12-92; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0631

Sanctions for Failure to File Documents

If a party fails to file any document when due, the Administrative Law Judge may, in his or her discretion:

(1) Treat the failure as a waiver of the party's right to file the document, and presume that the document, if filed, would be adverse to the party's position on any issue related to it; or

(2) Enter an order dismissing the request for hearing or vacating the citation.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

Pre-Hearing Procedures

 

438-085-0710

Setting and Notice of Hearing

(1) Except as required by ORS 654.078(6), notice of a scheduled hearing shall be given to all parties by the Hearings Division at least 50 days before the hearing date, unless the parties agree to a shorter period of notice.

(2) The notice of hearing shall include the date, time and place of hearing.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0715

Place of Hearing

The hearing shall be held in Oregon at a place that is reasonably convenient for the party requesting the hearing and affected employees, or at such other place as may be selected by the Administrative Law Judge.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.0788
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0718

Hearing Security

Any party or representative having knowledge or reasonable belief that any party or witness may present a danger or may be a threat to anyone involved in the hearing shall immediately notify the assigned Administrative Law Judge and the opposing parties or representatives 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 656.725(4)
Stats. Implemented: ORS 656.726(4)
Hist.: WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0720

Postponement or Continuance of Hearing

(1) A scheduled hearing shall not be postponed except by order of an Administrative Law Judge upon a finding of good cause.

(2) Continuance and/or bifurcation of a contested case shall be allowed at the discretion of the Administrative Law Judge upon consideration of the facts and circumstances providing the basis for the Motion for continuance and/or bifurcation.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

438-085-0725

Statement of Issues; Pre-Hearing Conference

At any time before hearing the Administrative Law Judge may order the parties to:

(1) Prepare and submit a written statement setting forth the relevant facts about which there is no dispute, each party's contentions of fact, and the issues of fact and law to be decided by the Administrative Law Judge.

(2) Exchange information or attend a pre-hearing conference with the Administrative Law Judge for the purpose of simplifying or clarifying the issues or expediting the proceeding.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0730

Consolidation or Separation

If no substantial right of any party will be prejudiced, the Administrative Law Judge may:

(1) Consolidate cases in which there are common parties and common questions of law or fact; or

(2) Divide the issues of a case into separate cases.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0735

Motions

(1) All motions shall be filed with the Administrative Law Judge as soon as practicable.

(2) Pre-hearing motions shall be in writing and contain a clear and plain statement of the relief sought and the grounds for relief.

(3) Any party on whom a pre-hearing motion is served shall have 14 days from the date of receipt of such motion, or such time as the Administrative Law Judge may allow, to file a written response to the motion. A written reply may be filed within seven (7) days of receipt of the last response.

(4) No additional arguments may be submitted without the prior approval of the Administrative Law Judge.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0740

Discovery

(1) Unless otherwise provided by the assigned Administrative Law Judge, within 14 days after the mailing of the notice of case assignment pursuant to OAR 438-085-0306 OR-OSHA shall provide to the other parties or their representatives copies of all documents in its possession pertaining to the contested matter, including relevant rules, unless previously provided.

(2) Unless otherwise provided by the assigned Administrative Law Judge, within 14 days of OR-OSHA's mailing, the other parties or their representatives shall furnish to OR-OSHA copies of documents in their possession pertaining to the matter which they did not receive from OR-OSHA, unless previously provided.

(3) Copies of documents acquired after the initial exchanges shall be provided to the other parties immediately after the disclosing party's receipt of the documents.

(4) Subject to limitations imposed pursuant to OAR 438-085-0805(2), depositions and interrogatories are allowed by agreement of the parties or upon motion of a party and an order of the Administrative Law Judge.

(5) A reporter's fee for a deposition shall be paid by the party who requested the deposition unless otherwise agreed by the parties or directed by the assigned Administrative Law Judge.

(6) Notwithstanding sections (1) through (3), the assigned Administrative Law Judge may, after discussion with the parties, set timelines for completion of discovery.

(7) Where a "document" cannot be photocopied but it is discoverable, the possessing party shall so advise the other party or parties and shall cooperate in arranging for its inspection.

