BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON

In the Matter of the Adoption of
Rules and Permanent Amendments to
the Rules of Practice and Procedure
for Contested Cases Under the Workers’
Compensation Law, Relating to OAR 438
Divisions 005, 009, 012, 015 and 022
(General Definitions, Compromise and
Settlement, Board’s Own Motion, Attorney
Fees, and Rulemaking Procedures).
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WCB ADMIN. ORDER 1-2004




ORDER OF ADOPTION

          1. On March 15, 2004, the Workers’ Compensation Board filed a Notice of Proposed Rulemaking hearing with the Secretary of State, giving notice of its intent to adopt permanent rules of practice and procedure relating to OAR 438, Divisions 005, 009, 012, 015 and 022 (General Definitions, Compromise and Settlement, Board’s Own Motion, Attorney Fees, and Rulemaking Procedures). Copies of the notice were distributed to the Oregonian, the Associated Press, and to the Capitol Press Room on March 18, 2004. The notice was published in the Secretary of State’s April 2004 Administrative Rule Bulletin.

          On March 24, 2004, notice of this hearing was also posted on the Board’s website at: http://www.wcb.oregon.gov/wcbrule/rules.htm. On April 5, 2004, all interested parties whose names appear on the Board’s mailing list were notified of this rulemaking action. Notice of the hearing was published in the April 2004 issue of the Board’s News and Case Notes, which was posted on the Board’s website on May 7, 2004.

          Thereafter, in accordance with the notice, a public hearing was conducted by Debra L. Young, Staff Attorney, on May 28, 2004 at Salem, Oregon. The record of the public hearing was closed at 5:00 p.m. on May 28, 2004.

          2. One individual offered testimony at the scheduled hearing. In addition, four written comments were received from Board staff, an insurer, and the Oregon State Bar Board of Governors. 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 97302-1282, during normal working hours from 8:00 a.m. to 5:00 p.m., Monday through Friday.

          3. Order of Adoption for Rules (Exhibits A through H). The Board has thoroughly reviewed and considered all comments pertaining to its proposed permanent rules. A written summary of the comments is also included in the record.

          For the reasons explained in the Board’s March 15, 2004 Statement of Need (incorporated by this reference), as well as those explained below, the Board has reached the following conclusions regarding the proposed amendments and rules, which are contained in Exhibits A through H (attached and incorporated by this reference).

OAR 438-005-0040

As explained in the section of the Statement of Need that addressed OAR 438-005-0040, the Workers’ Compensation Division (WCD) has reorganized its internal structure and requested that the Board amend OAR 438 to reference "Workers’ Compensation Division," without reference to "Benefits Section" and/or "Benefits and Policy Services Section."

Under such circumstances, the Board proposes to delete references in its administrative rules to "Benefits Section" and "Benefits and Policy Services Section" and replace them with "Workers’ Compensation Division." To make these proposed changes, the definition of "Benefits Section" will be deleted from OAR 438-005-0040(4) and a definition of "Workers’ Compensation Division" will be added. To maintain alphabetical order, these changes will require renumbering subsections (4) through (12) of this rule.

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

OAR 438-005-0050

As explained in the section addressing OAR 438-005-0040, the Board proposes to delete references to WCD’s "Benefits Section" and "Benefits and Policy Services Section." For the reasons addressed above, as explained in the Statement of Need, the Board proposes that the term "Workers’ Compensation Division" be substituted for the term "Benefits Section" in OAR 438-005-0050(2).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit B and incorporated by this reference.

OAR 438-005-0055

As explained in the section addressing OAR 438-005-0040, the Board proposes to delete references to WCD’s "Benefits Section" and "Benefits and Policy Services Section." For the reasons addressed above, as explained in the Statement of Need, the Board proposes that the term "Workers’ Compensation Division" be substituted for the term "Benefits Section" in both OAR 438-005-0055(1) and (2).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit C and incorporated by this reference.

OAR 438-009-0010

As explained below in the discussion of proposed changes to OAR 438-009-0015(5) and in the Statement of Need, the Board proposes modifying its procedures regarding the submission and approval of proposed Disputed Claim Settlements (DCSs) and stipulations. These proposed changes would eliminate signatures of an Administrative Law Judge (ALJ) and/or Board Members from such agreements. Instead, an ALJ and/or Board Members would document their approval of the proposed agreement by means of an order that would be mailed to the parties and their attorneys. ORS 656.289(4)(a) does not require that an ALJ or the Board "sign" the agreement; rather, the statute requires "approval" of the agreement, which may be indicated by an order. To be consistent with these proposed changes, the Board also proposes amending OAR 438-009-0010(6)(f) to change the term "signed" to "approved."

