2017 ORS 656.283¹
Hearing rights and procedure
  • rules
  • impeachment evidence
  • use of standards for evaluation of disability

(1) Subject to ORS 656.319 (Time within which hearing must be requested), any party or the Director of the Department of Consumer and Business Services may at any time request a hearing on any matter concerning a claim, except matters for which a procedure for resolving the dispute is provided in another statute, including ORS 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim).

(2) A request for hearing may be made by any writing, signed by or on behalf of the party and including the address of the party, requesting the hearing, stating that a hearing is desired, and mailed to the Workers’ Compensation Board.

(3)(a) The board shall refer the request for hearing to an Administrative Law Judge for determination as expeditiously as possible. The hearing shall be scheduled for a date not more than 90 days after receipt by the board of the request for hearing. The hearing may not be postponed:

(A) Except in extraordinary circumstances beyond the control of the requesting party; and

(B) For more than 120 days after the date of the postponed hearing.

(b) When a hearing set pursuant to paragraph (a) of this subsection is postponed because of the need to join one or more potentially responsible employers or insurers, the assigned Administrative Law Judge shall reschedule the hearing as expeditiously as possible after all potentially responsible employers and insurers have been joined in the proceeding and the medical record has been fully developed. The board shall adopt rules for hearings on claims involving one or more potentially responsible employers and insurers that:

(A) Require the parties to participate in any prehearing conferences required to expedite the hearing; and

(B) Authorize the Administrative Law Judge conducting the hearing to:

(i) Establish a prehearing schedule for investigation of the claim, including but not limited to the interviewing of the claimant;

(ii) Make prehearing rulings necessary to promote full discovery and completion of the medical record required for determination of the issues arising from the claim; and

(iii) Specify what is required of the claimant to meet the obligation to reasonably cooperate with the investigation of claims.

(c) Nothing in paragraph (b) of this subsection alters the obligation of an insurer or self-insured employer to accept or deny a claim for compensation as required under this chapter.

(d) If a hearing has been postponed in accordance with paragraph (b) of this subsection:

(A) The director may not consider the timeliness of a denial issued in the claim that is the subject of the hearing for the purpose of imposing a penalty against an insurer or self-insured employer that is potentially responsible for the claim; and

(B) The 120-day maximum postponement established under paragraph (a) of this subsection for rescheduling a hearing does not apply.

(4)(a) At least 60 days’ prior notice of the time and place of hearing shall be given to all parties in interest by mail. Hearings shall be held in the county where the worker resided at the time of the injury or such other place selected by the Administrative Law Judge.

(b) The 60-day prior notice required by paragraph (a) of this subsection:

(A) May be waived by agreement of the parties and the board if waiver of the notice will result in an earlier date for the hearing.

(B) Does not apply to hearings in cases assigned to the Expedited Claim Service under ORS 656.291 (Expedited Claim Service), cases involving stayed compensation under ORS 656.313 (Stay of compensation pending request for hearing or review) (1)(b) and requests for hearing that are consolidated with an existing case with an existing hearing date.

(5) A record of all proceedings at the hearing shall be kept but need not be transcribed unless a party requests a review of the order of the Administrative Law Judge. Transcription shall be in written form as provided by ORS 656.295 (Board review of Administrative Law Judge orders) (3).

(6) Except as otherwise provided in this section and rules of procedure established by the board, the Administrative Law Judge is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, and may conduct the hearing in any manner that will achieve substantial justice. Neither the board nor an Administrative Law Judge may prevent a party from withholding impeachment evidence until the opposing party’s case in chief has been presented, at which time the impeachment evidence may be used. Impeachment evidence consisting of medical or vocational reports not used during the course of a hearing must be provided to any opposing party at the conclusion of the presentation of evidence and before closing arguments are presented. Impeachment evidence other than medical or vocational reports that is not presented as evidence at hearing is not subject to disclosure. Evaluation of the worker’s disability by the Administrative Law Judge shall be as of the date of issuance of the reconsideration order pursuant to ORS 656.268 (Claim closure). Any finding of fact regarding the worker’s impairment must be established by medical evidence that is supported by objective findings. The Administrative Law Judge shall apply to the hearing of the claim such standards for evaluation of disability as may be adopted by the director pursuant to ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws). Evidence on an issue regarding a notice of closure that was not submitted at the reconsideration required by ORS 656.268 (Claim closure) is not admissible at hearing, and issues that were not raised by a party to the reconsideration may not be raised at hearing unless the issue arises out of the reconsideration order itself. However, nothing in this section shall be construed to prevent or limit the right of a worker, insurer or self-insured employer to present the reconsideration record at hearing to establish by a preponderance of that evidence that the standards adopted pursuant to ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws) for evaluation of the worker’s permanent disability were incorrectly applied in the reconsideration order pursuant to ORS 656.268 (Claim closure). If the Administrative Law Judge finds that the claim has been closed prematurely, the Administrative Law Judge shall issue an order rescinding the notice of closure.