(8) Notwithstanding sections (1) through (3), privileged and work product documents shall not be subject to disclosure.

(9) Failure of a party to comply with this rule or with any requirements set by the assigned Administrative Law Judge may result in continuance of the hearing, exclusion of the documents from the evidentiary record, vacation of the citation, dismissal of the request for hearing, or such other sanctions as the assigned Administrative Law Judge may deem appropriate.

Stat. Auth.: ORS 183.335, ORS 183.425(2) & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0745

Subpoenas

(1) The attendance and testimony of witnesses at the hearing, or the production of documentary or physical evidence under the witnesses' control or possession, may be compelled by subpoena.

(2) Subpoenas may be issued by the Presiding Administrative Law Judge, the Administrative Law Judge, or the representative of record of the party in whose behalf the witnesses are required to appear. The Hearings Division shall provide subpoenas in blank, upon request, to a party or the party's representative of record.

(3) Any person present at the hearing may be required to testify to the same extent as if the person had been subpoenaed.

(4) If any person fails to comply with a subpoena, or any party or witness refuses to testify on any matters on which such party or witness may be lawfully questioned, proceedings to compel obedience may be instituted in accordance with ORS 654.130 or ORS 183.440.

(5) Witnesses appearing by subpoena shall be paid, by the party who subpoenas them, the same fees and mileage required by law for witnesses in civil actions. Parties and employees of OR-OSHA shall not be paid such witness fees or mileage.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 183.440, ORS 654.025, ORS 654.078 & ORS 654.130
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0750

Change of Administrative Law Judge

(1) The assigned Administrative Law Judge may withdraw from a case whenever he or she considers it appropriate.

(2) Any party may request that the assigned Administrative Law Judge remove himself or herself from a case on the grounds of personal bias or conflict of interest. If the assigned Administrative Law Judge declines the request, the party may file with the Presiding Administrative Law Judge a motion for removal and supporting affidavit.

(3) If, in the opinion of the Presiding Administrative Law Judge, the motion for removal is filed with due diligence and the supporting affidavit is sufficient on its face, the Presiding Administrative Law Judge may, in his or her discretion, hold a hearing, and shall either grant or deny the motion.

Stat. Auth.: ORS 655.726(4)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 7-1987, f. 12-23-87, ef. 1-1-88; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0755

Extensions of Time

Requests for extensions of time for filing of any documents shall be received in the office of the assigned Administrative Law Judge in advance of the day on which the document is due to be filed.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

Hearings

 

438-085-0800

Decision by Administrative Law Judge Without Hearing

(1) To reduce the cost to the public, to the parties and to their witnesses, the Board encourages the parties to submit their cause to the Administrative Law Judge, whenever possible, without a hearing.

(2) A case may be decided by the Administrative Law Judge without a hearing upon the joint agreement of all parties and the assigned Administrative Law Judge.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0805

Duties and Powers of Administrative Law Judge

It is the duty of the Administrative Law Judge to conduct a fair and impartial hearing and to avoid delay. The Administrative Law Judge has the authority to:

(1) Issue subpoenas;

(2) Order depositions to be taken or make limitations on discovery;

(3) Hold conferences for settlement of the case, clarification of the issues, or such other purpose which furthers the goal of full, prompt, and fair resolution of the case;

(4) Dispose of procedural requests, motions or similar matters;

(5) Administer oaths and affirmations;

(6) Rule upon offers of evidence;

(7) Regulate the course of the hearing and, if necessary, exclude persons from the hearing;

(8) Require a party to state the party's position on any issue in the case and the legal basis for that position;

(9) Order a party to produce a witness or other evidence;

(10) Call and examine any party or witness;

(11) Close the hearing record, or reopen it, as the needs of justice and the hearing require;

(12) Prohibit photographing, televising, or sound or video recording of the hearing from within or outside the hearing room.

(13) Take any other action necessary for a full and fair disposition of the case.

