EXHIBIT A

Effective Date; Applicability
          438-005-0011 Except as otherwise provided below, these rules are effective May 1, 2003 and shall apply to all cases pending before the Hearings Division and the Board under the provisions of ORS Chapter 656 on and after that date. These rules are also applicable to cases pending before the Hearings Division and the Board arising under ORS Chapter 655.

 

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 9-1990(Temp), f. 8-24-90, cert. ef. 8-27-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1993, f. 5-19-93, cert. ef. 6-1-93; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

EXHIBIT B

Adoption of Attorney General's Model Rules
          438-005-0015 [To the extent that the following rules are applicable to contested cases under the Workers' Compensation Law (Chapter 656), t] The Board hereby adopts [by reference] OAR [137-001-0005 through 137-001-0085, 137-003-0055 and] 137-004-0010 [(Attorney General's Model and uniform Rules)], as adopted by the Department of Justice effective January 27, 1986.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 183.341(4)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88

EXHIBIT C

[Notice of Rulemaking]
          [438-005-0016 (1) Prior to adoption, amendment or repeal of any administrative rule, other than a temporary rule adopted under ORS 183.355(5), the Board shall give notice of the intended action:

          (a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days before the effective date of the intended action;

          (b) By mailing a copy of the notice to persons on the Board's mailing list established pursuant to ORS 183.335(7) at least 28 days before the effective date of the intended action; and

          (c) By mailing or furnishing a copy of the notice to:

          (A) The Oregonian;

          (B) The Associated Press; and

          (C) The Capitol Press Room.]

          [(2) The Board shall give notice of any administrative rulemaking hearing:

          (a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 14 days before the hearing; and

          (b) By mailing notice of the hearing to any person requesting the hearing and to the persons on the Board's mailing list established pursuant to ORS 183.335(7) at least 21 days before the hearing.]

Stat. Auth.: ORS 656.726(5) & ORS 654.025(2)
Stats. Implemented: ORS 183.341(4)
Hist.: WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 1-1995, f. 3-20-95, cert. ef. 6-1-95

EXHIBIT D

General Definitions
          438-005-0040 (1) "Administrative Law Judge" means an individual appointed by the Board to perform the duties, functions and powers provided in ORS 654, 655 and 656, and such other duties, functions and powers as may be prescribed by the Board.

(2) "Aggravation" means an actual worsening of the compensable condition(s) after the last award or arrangement of compensation, which is established by medical evidence supported by objective findings, and otherwise satisfies the statutory requirements of ORS 656.273.

(3) "Aggravation rights" means the time periods specified in ORS 656.273 during which an injured worker is entitled to additional compensation for worsened conditions as a matter of right.

(4) "Benefits Section" means the Benefits Section of the Workers' Compensation Division of the Department of Consumer & Business Services.

(5) "Board" means the Workers' Compensation Board.

(6) "Claimant" means an injured worker or any other person entitled to initiate or continue a claim for compensation.

(7) "Director" means the Director of the Department of Consumer & Business Services or his/her designee.

(8) "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.

[(8)] (9) "Hearings Division" means the Hearings Division of the Workers' Compensation Board.

[(9)] (10) "Insurer" means the State Accident Insurance Fund Corporation, an insurer authorized under ORS Chapter 731 to transact workers' compensation insurance in this state, or, except where the context requires otherwise, an assigned claims agent in cases under ORS 656.054.

[(10)] (11) "Party" means a claimant, an employer, including a noncomplying employer, an assigned claims agent in cases under ORS 656.054, and an insurer.

[(11)] (12) "Self-insured employer" means an employer or group of employers certified under ORS 656.430 as meeting the qualifications set out in ORS 656.407.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02

EXHIBIT E

Specification of Issues
          438-006-0031 Not later than 15 days after the first disclosure of documents under OAR 438-007-0015, the party who requested the hearing shall, on a form prescribed by the Board, file with the Board and simultaneously mail copies to all other parties a specific listing of all issues to be raised at the hearing and all relief requested. Amendments shall be freely allowed up to the date of the hearing. If, during the hearing, the evidence supports an issue or issues not previously raised, the Administrative Law Judge may allow the issue(s) to be raised during the hearing. In such a situation, [T]the Administrative Law Judge may continue the hearing upon motion of an adverse party [if the party is surprised and prejudiced by the additional issue(s) and a continuance is necessary to allow the party an opportunity to cure the surprise and prejudice] pursuant to OAR 438-006-0091.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.307 & ORS 656.726(5)
Hist.: WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88

