BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON

In the Matter of the Adoption of
Permanent Amendments to the
Rules of Practice and Procedure for
Contested Cases Under the Workers'
Compensation Law, Relating to
OAR 438-005-0046
(Filing and Service of Documents;
Correspondence) and OAR 438-022-0005
(Rulemaking Procedures).
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WCB ADMIN. ORDER 1-2006
ORDER OF ADOPTION

            1.   On September 20, 2006, the Workers' Compensation Board filed a Notice of Proposed Rulemaking hearing with the Secretary of State, giving notice of its intent to amend permanent rules of practice and procedure relating to OAR 438-005-0046 (Filing and Service of Documents; Correspondence) and OAR 438-022-0005 (Rulemaking Procedures).  Copies of the notice were distributed to the Oregonian, the Associated Press, and the Capitol Press in the Capitol Press Room on September 22, 2006.  The notice was published in the Secretary of State's November 2006 Administrative Rule Bulletin.

            In October and November 2006, notice of this hearing was posted on the Board's website at:  http://www.cbs.state.or.us/external/wcb/wcbrule/rules.htm.  On October 2, 2006, copies of the notice, as well as the proposed rules, were also mailed to all interested parties whose names appear on the Board's mailing list.  Notice of the hearing was published in the September and October 2006 issues of the Board's News and Case Notes, which were posted on the Board's website in early October and November 2006, respectively.  In October and November 2006, via e-mail, members of the Workers' Compensation Section were notified of publication of the September and October 2006 issues of the Board's News and Case, including a link to those documents.

            Thereafter, in accordance with the notice, a public hearing was conducted by Debra L. Young, Staff Attorney, on December 1, 2006 at Salem, Oregon.  The record of the public hearing was closed at 5:00 p.m. on December 1, 2006.

            2.   One individual offered testimony at the scheduled hearing.  Written comments were submitted by staff members of the Workers' Compensation Board.  Copies of the transcript of the public hearing and of all written comments received are available for public inspection and copying at the offices of the Board, 2601 25th St. SE, Suite 150, Salem, Oregon 97302-1280, during normal working hours from 8:00 a.m. to 5:00 p.m., Monday through Friday.

            3.   Order of Adoption for OAR 438-005-0046 (Exhibit A) and OAR 438-022-0005 (Exhibit B).  The Board has thoroughly reviewed and considered all comments pertaining to its proposed amendments to OAR 438-005-0046 and OAR 438-022-0005.  After completing its deliberations, the Board concludes that the proposed amendments to OAR 438-005-0046 (which are contained in Exhibit A, attached and incorporated by this reference) and OAR 438-022-0005 (which are contained in Exhibit B, attached and incorporated by this reference), are reasonable and proper because they are designed to implement necessary changes to the Board's filing and service rules and rulemaking procedures rules.  The Board bases its conclusions on the following reasoning.

OAR 438-005-0046.  OAR 438-005-0046(1) addresses "filing" of documents, including filing of requests for hearing and Board review.  OAR 438-005-0046(1)(c).  OAR 438-005-0046(2) addresses the "service" of documents, including any thing delivered for filing under these rules.  The proposed rule amendments provide for filing requests for hearing/Board review and for service of filed documents by electronic means.  These proposals are intended to provide convenience and potential cost savings to parties and practitioners appearing before this agency, as well as to the forum itself.

As addressed in the Statement of Need, a voluntary pilot program was designed to determine the feasibility of filing requests for hearing or Board review and service of filed documents by electronic mail (e-mail).  Following review of this pilot program (as well as comments solicited from practitioners regarding the program), the Board determined that the filing and service of requests for hearing and Board review by e-mail were feasible.  Moreover, the Board considered that such amendments would provide parties and practitioners with additional options when "filing" their requests for hearing and review, thereby further streamlining "filing" procedures for such documents and enhancing the efficiency and effectiveness for such actions. 

Consequently, the Board proposed to add a new version of subsection (1)(d) to permit filing of requests for hearing and Board review by means of e-mail by:  (1) sending an e-mail to specific Board e-mail addresses dedicated to such electronic filing; and (2) attaching an electronic copy of the filing request formatted in Microsoft Word 2000® (.doc, .txt, .rtf), Adobe Reader® (.pdf), or a format that can be viewed in Internet Explorer® (.tif, .jpg). [1] [2]   The Board also proposed to define the date of the electronic filing as the date the appropriate completed electronic form submitted in one of the listed formats is received by the Board.

In addition, the Board also proposed to amend subsections (2)(a) and (b), which address "service" of any thing filed under the Board's rules.  The Board proposed to amend subsection (2)(a) to include within the permitted methods for "service" e-mail transmissions regarding requests for hearing or Board review filed under OAR 438-005-0046(1)(d) and to provide that such e-mail service is complete upon successful transmission to the receiving party, provided that the copy is sent in a format readable by the recipient. [3]  In addition, the Board proposed to amend subsection (2)(b) to include "service by means of e-mail regarding requests for hearing or Board review under OAR 438-005-0046(1)(d)" to describe this additional means of service that may be identified in the "acknowledgment of service" or "proof of service" for the filed request for hearing or Board review.

At the rulemaking hearing, one person testified.  That person favored the amendment in its application of new technology.  Board staff also submitted written comments regarding rulemaking and internal procedures.  Consistent with the Members' discussion at its meeting preceding the rulemaking hearing, one of those comments suggested:  (1) defining "e-mail" as provided in the DCBS Policy & Procedure No. EMP-07 ("Use of System Resources"); i.e., "[e]lectronic messages transmitted person to person via GroupWise, Internet, or other software or electronic mail program;" and (2) establishing one electronic mailing address for requests for both hearing and review.  The comment reasoned that the "shared address" approach has the advantage of simplifying the e-mail system for parties and practitioners by providing one e-mail address for requests for hearing and review.  Board staff would monitor that "shared" or "centralized" electronic mail box and direct received requests to the appropriate section of the agency. 

