Oregon Administrative Code

438-005-0046 Filing and Service of Documents; Correspondence (1) Filing: (a) Except as otherwise provided in these rules, "filing" means the physical delivery of a thing to any permanently staffed office of the Board, or the date of mailing; (b) In addition to the procedures othe…

438-005-0050 Notice of Claim Acceptance and Hearing Rights under ORS 656.262(6)(d) (1) Every notice of claim acceptance shall include all of the information prescribed by ORS 656.262(6)(b) and OAR 436-001-0600 (including Bulletin No. 379). (2) In the event that the insurer or sel…

438-005-0053 Notice of Denial of Responsibility (1) If a self-insured employer or insurer intends to deny responsibility for a claim on the basis of injury or exposure with another employer, the self-insured employer or insurer shall, within the period allowed under ORS 656.262 f…

438-005-0055 Notice of Claim Denial and Hearing Rights (1) Except for a denial issued under ORS 656.262(15), in addition to the requirements of 656.262 and OAR 436-001-0060 (Bulletin No. 379), the notice of denial shall specify the factual and legal reasons for denial; and shall …

438-005-0060 Notice of Partial Denial and Hearing Rights Every notice of partial denial shall set forth with particularity the injury, condition, benefit or service for which liability is denied and the factual and legal reasons therefor. The notice shall be in the form specified…

438-005-0065 Manner of Giving Notice Notice of denial or other notice from which statutory time runs against a claimant shall be in writing and shall be delivered by registered or certified mail with return receipt requested or by personal service meeting the requirements for ser…

438-005-0070 Request for Hearing Proceedings before the Hearings Division are begun by filing a request for hearing meeting the requirements of ORS 656.283 and OAR 438-005-0046. The request for hearing should be on a form prescribed by the Board. A request by an insurer or self-i…

438-005-0072 Expedited Hearing/Compensation Stayed under ORS 656.313 For purposes of OAR chapter 438, divisions 005–006, compensation is deemed stayed under ORS 656.313 if the employer/insurer has filed a request for hearing on or after July 1, 1990 on a reconsideration order and…

438-005-0075 Duty to Forward Misdirected Request If a claimant sends a request for hearing or Board review to the employer or insurer, the employer or insurer shall promptly forward the request to the Board. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) St…

438-006-0020 Acknowledgment; Notice of Conference and Hearing in Ordinary Hearing Process The Hearings Division shall acknowledge receipt of a request for hearing. Such acknowledgment may include notice of date for an informal prehearing conference pursuant to OAR 438-006-0062 or…

438-006-0031 Specification of Issues (1) Consistent with the Board's policy described in OAR 438-005-0035, the request for hearing under 438-005-0070 filed with the Board shall include, on a form prescribed by the Board, a specific listing of all issues to be raised at the hearin…

438-006-0036 Response (1) Consistent with the Board's policy described in OAR 438-005-0035 and subject to 438-006-0045(2), not later than 21 days after the issuance of the Board's Notice of Hearing under OAR 438-006-0020, a party defending against a request for hearing shall, on …

438-006-0037 Waiver of Notice A party may waive objection to lack of notice, or a defect in the form of notice, of any issue raised at a hearing. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.307, 656.388, 656.593 & 656.726(4) History: WCB 5-1987, …

438-006-0045 Motions, Arguments (1) Except for motions under section (2) of this rule, unless otherwise agreed among the parties and the Administrative Law Judge, pre or post hearing motions shall be filed in writing and copies shall be simultaneously served on all parties or the…

438-006-0050 Preliminary Rulings The Presiding Administrative Law Judge or delegate shall rule on all preliminary matters. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.307, 656.388, 656.593 & 656.726(4) History: WCB 3-2022, minor correction filed …

438-006-0055 Depositions Depositions of medical or vocational experts are permitted by agreement of the parties, or by approval of an Administrative Law Judge, subject to the provisions of ORS 656.285. Depositions of claimants are permitted in the manner prescribed by ORS 656.262…