EXHIBIT F

Response
          438-006-0036 Not later than 15 days after receiving the listing of issues and other information required by OAR 438-006-0031, a party defending against a request for hearing shall, on a form prescribed by the Board, file and simultaneously mail copies to all other parties a response specifying the respondent's position on the issues raised and relief requested and any additional issues raised and relief requested by the respondent. Amendments shall be freely allowed up to the date of the hearing. If, during the hearing, the evidence supports an issue or issues not previously raised, the Administrative Law Judge may allow the issue(s) to be raised during the hearing. In such a situation, [T]the Administrative Law Judge may continue the hearing upon motion of an adverse party [if the party is surprised and prejudiced by the additional issue(s) and a continuance is necessary to allow the party an opportunity to cure the surprise and prejudice] pursuant to OAR 438-006-0091.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.307 & ORS 656.726(5)
Hist.: WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88

EXHIBIT G 

Expedited Remedy for Failure to Pay Temporary Disability
          438-006-0075 (1) If it is alleged that the self-insured employer or insurer has terminated temporary disability compensation without: the attending physician advising the worker and documenting in writing that the worker is released to return to regular employment; or the injured worker's actual return to regular or modified employment; or the attending physician advising the worker and documenting in writing that the worker is released to return to modified employment, when such employment has been offered in writing to the worker and the worker fails to begin such employment; or any other event that causes temporary disability benefits to be lawfully suspended, withheld or terminated under ORS 656.262(4) or other provisions under chapter 656; or the issuance of a determination order or notice of closure; or authorization of the Board or the Director, 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.

(2)[(a)] If the Hearings Division determines that the amount in controversy is less than $1,000, the case shall be referred to the Expedited Claims Service under the provisions of Division 013 of these rules;

(3) [(b)] If the matter cannot be resolved by referral to the Expedited Claims Service, the Hearings Division shall immediately upon receipt of the motion and affidavit issue an Order requiring the self-insured employer or insurer to show cause within 15 days why said compensation has not been provided to the claimant. The show cause order shall contain notice of the date, time and place of the show cause hearing. Within 10 days after the close of the record, the Administrative Law Judge shall enter an order denying or granting temporary disability compensation and awarding penalties and attorney fees when appropriate.

[(3) Immediately upon the conclusion of the hearing or expiration of the 15 days, the Administrative Law Judge shall enter an Order denying or granting temporary disability compensation and awarding penalties and attorney fees when appropriate.]

Stat. Auth.: ORS 656.726(5); ORS 656.291(4)
Stats. Implemented: ORS 656.262(4), ORS 656.291 & ORS 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

EXHIBIT H

Postponement of Hearings
          438-006-0081 (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" shall not include:

[(1)] (a) Failure of the insurer or self-insured employer to refer, or delay in referring, the case or any pertinent information to its representative;

[(2)] (b) Unavailability of a party, lay witness [(other than a medical expert witness)] or representative due to nonemergency [medical or dental appointment,] occupational, personal or professional business or appointments, or unwillingness to appear, provided that a postponement may be granted if the unavailable person is a worker who is temporarily working out of state and is reasonably expected to return to the state within a time certain or is a person who has been duly subpoenaed and has failed to comply with the subpoena;

[(3)] (c) An attorney's, party's, representative's or witness' conflict with [administrative] proceedings before another administrative body that are scheduled more than three days after mailing of the Hearings Division’s notice of hearing;

[(4)] (d) Incomplete case preparation, unless the Administrative Law Judge finds that completion of the record could not be accomplished with due diligence. [A subpoena of a medical expert witness is not required to satisfy due diligence.]

[(5)] (2) For purposes of this rule, "due diligence" shall include, but not be limited to, a party’s inability to produce, because of [the] unavailability, [of] a medical or vocational expert witness for direct examination at hearing or for cross-examination at hearing or by deposition/interrogatories prior to a scheduled hearing, provided that the request for cross-examination was made no later than seven (7) days after the requesting party received from another party a copy of a report from the medical or vocational expert witness accompanied by written notice that the sending party is submitting the report as a proposed exhibit for admission into evidence at a scheduled hearing. A party need not subpoena a medical or vocational expert witness to establish due diligence under this section.

