2015 ORS 656.295¹
Board review of Administrative Law Judge orders
  • application of standards for evaluation of disability

(1) The request for review by the Workers’ Compensation Board of an order of an Administrative Law Judge need only state that the party requests a review of the order.

(2) The requests for review shall be mailed to the board and copies of the request shall be mailed to all parties to the proceeding before the Administrative Law Judge.

(3) When review has been requested, the record of such oral proceedings at the hearings before the Administrative Law Judge as may be necessary for purposes of the review shall be transcribed at the expense of the board. The original transcript shall be certified to be true, accurate and complete by the transcriber. A list of all exhibits received by the Administrative Law Judge shall be furnished to the parties in interest along with a copy of the transcribed record.

(4) Notice of the review shall be given to the parties by mail. The board shall set a date for review as expeditiously as possible. Review shall be scheduled for a date not later than 90 days after receipt by the board of the request for review. Review shall not be postponed except in extraordinary circumstances beyond the control of the requesting party.

(5) The review by the board shall be based upon the record submitted to it under subsection (3) of this section and such oral or written argument as it may receive. Evaluation of the worker’s disability by the board 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. If the board finds that the claim has been closed prematurely, the board shall issue an order rescinding the notice of closure. The board shall apply to the review of the claim such standards for the evaluation of disability as may be adopted by the Director of the Department of Consumer and Business Services pursuant to ORS 656.726 (Duties and powers to carry out workers' compensation and occupational safety laws). Nothing in this section shall be construed to prevent or limit the right of a worker, insurer or self-insured employer to present evidence to establish by a preponderance of the 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). However, if the board determines that a case has been improperly, incompletely or otherwise insufficiently developed or heard by the Administrative Law Judge, it may remand the case to the Administrative Law Judge for further evidence taking, correction or other necessary action.

(6) The board may affirm, reverse, modify or supplement the order of the Administrative Law Judge and make such disposition of the case as it determines to be appropriate. It shall make its decision within 30 days after the review.

(7) The order of the board shall be filed and a copy thereof sent by mail to the director and to the parties.

(8) An order of the board is final unless within 30 days after the date of mailing of copies of such order to the parties, one of the parties appeals to the Court of Appeals for judicial review pursuant to ORS 656.298 (Judicial review of board orders). The order shall contain a statement explaining the rights of the parties under this subsection and ORS 656.298 (Judicial review of board orders). [1965 c.285 §35a; 1977 c.804 §10; 1987 c.884 §12; 1990 c.2 §22; 1991 c.293 §1; 1999 c.313 §8]

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

Notes of Decisions

Where claimant does not deny receipt of first mailing of board's order, a sec­ond and later mailing of an­oth­er copy of the same order does not extend the time for ap­peal. Wise v. SAIF, 14 Or App 463, 513 P2d 1212 (1973)

Service of notice of ap­peal on claimant's attorney is constructive notice to claimant. Schneider v. Emanuel Hosp., 20 Or App 599, 532 P2d 1146 (1975), Sup Ct review denied

Where there is no notice to Workmen's Compensa­tion Board to commence the judicial review process in prescribed time there is no jurisdic­tion. Zandbergen v. Johnson, 24 Or App 151, 544 P2d 587 (1976)

Symptoms arising after hearing constitute aggrava­tion claim and are not cause for remand to take addi­tional evidence. Holmes v. SAIF, 38 Or App 145, 589 P2d 1151 (1979)

Remedy for order not explaining claimant's right to ap­peal is not to invalidate order, but to allow claimant hearing. Greenwade v. SAIF, 41 Or App 697, 598 P2d 1265 (1979), Sup Ct review denied

Where record on issue is adequate, de novo review by board permits disposi­tion of case on grounds not raised by peti­tion or cross-peti­tion. Neely v. SAIF, 43 Or App 319, 602 P2d 1101 (1979), Sup Ct review denied

Board could not consider submitted ma­te­ri­al that was not part of record, because proper pro­ce­dure to aug­ment record is by remand. Brown v. SAIF, 51 Or App 389, 625 P2d 1351 (1981); Groshong v. Montgomery Ward Co., 73 Or App 403, 698 P2d 998 (1985)