438-006-0062 Prehearing Conference (1) In accordance with ORS 656.726(5), an informal prehearing conference may be held by the Hearings Division to: (a) Expedite claim adjudication; (b) Amicably dispose of controversies, if possible; (c) Narrow issues; and (d) Simplify the method…

438-006-0064 Prehearing Matters Regarding Multiple Employer/Insurer Cases (1) In cases where the initially scheduled hearing has been postponed because of the need to join one or more potentially responsible employers or insurers, the parties shall participate in any prehearing c…

438-006-0065 Consolidation/Joinder/Bifurcation (1) An Administrative Law Judge shall consolidate into one proceeding all cases in which a claimant has requested hearings involving denials of responsibility for a claim issued by insurers or self-insured employers under ORS 656.308…

438-006-0071 Failure of Party to Pursue or to Appear at Hearing (1) A request for hearing may be dismissed if an Administrative Law Judge finds that the party that requested the hearing has abandoned the request for hearing or has engaged in conduct that has resulted in an unjust…

438-006-0075 Expedited Remedy for Failure to Pay Temporary Disability (1) The claimant may file with the Hearings Division with copies to the insurer, a motion supported by affidavit asserting the failure to receive such compensation if it is alleged that the self-insured employe…

438-006-0078 Request for Expedited Hearing (1) If it is alleged that the claimant is suffering a financial hardship or medical hardship, the claimant may file with the Presiding Administrative Law Judge with copies to the insurer, a written motion asserting the hardship and reque…

438-006-0081 Postponement of Hearings (1) A scheduled hearing shall not be postponed except by order of an Administrative Law Judge upon a finding of extraordinary circumstances beyond the control of the party or parties requesting the postponement. "Extraordinary circumstances" …

438-006-0091 Continuances The parties shall be prepared to present all of their evidence at the scheduled hearing. Continuances are disfavored. The Administrative Law Judge may continue a hearing for further proceedings. If a continuance is granted, the Administrative Law Judge s…

438-006-0095 Change of Administrative Law Judge (1) Except as provided in section (4) of this rule, an Administrative Law Judge shall disqualify themselves from a proceeding in which the Administrative Law Judge’s impartiality reasonably may be questioned, including, but not limi…

438-006-0099 Ex Parte Communications (1) An ex parte communication is an oral, written or electronic communication between an assigned Administrative Law Judge and a party, a party’s representative or someone with a substantial interest in the outcome of the proceeding about the …

438-006-0100 Representation by Counsel (1) Except as permitted by ORS 656.291 and this rule, parties that are not natural persons and state agencies must be represented by members of the Oregon State Bar. The Board encourages injured workers also to be represented in formal heari…

438-006-0110 Hearing Security Any party or attorney having knowledge or reasonable belief that any party or witness to the hearing may potentially present a danger or may be a threat to anyone involved in the claim or hearing shall immediately notify the hearing Administrative La…

438-006-0115 Motion to Dismiss a Party under ORS 656.308(2)(c) (1) If an insurer or self-insured employer is alleging that the record does not contain substantial evidence to support a finding of responsibility against it, the insurer or self-insured employer may file a “written …

438-007-0005 Medical and Vocational and Other Documentary Evidence (1) To avoid unnecessary delay and expense medical evidence should be presented in the form of written reports and should include: (a) History of the injury or disease; (b) Pertinent medical history; (c) Present c…

438-007-0010 Competency of Vocational Experts Vocational reports and testimony are admissible as expert opinion evidence if the Administrative Law Judge finds the author or witness to be qualified as an expert or if the parties stipulate to the author’s or witness’ qualifications…

438-007-0015 Entitlement to Claims Information — Disclosure Requirements (1) With respect to a claim for workers' compensation benefits and as used in this section, references to the insurer and the claimant include persons acting on their behalf, and references to the insurer in…

438-007-0016 Disclosure of Expert Witness Required Within the times provided for the initial exchanges of exhibits and indexes under OAR 438-007-0018 each party shall disclose to all other parties the identity of each expert witness the party will call to testify at the hearing. …