Stat. Auth.: ORS 656.283(4)
Stats. Implemented: ORS 656.307 & ORS 656.726(5)
Hist.: WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, cert. ef. 4-1-89; WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97

EXHIBIT I

Continuances
          438-006-0091 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, [T]the Administrative Law Judge shall state the specific reason for the continuance. A continuance may be granted:

(1) If circumstances, including the time allocated for the scheduled hearing, [is insufficient to allow] prevent all parties [to present] from presenting their evidence and argument;

(2) Upon a showing of due diligence, as described in OAR 438-006-0081(2), if necessary to afford reasonable opportunity to cross-examine on documentary medical or vocational evidence;

(3) Upon a showing of due diligence, as described in OAR 438-006-0081(2), if necessary to afford reasonable opportunity for the party bearing the burden of proof to obtain and present final rebuttal evidence [or for any party to respond to an issue raised for the first time at a hearing]; [or]

(4) Upon motion of an adverse party, if that party is surprised and prejudiced by a new issue raised during a hearing; or

[(4)] (5) For any reason that would justify postponement of a scheduled hearing under OAR

438-006-0081.

Stat. Auth.: ORS 656.283(4) & ORS 656.726(5)
Stats. Implemented: ORS 656.307 & ORS 656.726(5)
Hist.: WCB 3-1987(Temp), f. 8-27-87, cert. ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89

EXHIBIT J

Change of Administrative Law Judge
          OAR 438-006-0095 (1) [An Administrative Law Judge may withdraw from a case whenever he or she considers himself or herself disqualified.] Except as provided in section (3) of this rule, an Administrative Law Judge shall disqualify himself or herself from a proceeding in which the Administrative Law Judge’s impartiality reasonably may be questioned, including, but not limited to, instances when:

(a) The Administrative Law Judge has a bias or prejudice concerning a party, a representative, or any other participant in the proceeding before the Administrative Law Judge, or has knowledge, obtained from sources outside the proceeding, of disputed evidentiary facts concerning the proceeding;

(b) The Administrative Law Judge served as a lawyer in the matter in controversy, or a lawyer with whom the Administrative Law Judge previously was associated served during the period of association as a lawyer in the matter, or the Administrative Law Judge or the lawyer has been a material witness in the matter;

(c) The Administrative Law Judge knows that the Administrative Law Judge, individually or as a fiduciary, or the Administrative Law Judge’s spouse, parent or child, wherever residing, or any other person residing in the Administrative Law Judge’s household has a financial interest in the subject matter in controversy, is a party to the proceeding or has any other interest that could be substantially affected by the outcome of the proceeding;

(d) The Administrative Law Judge, the Administrative Law Judge’s spouse, parent or child, wherever residing, or any other person residing in the Administrative Law Judge’s household:

          (i) Is a party to the proceeding, or an officer, director, partner or trustee of a party;

          (ii) Is acting as a lawyer in the proceeding; or

          (iii) Is, to the Administrative Law Judge’s knowledge, likely to be a material witness in the proceeding.

(2) [Any party may request that the Administrative Law Judge be removed from a case, on grounds of personal bias or conflict of interest, by filing with the Presiding Administrative Law Judge, promptly upon discovery of the alleged facts, an affidavit which sets forth in detail the matters believed to constitute the grounds for disqualification.] For purposes of this rule:

(a) "Fiduciary" includes relationships such as personal representative, trustee, conservator and guardian;

(b) "Financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, advisor or other active participant in the affairs of a party, except that:

          (i) Ownership in a mutual or common investment fund that owns securities is not a "financial interest" unless the Administrative Law Judge participates in the management of the fund;

          (ii) Holding an office in an educational, religious, charitable, fraternal or civic organization is not a "financial interest" in property of the organization;

          (iii) The proprietary interest of a policy holder in a mutual insurance company, a depositor in mutual savings association, or a similar proprietary interest is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and

          (iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(3) [If, in the opinion of the Presiding Administrative Law Judge, the request for disqualification is filed with due diligence and the supporting affidavit is sufficient on its face, the Presiding Administrative Law Judge shall either disqualify the Administrative Law Judge and assign another Administrative Law Judge to the case or order a hearing on the allegations in the affidavit.] An Administrative Law Judge who would be disqualified under this rule may, rather than disqualify himself or herself from the proceeding, disclose to the parties the basis of the disqualification. If, after such disclosure, any party wishes the Administrative Law Judge to disqualify himself or herself from the proceeding, the Administrative Law Judge shall do so. If, after such disclosure, the parties all agree in writing or on the record that the Administrative Law Judge’s impartiality is not in question because of the information disclosed to the parties, the Administrative Law Judge may participate in the proceeding. Any writing signed by or on behalf of all parties shall be incorporated into the record of the proceeding, or, in the case of a mediation, made part of the Administrative Law Judge’s mediation file.