(7) Any party shall be entitled to issuance and service of subpoenas under the provisions of ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws) (2)(c). Any party or representative of the party may serve such subpoenas.

(8) After a party requests a hearing and before the hearing commences, the board, by rule, may require the requesting party, if represented by an attorney, to notify the Administrative Law Judge in writing that the attorney has conferred with the other party and that settlement has been achieved, subject to board approval, or that settlement cannot be achieved. [1965 c.285 §34; 1979 c.839 §7; 1981 c.535 §33; 1981 c.860 §§1,5; 1985 c.600 §9; 1987 c.884 §11; 1990 c.2 §20; 1995 c.332 §34; 1999 c.313 §7; 2003 c.667 §2; 2005 c.26 §11; 2005 c.624 §1; 2009 c.35 §2]

Note: See notes under 656.202 (Compensation payable to subject worker in accordance with law in effect at time of injury).

Notes of Decisions

Letter that did not specifically set out claimant’s address was nonetheless adequate request for hearing. Burkholder v. SAIF, 11 Or App 334, 502 P2d 1394 (1972)

Medical reports prepared by physician not available for cross-examina­tion at hearing are admissible. Critofaro v. SAIF, 19 Or App 272, 527 P2d 412 (1974)

Claimant may request hearing on initial disability determina­tion notwithstanding enroll­ment in ongoing voca­tional rehabilita­tion program. Minor v. Delta Truck Lines, 43 Or App 29, 602 P2d 288 (1979), Sup Ct review denied

Where claimant requested hearing on or about same date he filed claim and did not renew request after claim was denied, request on sole ques­tion of whether claim should be accepted was premature and therefore ineffective. Syphers v. K-W Logging, Inc., 51 Or App 769, 627 P2d 24 (1981), Sup Ct review denied

Court of Appeals properly relied on exhibit that was marked but not admitted as evidence where referee considered exhibit. Rivera v. R & S Nursery, 69 Or App 281, 684 P2d 1250 (1984)

“Lord Mansfield’s Rule” that, for es­tab­lishing paternity, non-access of married party may not be testified to by the married parties, should not be applied in workers’ compensa­tion hearings to exclude or ignore relevant evidence. Amos v. SAIF, 72 Or App 145, 694 P2d 998 (1985)

Because acceptance or denial of claim is not duty of noncomplying employer, employer could request hearing on compensability of claim without issuing denial. Horgen v. Martinez, 101 Or App 396, 790 P2d 1195 (1990)

Workers’ Compensa­tion Board has authority to award attorney fees for legal services provided to client during director’s administrative review of dispute re­gard­ing voca­tional assistance. SAIF v. Severson, 105 Or App 67, 803 P2d 1203 (1990), modified 109 Or App 136, 817 P2d 1352 (1991)

Request for hearing is not jurisdic­tional, so failure of employer to file written request for hearing on particular issue was not preclusive where no objec­tion was made at hearing. Salter v. SAIF, 108 Or App 717, 816 P2d 1208 (1991)

Request for hearing must be referable to particular denial. Guerra v. SAIF, 111 Or App 579, 826 P2d 1034 (1992)

Where Depart­ment of Insurance and Finance order on reconsidera­tion was invalid, referee still had jurisdic­tion to review order. Pacheco-Gonzalez v. SAIF, 123 Or App 312, 860 P2d 822 (1993)

Referee has no authority to remand claim to Depart­ment of Insurance and Finance. Pacheco-Gonzalez v. SAIF, 123 Or App 312, 860 P2d 822 (1993)