Stat. Auth.: ORS 183.335, ORS 656.726(5) & ORS 654.025
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0810

Failure to Appear

(1) Except as provided in section (2) of this rule, failure of a party to appear at the hearing shall be considered a default and a waiver of all rights except the right to be served with a copy of the Administrative Law Judge's order and the right to request judicial review in accordance with ORS 183.480 to 183.500. A default order may be issued only upon a prima facie case made in the evidentiary record.

(2) Upon a showing of good cause, the Administrative Law Judge shall excuse a party's failure to appear and reconvene the hearing.

Stat. Auth.: ORS 654.025(2)
Stats. Implemented: ORS 183.415(6), ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1989, f. 3-31-89, ef. 5-1-89; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0815

Record and Transcript of Hearing

(1) A verbatim record shall be made of the hearing, including all motions, rulings and testimony. Reporters' hearing and transcript fees shall be paid by the Board, except as provided in subsection (3) of this rule.

(2) At any time before the Administrative Law Judge's decision becomes final, the Administrative Law Judge may order a full or partial transcript of the hearing record.

(3) At any time before the reporter's notes or recordings of the hearing are destroyed, any person may order a transcript at that person's expense, except that prior to closure of the evidentiary record, in a case where witnesses have been excluded, no party may obtain, and the reporter or reporting firm shall not provide, any transcript of witness testimony or portion thereof without prior authorization by the Administrative Law Judge.

(4) When the record of a case is forwarded to the Court of Appeals for judicial review pursuant to ORS 183.482(4), each party shall be served with a copy of the record, excepting exhibits.

(5) Reporters' notes or records of a hearing may be destroyed six months after final disposition of the case by the Administrative Law Judge or court.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0820

Burden of Proof

(1) OR-OSHA has the burden of proving:

(a) A denied violation;

(b) The reasonableness of a contested penalty;

(c) The reasonableness of a contested correction order.

(2) The party who contests a proposed OR-OSHA order that will grant, deny, modify or revoke a variance has the burden of proving that the proposed order is incorrect.

(3) The party having the burden of proving a fact must establish it by a preponderance of the evidence.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0825

Conduct of Hearing

(1) Testimony shall be taken only on oath or affirmation.

(2) Each party shall have these rights:

(a) To call and examine parties and witnesses;

(b) To offer documents as evidence;

(c) To question the witnesses of other parties on any matter relevant to the issues even though that matter was not covered in the direct examination;

(d) To offer evidence to impeach any witness regardless of which party first called the witness to testify; and

(e) To offer rebuttal evidence.

(3) The taking of evidence in the hearing shall be controlled by the Administrative Law Judge in the manner best suited to ascertain the facts and safeguard the rights of the parties.

(4) The hearing shall be conducted in the English language. Upon reasonable advance request, a qualified interpreter shall be provided in accordance with ORS 183.418.

(5) For purposes of ORS 654.078(6) and notwithstanding OAR 438-085-0026(15) and sections (1) through (4) of this rule, the issue of the time fixed for correction of a serious violation may be determined based upon a hearing record consisting of affidavits, stipulations, and such other documentary evidence as permitted by the ALJ.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0835

Exclusion of Witness From Hearing Room

Upon motion of a party, the Administrative Law Judge may exclude an opposing party's witness from the hearing room if the basis of the motion is to prevent the witness from hearing testimony. A party or its representative shall not be excluded on the grounds that the party or its representative will be a witness.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0840

Rules of Evidence

The rules of privilege and evidence in proceedings under this chapter are governed by ORS 183.450(1) through (4).

Stat. Auth.: ORS 183.335, ORS 656.726(5) & ORS 654.290(2)
Stats. Implemented: ORS 183.450(1) - ORS 183.450(4), ORS 654.025 & ORS 654.078;
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0845

Official Notice

(1) The Administrative Law Judge may take official notice of judicially cognizable facts and the Administrative Law Judge may take official notice of general, technical or scientific facts within the Administrative Law Judge's specialized knowledge.