(4) [If the Presiding Administrative Law Judge does not disqualify the Administrative Law Judge, the Presiding Administrative Law Judge shall so rule on the record, stating the grounds for his ruling, and the case shall proceed with the Administrative Law Judge.] Immediately upon discovering the asserted basis, any party may request that an Administrative Law Judge disqualify himself or herself from a proceeding on any basis set forth in section (1) of this rule. If the Administrative Law Judge does not then disqualify himself or herself, any party may promptly file a request for disqualification of the Administrative Law Judge with the Presiding Administrative Law Judge. Such a request shall include an affidavit setting out, in detail, the basis for the requested disqualification.

(5) Following review of the request for disqualification and accompanying affidavit, the Presiding Administrative Law Judge will determine, in his/her discretion, whether a hearing on the allegations in the affidavit shall be held. Following such a hearing or following the Presiding Administrative Law Judge’s determination that a hearing will not be held, the Presiding Administrative Law Judge shall issue a written decision concerning the disqualification request. If the Presiding Administrative Law Judge determines that the Administrative Law Judge should be disqualified, the Presiding Administrative Law Judge shall so state and explain the basis for his/her decision, and shall assign another Administrative Law Judge to the case. If the Presiding Administrative Law Judge determines that the Administrative Law Judge should not be disqualified, the Presiding Administrative Law Judge shall so state and explain the basis for his/her decision, and the case shall proceed with the Administrative Law Judge.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88

EXHIBIT K

Ex Parte Communications
          438-006-0099 (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 merits of a proceeding to which the Administrative Law Judge is assigned and which is not made to all parties to the proceeding.

(2) Ex parte communications are prohibited.

(3) Notwithstanding section (2) of this rule, an assigned Administrative Law Judge may communicate with a party, when necessary for administrative or scheduling purposes, so long as the communication does not involve the merits of a proceeding and the Administrative Law Judge believes that no party’s legal rights or duties will be affected.

(4) An Administrative Law Judge shall promptly disclose to all parties the substance of any communication prohibited by this rule. All parties shall be allowed a reasonable opportunity to respond to a prohibited communication.

(5) This rule does not apply to communications made to, or by, an Administrative Law Judge acting as a mediator.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.:

EXHIBIT L

Entitlement to Claims Information -- Disclosure Requirements
          438-007-0015 (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 include the self-insured employer, claims processing agents and assigned claims processing agents for non-complying employers.

(2) Documents pertaining to claims are obtained by mailing a copy of the Request for Hearing, or a written demand accompanied by an attorney retention agreement or medical information release, to the insurer. Within 15 days of said mailing, the insurer shall furnish the claimant and other insurers, without cost, originals or legible copies of all medical and vocational reports and other documents pertaining to the claim(s) as specified below.

(3) Upon written demand by the insurer, the claimant shall within 15 days of the mailing of the demand, furnish to the insurer, without cost, originals or legible copies of all medical and vocational reports and other documents pertaining to the claim(s) as specified below, which the claimant did not receive from the insurer [or self-insured employer] making the demand. In cases involving multiple insurers, an insurer shall seek discovery in accordance with section (9) of this rule.

(4) Documents acquired after the initial exchanges shall be provided to the insurer(s) and the claimant within seven days after the disclosing party's receipt of the documents.

(5) For the purpose of this rule, "documents pertaining to the claim(s)" or any variation thereof means documents and recordings, whether written or electronic or in any other form, which consist of the following items applicable to the workers' compensation claim:

(a) Medical and vocational reports, including any correspondence to and from the medical and vocational experts who provide the reports or who agree to testify on behalf of the party sending correspondence;

(b) Official forms and notices required by ORS Chapter 656, the Workers' Compensation Division or the Workers' Compensation Board, as they relate to the claim(s);

(c) Investigative statements, including a party's statement, and investigative summaries;

(d) Correspondence to and from the Workers' Compensation Division and the Workers' Compensation Board; and

(e) Upon specific request, records of all compensation paid, payroll records, records or statements of wages earned by the claimant, and copies of bills from medical and vocational service providers rendering treatment or services to the claimant.