438-007-0017 Impeachment Evidence (1) Impeachment evidence is material which: (a) Attacks the capacity of the witness to perceive, recall or recount; (b) Tends to establish that the witness has a character for untruthfulness; (c) Establishes prior convictions for felonies or crim…

438-007-0018 Exchange and Admission of Exhibits at Hearing (1) Not later than 28 days before the hearing, the insurer or self-insured employer shall provide the claimant and other insurer or self-insured employer legible copies of all documents that are relevant and material to t…

438-007-0019 Testimony at Hearings All testimony at the hearing shall be upon oath or affirmation administered by the Administrative Law Judge. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656.726(4) Statutes/Other Implemented: ORS 656.726(2)(b) History: WCB 5-1987,…

438-007-0020 Subpoenas; Witness Fees (1) Whenever a party has requested a hearing, a subpoena may be issued to compel: (a) Attendance and testimony at a hearing; or (b)The production of documentary or physical evidence under a witness' control at or before a hearing. (2) Subpoena…

438-007-0022 Manner of Taking Testimony of Lay Witnesses (1) Testimony of lay witnesses shall be taken by personal appearance of the witness before the Administrative Law Judge at the hearing. (2) When a lay witness is unable to attend the hearing due to extraordinary circumstanc…

438-007-0023 Order of Presentation of Evidence and Argument at Hearing The party bearing the burden of proof on an issue in a hearing has the right of first and last presentation of evidence and argument on the issue. Statutory/Other Authority: ORS 656.307, 656.388, 656.593 & 656…

438-007-0024 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. Statutory/Other Authority: ORS 656.72…

438-007-0025 Reconsideration (1) The Administrative Law Judge may reopen the record and reconsider the decision before a request for review is filed or, if none is filed, before the time for requesting review expires. Reconsideration may be upon the Administrative Law Judge’s own…

438-007-0027 Hearing for Purpose of Own Motion Recommendation (1) Where the Administrative Law Judge determines that an issue(s) raised by a party is within the Board’s Own Motion jurisdiction, the Administrative Law Judge may proceed with a fact-finding hearing or other proceedi…

438-007-0030 Unofficial Recording of Hearing Prohibited An Administrative Law Judge shall prohibit broadcasting, televising, sound or video recording and the taking of photographs within the hearing room and of events in the hearing room from outside the hearing room while the he…

438-007-0040 Electronic Documents (1) If any party, in the regular course of the party’s business or activity, has kept or recorded any memorandum, writing, entry, print, reproduction or a combination thereof, of any act, transaction, occurrence or event, and in the regular cours…

438-007-0045 Translation of Documents (1) Subject to section (2), all documents admitted at hearing shall be written in the English language. (2) Any document that contains language that is not written in the English language may be admitted as evidence if: (a) the parties stipul…

438-009-0001 Special Definitions As used in this division: (1) "Claim Disposition Agreement" means a written agreement pursuant to ORS 656.236(1), executed by all parties in which a claimant agrees to release rights, or agrees to release an insurer or self-insured employer from o…

438-009-0005 Settlement Stipulations (1) Contested matters arising out of a claim closure may be resolved by the parties at any time after the conclusion of the reconsideration proceeding under ORS 656.268, whether or not a hearing has been requested by a party. (2) Any contested…

438-009-0010 Disputed Claim Settlements (1) Any document submitted for approval by the Board or the Hearings Division as a settlement of a denied or disputed claim shall be in the form specified by this rule. (2) A disputed claim settlement shall recite, at a minimum: (a) The dat…

438-009-0015 Notice of Settlement; Submission of Documents (1) The party that requested the hearing shall promptly notify the Presiding Administrative Law Judge, or delegate, when a case is settled in whole or in part. (2) The party that requested Board review shall promptly noti…

438-009-0020 Claim Disposition Agreements; Form Any document filed with the Board for approval by the Administrative Law Judge who mediated the agreement or the Board Members as a claim disposition agreement shall: (1) Contain the terms, conditions, and information as prescribed …