(2) The Administrative Law Judge shall advise the parties of, and give them an opportunity to contest, any facts or other matters of which official notice is being taken.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 183.450(4), ORS 654.025 & ORS 654.078
Hist.: WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 4-1978, f. 3-31-78, ef. 4-1-78; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0850

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 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0855

Exhibits

(1) Unless otherwise required by the Administrative Law Judge, and not later than 21 days before the hearing, OR-OSHA shall provide to the assigned Administrative Law Judge legible copies of all proposed exhibits, numbered chronologically, earliest first, and indexed. Dated proposed exhibits shall precede those which are undated. Exhibit numbers shall be placed at the lower right corner of each page, except that depositions shall be numbered on the cover page only. OR-OSHA shall also provide to the other parties or their representatives an index of all proposed exhibits and copies of any proposed exhibits not previously provided pursuant to OAR 438-085-0740. Not less than 14 days before the hearing, or within seven days of receipt of the OR-OSHA index, whichever is later, the other parties or their representatives shall provide to OR-OSHA and to the Administrative Law Judge legible copies of any additional proposed exhibits, numbered chronologically and indexed to coincide with OR-OSHA's exhibits. For example, a proposed exhibit falling chronologically between those OR-OSHA has numbered "6" and "7" shall be designated Exhibit 6A.

(2) Unless the Administrative Law Judge determines that exceptional circumstances require that an object or real evidence accompany the record, an accurate description or photograph of the object shall be substituted for it. The party offering the object or real evidence shall be responsible for providing the description or photograph, and for retaining custody of the object until all rights to review have expired.

(3) The parties shall offer as exhibits copies of only those portions of each Division of the Oregon Occupational Safety and Health Code upon which they intend to rely or which are otherwise relevant, and which were in effect and/or applicable on the dates pertaining to the issues in the case. In the event the relevant OR-OSHA rule adopts a Federal rule but does not contain the text thereof, a copy of the applicable Federal rule shall also be provided.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0860

View of Premises

On motion of any party or on the Administrative Law Judge's own motion, the Administrative Law Judge may, prior to the hearing or during a recess of the hearing for that purpose, view the premises, equipment or processes related to an issue in the case, in order to obtain a better understanding of the testimony. All parties shall be given reasonable notice of, and an opportunity to be present during, a viewing. The Administrative Law Judge shall not consider as evidence in the case the impressions obtained from a viewing.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0865

Opinion and Order of Administrative Law Judge

(1) The decision of the Administrative Law Judge in a contested case shall be rendered in a written Opinion and Order, which shall also contain findings of fact and conclusions of law.

(2) Except for matters stipulated to by the parties or officially noticed by the Administrative Law Judge, no factual information or evidence that is not made part of the record shall be considered by the Administrative Law Judge in making determinations.

(3) The Opinion and Order of the Administrative Law Judge shall be deemed to be a final order of the Board.

(4) Each party or, if applicable, a party's representative shall be mailed or delivered a copy of the Administrative Law Judge's Opinion and Order, with notice of the party's right to judicial review by the Court of Appeals as provided in ORS 183.480 to 183.500.

Stat. Auth.: ORS 183.335 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 5-1973, f. & ef. 12-20-73; WCB 10-1974, f. 3-19-74, ef. 4-15-74; WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

 

438-085-0870

Reconsideration

(1) The Administrative Law Judge may withdraw any order for the purpose of reconsideration at any time prior to:

(a) The expiration of the period allowed for filing a petition for judicial review, if one has not been filed; or

(b) The date set for oral argument before the Court of Appeals on a petition for judicial review, as permitted by subsection (6) of ORS 183.482.

(2) Reconsideration may be upon the Administrative Law Judge's own motion, or upon motion of a party showing error, omission, or misconstruction of a statute or rule.

(3) Written notice of reconsideration shall be given by the Administrative Law Judge to all parties.

(4) The Administrative Law Judge may affirm, modify or reverse any order that has been withdrawn.

Stat. Auth.: ORS 183.355 & ORS 656.726(5)
Stats. Implemented: ORS 654.025 & ORS 654.078
Hist.: WCB 6-1977, f. 5-5-77, ef. 6-1-77; WCB 2-1982, f. 6-22-82, ef. 8-2-82; WCB 3-1997, f. 12-12-97, cert. ef. 3-1-98

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