(6) After the disclosure required by this rule, either the claimant or the insurer may request further specific discovery of other factual documents relevant and material to an issue raised by the Request for Hearing or the Response thereto, or any other issue which thereafter arises and is subject to the jurisdiction of the Workers' Compensation Board. [Any dispute regarding the discoverability of such further documents shall be resolved by the Administrative Law Judge assigned to the hearing.]

(7) Notwithstanding any other provision of this section, the following documents pertaining to the claim(s) are not discoverable:

(a) Material protected under the attorney/client privilege as defined in Oregon Rules of Evidence ORS 40.225 Rule 503;

(b) Material which is the work product of any attorney, except that correspondence and any inclusions sent to a medical or vocational expert who writes a report that is otherwise subject to disclosure under these rules or who agrees to testify at the request of the corresponding party shall be discoverable under subsection (5)(a) of this rule;

(c) Material reflecting the mental impressions, case value or merit, plans or thought processes of the claimant or insurer;

(d) Material protected by ORS 656.260; and

(e) Material protected from disclosure under OAR 438-007-0017 (impeachment).

(8) It is the express policy of the Board to promote the full and complete discovery of all relevant facts and expert opinion bearing on a claim being litigated before the Hearings Division, consistent with the right of each party to due process of law. Failure to comply with this rule [shall], if found to be unreasonable or unjustified, [be considered delay or refusal under ORS 656.262(11) and] may result in the imposition of penalties and attorney fees, exclusion of evidence, [and/or] continuance of a hearing (subject to OAR 438-006-0091), and/or dismissal of a request for hearing.

(9) When a new party is joined into existing litigation, the disclosure of discoverable documents and the exhibit list shall be made available to the new party by the insurer with the lowest WCB case number. This disclosure shall be made as soon as reasonable but no later than 15 days from the insurer's receipt of notice of the joinder of the new party.

(10) Any dispute under this rule regarding whether something is discoverable, in whole or in part, will be resolved by the assigned Administrative Law Judge or the designee of the Presiding Administrative Law Judge.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.307 & ORS 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; Suspended by WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-1997, f. 12-12-97, cert. ef. 3-1-98

EXHIBIT M

Exchange and Admission of Exhibits at Hearing
          438-007-0018 (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 the matters in dispute in the hearing, together with an index. The index shall include the document numbers, description of each document, author, number of pages and date of the document. The documents shall be arranged in chronological order and numbered, in Arabic numerals, in the lower right corner of each page, beginning with the document of earliest date. The numbers shall be preceded by the designation "Ex," and pagination of multiple-page documents shall be designated by a hyphen followed by the page number. For example, page two of document two shall be designated "Ex 2-2." A physician's chart notes constitute a multi-page document to the extent that the date of each individual chart note is subsequent to the date of the preceding exhibit and is earlier than the date of the next exhibit. However, for deposition transcripts, only the cover page of the deposition need be numbered; i.e., "Ex. 3."

(2) Not less than 14 days before the hearing, or within seven days of receipt of the insurer document index and documents, whichever is later, the claimant shall provide the insurer(s) or self-insured employer(s) legible copies of any additional documents that are relevant and material to the matters in dispute in the hearing. The additional documents shall be marked and accompanied by a supplemental document index, prepared in the same manner as the insurer documents and index and numbered to coincide in chronological order with the insurer's documents. Letter subdesignations shall be used to ensure chronological numbering. For example, a document which is chronologically between documents six and seven of the insurer documents shall be designated "Ex 6A."

(3) Before or at the hearing, the parties shall delete from their indexes and packets of documents those documents which are cumulative, or which no party can in good faith represent to be relevant and material to the issues, and the revised indexes and packets of documents shall be submitted to the Administrative Law Judge. For compliance with this rule, it is sufficient for the parties to mark neatly through the index description of the documents not being offered in evidence with ink, and to remove the corresponding documents from the packets submitted to the Administrative Law Judge.

(4) Subject to ORS 656.287(l), at the hearing the Administrative Law Judge may in his or her discretion allow admission of additional medical reports or other documentary evidence not disclosed as required by OAR 438-007-0015. In the exercise of this discretion, the Administrative Law Judge shall determine whether material prejudice has resulted from the timing of the disclosure and, if so, whether there is good cause for the failure to timely disclose that outweighs any prejudice to the other party or parties. Following a finding of material prejudice, the Administrative Law Judge may exclude a document or continue the hearing for such action as is appropriate to cure the material prejudice caused by the late disclosure of the document.