Where compensa­tion has been awarded, review is also available concerning reasonableness of attorney fee award. Neal's Truck Stop v. Giger, 53 Or App 402, 632 P2d 464 (1981)

It was abuse of discre­tion for Workers' Compensa­tion Board to refuse to remand case to referee for considera­tion of addi­tional evidence when evidence was not available to claimant at time of original hearing. Muffet v. SAIF, 58 Or App 684, 650 P2d 139 (1982)

Actual notice will not excuse failure to mail copies of review request unless actual notice occurs within time limit for mailing review request. Argonaut Insurance v. King, 63 Or App 847, 666 P2d 865 (1983)

Remand is available for case where in­for­ma­­tion is available at time of hearing, but record is incompletely developed. Bailey v. SAIF, 296 Or 41, 672 P2d 333 (1983)

Although claimant may ap­peal final determina­tion of part of claim, it does not necessarily follow that claimant must have peti­tioned for review within 30 days in order to preserve appellate challenge to board's decision; claimant had op­tion to ap­peal partial denial or await final determina­tion of balance of claim. Ragan v. Fred Meyer, Inc., 73 Or App 363, 698 P2d 988 (1985)

Where claimant requesting review of referee's order put letter requesting the review in the mail addressed to the proper party at the correct street address, but with incorrect zip code, service was adequate and delivery by Postal Service to zip code rather that street address did not nullify fact that claimant complied with require­ment for requesting review. Kahl v. SAIF, 86 Or App 203, 738 P2d 999 (1987)

Workers' compensa­tion referee's rulings on claims, which allegedly exceeded referee's jurisdic­tion, was not redressable by mandamus because exclusive review of order was provided in Workers' Compensa­tion Law and constituted plain, speedy and adequate remedy. SAIF v. Johnson, 99 Or App 64, 781 P2d 374 (1989), Sup Ct review denied

Filing of peti­tion for judicial review does not affect authority of Workers' Compensa­tion Board to withdraw order for purpose of reconsidera­tion at request of party or on its own mo­tion, provided board does so before order becomes final. SAIF v. Fisher, 100 Or App 288, 785 P2d 1082 (1990)

Where order denies attorney fees and ap­peal is not filed, board's continuing jurisdic­tion over case does not permit review of fee issue. Orozco v. U & I Group, Inc., 103 Or App 634, 798 P2d 727 (1990)

Director's disability standards do not apply where claimant does not es­tab­lish worsening of underlying condi­tion. Lewis v. McCracken Motor Freight, 108 Or App 32, 813 P2d 78 (1991)

Workers' Compensa­tion Board must express results of its evalua­tion of party's factual and legal asser­tions in order for court to determine whether board erred in denying employer's requests for board to reconsider order in light of newly developed evidence. Liberty Northwest Ins. Corp. v. Griggs, 112 Or App 44, 827 P2d 921 (1992)

Notice of ap­peal must be given to all parties to pre­vi­ous ac­tion whether or not ap­peal makes claim against all parties. Mosley v. Sacred Heart Hospital, 113 Or App 234, 831 P2d 721 (1992); Kelsey v. Drushella-Klohk, 128 Or App 53, 874 P2d 1349 (1994)

Date board's decision becomes final if not ap­pealed does not control date of finality of underlying litiga­tion. SAIF v. VanLanen, 127 Or App 735, 873 P2d 1090 (1994)

Where notice of Workers' Compensa­tion Board decision is given to party, failure to provide notice to attorney of party does not toll dead­line for filing ap­peal. Haskell Corp. v. Filippi, 152 Or App 117, 953 P2d 396 (1998), Sup Ct review denied

Where ap­peal is untimely, appellate court lacks authority to consider reason for untime­liness. Haskell Corp. v. Filippi, 152 Or App 117, 953 P2d 396 (1998), Sup Ct review denied

Board Remand of Case to Administrative Law Judge Requires Compelling Reason That

1) concerns disability; 2) was not obtainable at time of hearing; and 3) is reasonably likely to affect outcome of case. SAIF v. Avery, 167 Or App 327, 999 P2d 1216 (2000), Sup Ct review denied

Completed Cita­tions

Sahnow v. Fireman's Fund Ins. Co., 3 Or App 164, 470 P2d 378 (1970), aff'd 260 Or 564, 491 P2d 997 (1971)

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 (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.