Where no medical arbiter was appointed, medical report prepared after issuance of reconsidera­tion order was admissible at hearing before referee. Scheller v. Holly House, 125 Or App 454, 865 P2d 475 (1993), Sup Ct review denied

Correct process is for director to informally investigate and issue order; then referee con­ducts hearing, develops record and decides based on facts in record whether director’s decision survives review; then board reviews based on record developed by referee. Colclasure v. Wash. Co. School Dist. No. 48-J, 317 Or 526, 857 P2d 126 (1993)

Physician request under ORS 656.245 (Medical services to be provided) for approval of noncompensable type of palliative care does not raise “ques­tion concerning a claim.” Hathaway v. Health Future Enterprises, 320 Or 383, 884 P2d 549 (1994); Nicholson v. Salem Area Transit, 320 Or 391, 884 P2d 864 (1994)

Require­ment that evidence at ap­peal level be limited to evidence presented at reconsidera­tion condi­tions ORS 656.287 (Use of vocational reports in determining loss of earning capacity at hearing) right to introduce evidence at hearing. Rogue Valley Medical Center v. McClearen, 152 Or App 239, 952 P2d 1048 (1998), Sup Ct review denied

For mandatory reconsidera­tion under ORS 656.268 (Claim closure) to preclude further review, matter that claimant objects to must be manifest in notice of closure. Venetucci v. Metro, 155 Or App 559, 964 P2d 1090 (1998)

Issue that did not exist at time of reconsidera­tion may be raised for first time at hearing. Crowder v. Alumaflex, 163 Or App 143, 986 P2d 1269 (1999)

Although worker retains burden of proof of disability on ap­peal, burden of identifying and es­tab­lishing error of ap­pealed decision rests on party seeking modifica­tion. Marvin Wood Products v. Callow, 171 Or App 175, 14 P3d 686 (2000)

Claimant seeking permanent total disability benefits is entitled to opportunity for oral evidentiary hearing at some meaningful stage in ap­peal process because limiting record on reconsidera­tion to written evidence denies claimant due process by preventing meaningful opportunity to meet burden of proof and persuasion. Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000)

Where witness testimony is type that generally does not involve issues of witness veracity or credibility, claimant does not have due process right to cross-examine witness. Logsdon v. SAIF, 181 Or App 317, 45 P3d 990 (2002), aff’d on other grounds, 336 Or 349, 84 P3d 119 (2004)

Same types of nonverified indicators of impair­ment that qualify as objective findings for purposes of determining compensability qualify as objective findings for purposes of determining extent of permanent disability. SAIF v. Drury, 202 Or App 14, 121 P3d 664 (2005), Sup Ct review denied

Person signing request for hearing “on behalf of” claimant need not be attorney. Havi Group LP v. Fyock, 204 Or App 558, 131 P3d 793 (2006)

Personal representative acting on behalf of deceased worker’s estate lacks standing to challenge claim resolu­tion. Cato v. Alcoa-Reynolds Metals Co., 210 Or App 721, 152 P3d 981 (2007), Sup Ct review denied

Law Review Cita­tions

32 WLR 217 (1996)

Law Review Cita­tions

55 OLR 432-445 (1976); 16 WLR 519 (1979); 22 WLR 559 (1986)

Chapter 656

Notes of Decisions

Party having af­firm­a­tive of any issue must prove it by preponderance of evidence unless legislature fixes some different quantum of proof. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Amend­ments to existing statutes and enact­ment of addi­tional statutes by 1995 legisla­tion generally apply to pending cases and to orders still ap­pealable on June 7, 1995, effective date. Volk v. America West Air­lines, 135 Or App 565, 899 P2d 746 (1995), Sup Ct review denied

Amend­ments to existing statutes and enact­ment of addi­tional statutes by 1995 legisla­tion do not extend or shorten procedural time limita­tions with regard to ac­tions taken prior to June 7, 1995, effective date. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995)

Atty. Gen. Opinions

Benefit unavailability for inmates engaged in prison work programs, (1996) Vol 48, p 134

Law Review Cita­tions

24 WLR 321, 341 (1988); 32 WLR 217 (1996)

1 Legislative Counsel Committee, CHAPTER 656—Workers’ Compensation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors656.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.