[(5) Within the time provided for the initial exchanges of exhibits and indexes under Section (1), if a party intends to present any portion of the "reconsideration record" obtained from the Director for admission under ORS 656.283(7) at the hearing, that party shall notify the other parties.]

[(6) The notifying party's copy of the Director's reconsideration record is subject to the "disclosure" requirements of OAR 438-007-0015. However, presentation of the Director's reconsideration record is not subject to the "exchange and admission" requirements of OAR 438-007-0018.]

[(7) At the hearing, rather than presenting the Director's reconsideration record for admission, the parties shall present their oral or written stipulation identifying the exhibits in the hearing record which were also included in the Director's reconsideration record under ORS 656.283(7). If the parties cannot reach an agreement, any disputed portions of the Director's reconsideration record may be presented for admission.]

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02

EXHIBIT N

Subpoenas; Witness Fees
          438-007-0020 [Witness fees and mileage in workers' compensation cases are payable as in civil actions.] (1) Attendance and testimony at a hearing, or the production of documentary or physical evidence under a witness’ control, may be compelled by subpoena.

(2) Subpoenas may be issued by an Administrative Law Judge or the attorney of record of a party. Upon request, the Hearings Division shall provide blank subpoenas.

(3) Subpoenas issued on behalf of a party may be served by the party or the party’s representative. Service may be made in person or by certified mail or other mail that provides for a receipt signed by the recipient.

(4) Subpoenas shall be served far enough in advance of a hearing to allow the witness reasonable time to comply with the subpoena.

(5) Witness fees and mileage shall be provided at the time the subpoena is served, in the amount provided for in civil actions.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.283(8), ORS 656.724(4) & ORS 656.726(2)(c)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88

EXHIBIT O

Offers of Proof
          OAR 438-007-0024 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 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.:

EXHIBIT P

Hearing for Purpose of Own Motion Recommendation
          OAR 438-007-0027 (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 proceeding that the Administrative Law Judge deems achieves substantial justice (without notifying or requesting permission from the Board prior to going forward with such a fact-finding hearing or other proceeding) for the purpose of providing an unappealable recommendation to the Board regarding the issue(s) within the Board’s Own Motion jurisdiction.

(2) If the Administrative Law Judge chooses to proceed with a fact-finding hearing or other proceeding as described in section (1), the Administrative Law Judge shall:

(a) Make findings of fact and conclusions of law regarding the Own Motion issue(s) within the time required to issue any appealable order in the related case issued regarding matters within the Administrative Law Judge’s jurisdiction; and

(b) Forward to the Board a separate, unappealable recommendation with respect to the Own Motion issue(s) and a copy of any appealable order in the related case issued regarding matters within the Administrative Law Judge’s jurisdiction.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.:

EXHIBIT Q

DIVISION 022

RULEMAKING PROCEDURES

Adoption of Attorney General’s Model Rules; Notice of Rulemaking

          438-022-0005 To the extent that the following rules are applicable to the Workers’ Compensation Law (Chapter 656), the Board hereby adopts by reference OAR 137-001-0005 through 137-001-0085 (Attorney General’s Model Rules of Procedure), as adopted by the Department of Justice effective January 1, 2000.

Stat. Auth.: ORS 656.726(5) & ORS 654.025(2)
Stats. Implemented: ORS 183.341(4)
Hist.:

Notice of Rulemaking
          438-022-0010 (1) Prior to adoption, amendment or repeal of any administrative rule, other than a temporary rule adopted under ORS 183.355(5), the Board shall give notice of the intended action:

(a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days before the effective date of the intended action;

(b) By mailing a copy of the notice to persons on the Board's mailing list established pursuant to ORS 183.335(7) at least 28 days before the effective date of the intended action; and

(c) By mailing or furnishing a copy of the notice to:

(A) The Oregonian;

(B) The Associated Press; and

(C) The Capitol Press Room.

(2) The Board shall give notice of any administrative rulemaking hearing:

(a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 14 days before the hearing; and

(b) By mailing notice of the hearing to any person requesting the hearing and to the persons on the Board's mailing list established pursuant to ORS 183.335(7) at least 21 days before the hearing.

Stat. Auth.: ORS 656.726(5) & ORS 654.025(2)
Stats. Implemented: ORS 183.341(4)
Hist.: