Oregon Administrative Code

438-082-0005 Applicability; Effective Date; Repeal of Prior Rules (1) These rules apply to victims or dependents of deceased victims who apply for compensation under the Compensation Act for Victims of Crime (ORS Chapter 147 and OAR 137-076-0005, et seq.) (2) These rules are effe…

438-082-0010 Definitions (1) “Applicant” means any person who applies to the Department for Compensation under the Compensation Act for victims of Crime (ORS Chapter 147 and OAR 137-076-0005 et seq.). (2) “Board” means the Workers’ Compensation Board. (3) “Department” means the D…

438-082-0015 Request for Review by Board (1) The request for Board review of a decision of the Department shall be in writing, signed by the applicant and mailed to the Board at 2601 25th Street SE, Suite 150, Salem, Oregon 97302-1282, and shall contain the applicant’s mailing ad…

438-082-0020 Notification of Department; Premature Request for Review (1) The Board shall forthwith notify the Department in writing of the request for review and shall mail a copy of the request for review to the Department. If the Department has not yet reconsidered its initial…

438-082-0025 Acknowledgement of Request for Review; Record (1) The Board shall forthwith notify the applicant of its receipt of the request for review. The notice shall direct the applicant to inform the Board not later than 15 days after the mailing of the record by the Departme…

438-082-0030 Standard of Review; Review Without Hearing (1) The standard of review by the Board shall be de novo upon the entire record. (2) If the applicant does not request a fact finding hearing within 15 days of the mailing of the record, the review shall be confined to the r…

438-082-0035 Fact Finding Hearing (1) If the applicant requests a fact finding hearing, the Board may appoint a special hearings officer to preside over the hearing. (2) Any person considered necessary by the Board or its special hearings officer for a full determination of all i…

438-082-0040 Conduct of Hearing; Evidence; Proposed Order; Notice to Parties (1) A record of all proceedings shall be made, except that no record need be made of prehearing conferences. The record shall be transcribed only by order of the Board. (2) Subject to sections (3) and (7…

438-082-0045 Board Decision (1) In cases in which the Board’s decision is made upon a review of the record and written argument only, the Board will issue its decision in writing within a reasonable time. The decision shall be mailed to all interested parties. (2) In cases in whi…

438-082-0050 Reconsideration; No Further Review (1) Upon its own motion or the request of any interested party, within 30 days after a final decision of the Board the Board may withdraw its decision for reconsideration. On reconsideration, the Board may affirm its previous decisi…

438-082-0055 Representation by Counsel; Charging of Fee Prohibited (1) The Department shall be represented in all proceedings under these rules by the Department of Justice. (2) Any other interested party may be represented by an attorney who is member of the Oregon State Bar. (3…

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 Attorne…

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. Statutory/Other Authority: ORS 654.025(2) & 656.726(4) Statutes/Other Implemented: ORS 654.025(2) History: WCB 3-1997, f. …

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…

438-085-0021 Number For the purpose of these rules, the singular includes the plural and the plural includes the singular. Statutory/Other Authority: ORS 183.335 & 656.726(5) Statutes/Other Implemented: ORS 654.025(2) History: WCB 2-1982, f. 6-22-82, ef. 8-2-82 WCB 6-1977, f. 5-5…

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 …

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 violati…

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 wit…

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…

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 hearin…

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 controvers…

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,…

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 Judg…

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 med…

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 ava…

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 …

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, sh…

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 i…

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 the…

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 654.056(5), or requests to become a pa…

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 represen…

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 partici…

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 a…

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 fil…

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 …

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 t…

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…

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 Administ…

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 deli…

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 …

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 …

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 i…

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) Su…

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 o…

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…

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 their 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 …

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 noti…

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. Statutory/Other Authority: ORS 183.33…

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 part…

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 Adminis…