After considering the comments, the Board determined that the suggestion regarding a "shared" electronic mailing address promoted further clarification and simplicity in the amended rules and their application.  Given these advantages, the Board decided to implement this suggestion because it was considered to be reasonable, proper, and in the public interest.  Concerning the other suggestion, the Board found it unnecessary to include a specific definition for the term "e-mail" within its administrative rules, although it decided to include the abbreviation of "(e-mail)" following the term "electronic mail" in OAR 438-005-0046(1)(d).

Thus, as amended, OAR 438-005-0046(1)(d) provides:

"(d) Filing of a request for hearing or Board review of either an Administrative Law Judge's order or a Director's order finding no bona fide medical services dispute may be accomplished by electronic mail (e-mail).  To electronically file a request for hearing or Board review, a party shall:
(A) Send an e-mail to:  request.wcb@state.or.us; and
(B) Attach an electronic copy of a completed Workers' Compensation Board "Request for Hearing Form," or a completed request for Board review.  These attachments must be in a format of Microsoft Word 2000® (.doc, .txt, .rtf), Adobe Reader® (.pdf), or formats that can be viewed in Internet Explorer® (.tif, .jpg).
(C) For purposes of this rule, the date of an electronic filing is determined by the date the Board receives the appropriate completed electronic form which must be in a format of Microsoft Word 2000® (.doc, .txt, .rtf), Adobe Reader® (.pdf), or formats that can be viewed in Internet Explorer® (.tif, .jpg).  An electronic filing under subsection (d) of this section received by the Board by 11:59 p.m. of a non-holiday, weekday is filed on that date." 

The addition of the new version of subsection (1)(d) requires the renumbering of existing subsections (1)(d) and (1)(e) as (1)(e) and (1)(f), respectively.  Reference to subsection (d) is also included in renumbered subsection (1)(e), which explains the requirements for filing documents other than those specified in subsections (c) and (d). Finally, subsection (2)(a) is amended to include within the permitted methods for "service" e-mail transmissions regarding requests for hearing or Board review filed under OAR 438-005-0046(1)(d) and to provide that such e-mail service is complete upon successful transmission to the receiving party, provided that the copy is sent in a format readable by the recipient. 

Subsection (2)(b) is also amended to include "service by means of e-mail regarding requests for hearing or Board review under OAR 438-005-0046(1)(d)."  This amendment describes the additional means of service that may be identified in the "acknowledgment of service" or "proof of service" for the filed request for hearing or Board review.

In conclusion, the Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that it is reasonable, necessary, and proper to amend the rule in the manner described above.  Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit A and incorporated herein by this reference.

OAR 438-022-0005 (Exhibit B).  This rule adopts by reference the Attorney General's Model Rules for Rulemaking (Model Rules) and identifies the effective date of the Model Rules adopted.  Effective January 1, 2006, the Department of Justice revised the Model

Rules to enact changes required under House Bill 3238 (2005).  Accordingly, the Board proposed to amend OAR 438-022-0005 to adopt by reference the amended Model Rules adopted by the Department of Justice effective January 1, 2006.

Having received no objection to the proposed amendment, the Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that it is reasonable, necessary, and proper to amend the in the manner proposed.  Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit B and incorporated herein by this reference.

            4.   Under the authority granted by ORS 656.726(5), the Board finds that:

a.   All applicable rulemaking procedures have been followed; and

b.   The rules being adopted are reasonable, necessary and proper.

            PURSUANT TO THE AMERICANS WITH DISABILITIES ACT GUIDELINES, ALTERNATIVE FORMAT COPIES OF THE RULES WILL BE MADE AVAILABLE TO QUALIFIED INDIVIDUALS UPON REQUEST TO THE BOARD.

            Consequently, in accordance with its Notice of Proposed Rulemaking, the Board adopts the attached rules, as set forth in Exhibits "A" and "B" incorporated herein by this reference, as permanent rules of the Workers' Compensation Board, to become effective March 1, 2007.  Amendments to OAR 438-005-0046 shall apply to all requests for hearing and Board review filed, and to all services of such requests made on or after March 1, 2007.  Amendments to OAR 438-022-0005 shall apply to all rulemaking actions initiated on or after March 1, 2007.

            The Board further orders that notice of this Order of Adoption, along with a certified copy of the amended rules, be filed with the Secretary of State and that a copy of the aforementioned notice and amended rules be filed with the Legislative Counsel within 10 days after filing with the Secretary of State as required by ORS 183.715.

    


            [1] Any attempt to submit an e-mail attachment in a format other than one listed above would not constitute "filing" under the proposed rule amendment.  Thus, if a filing party does not have the capability of providing the e-mail attachments in one of the required formats, that party must file its request under the existing rules by physical delivery, mail, or FAX.  OAR 438-005-0046(1).

            [2] As explained in the Statement of Need, because the Board's referenced e-mail addresses provide a direct link to the Board, the proposed rule does not require a "follow-up" "hard copy" of a request for hearing or review electronically filed with the Board.

            [3] As explained in the Statement of Need, under the proposed amendment, service of a request for hearing or Board review, regardless of whether filed electronically via the Board's e-mail filing system, may be made by any of the methods provided in OAR 438-005-0046(2)(a):  by personal service, facsimile transmission, mail, or e-mail.  A "hard copy" version of service by e-mail is not required.  However, because the amendments do not prohibit the service of a "hard copy" version of  service made by e-mail, a party or practitioner can also choose to mail or otherwise deliver a "hard copy" of the service it has previously "filed" with the Board by e-mail.