For the reasons expressed in its Statement of Need, those explained in the discussion of OAR 438-009-0015(5), and those discussed herein, the Board finds that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit D and incorporated by this reference.

OAR 438-009-0015

The Board proposes modifying its procedures regarding the submission and approval of proposed DCSs and stipulations. Under the current system, parties are required to file six copies and an original of the proposed agreement for ALJ and/or Board approval. See OAR 438-009-0015(5). Such agreements include signature lines documenting ALJ and/or Board Member approval. Signed copies of the approved agreements are then mailed to the parties and their attorneys. The original agreement is retained in the Board’s file.

The Board proposes amending OAR 438-009-0015(5) to clarify that it pertains to all proposed written agreements filed for ALJ and/or Board Member approval with the exception of Claim Disposition Agreements (CDAs);(1) i.e., it includes DCSs and written stipulations. The Board further proposes to amend the rule to require the filing of the original proposed agreement and one copy. This agreement, which would continue to
be signed by the parties and their attorneys, would not have a signature line for an ALJ and/or the Board Members. Instead, an ALJ and/or Board Members would document their approval of the proposed agreement by means of an order that would be mailed to the parties and their attorneys.(2)

This proposal is consistent with ORS 656.289(4)(a), which provides that "[n]otwithstanding ORS 656.236, in any case where there is a bona fide dispute over compensability of a claim, the parties may, with the approval of an Administrative Law Judge, the board or the court, by agreement make such disposition of the claim as is considered reasonable." (Emphasis supplied). Thus, ORS 656.289(4)(a) requires "approval" of the agreement. Such approval can be documented by means of an order, which would reference the agreement and ALJ/Board approval, and would dismiss the pending request for hearing/Board review. For those agreements where no request for hearing/review is pending, the ALJ’s approval of the proposed settlement/stipulation would also be documented by an order announcing the ALJ’s decision.

The adoption of this amended rule and the implementation of this procedure will result in significant cost savings to parties, practitioners, and the Board itself. Rather than filing 6 copies of the proposed agreement, the parties would be required to file only one copy and the original agreement. Instead of mailing a minimum of 5 multi-page copies of the ALJ/Board approved agreement to the parties/representatives, the ALJ/Board would prepare a one-page order that would be mailed to the parties/representatives. On their receipt of the order, the parties/representatives would place the order with their copy of the agreement.

To implement these changes, the Board proposes: (1) changing the requirement of "six legible copies" in the first sentence of OAR 438-009-0015(5) to "one legible copy;" (2) including the term "disputed claim settlement" to identify this type of agreement as being included in the rule; and (3) deleting the last sentence of that rule, which provides that "[t]he original document shall be retained in the Board’s file and necessary copies shall be conformed and distributed to the parties, their attorneys and the Director."

Two comments were received regarding these proposed changes, in addition to those received in response to the Board’s survey. One comment approved the proposed changes and offered a suggestion regarding the processing of a "form order" documenting ALJ approval of a DCS or stipulation. Because this comment pertains to the processing of final orders, rather than to the proposed rule, the procedural suggestion has been referred to the Presiding ALJ for consideration.

Another comment objected to deletion of the language in OAR 438-009-0015(5) that provides: "The original document shall be retained in the Board’s file[.]" The commentator apparently assumed that deletion of this language meant that the original document would be discarded. Such an assumption is inaccurate.

The Workers’ Compensation Division serves as the repository for permanent Board records, including final orders, interim orders, and settlement agreements (which include DCSs). Under the Oregon State Archives Records Retention Schedule for the Board, such final orders are to be retained in the Workers’ Compensation Board’s (WCB’s) records for one year after a case is closed. Thereafter, WCB sends the original final orders to WCD for retention/disposition. In light of such circumstances, contrary to the concerns expressed by the comment, the original document (i.e., the DCS or stipulation) will be retained (initially in WCB records and eventually in WCD records).

After considering these comments, the Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit E and incorporated by this reference.

OAR 438-012-0017

The Board proposes adding a rule that addresses timely compliance with Board requests for written argument regarding Own Motion claims, including requests for additional written information. In the Own Motion context, the Board often requests clarification of the parties’ positions, including additional documentary evidence. The proposed rule implements procedures codifying the Board’s established practice for the submission of arguments and documents, as well as the extension of filing responses to such requests.

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0018

The Board proposes changing subsection (2) to state that Division 012 rules are "effective September 1, 2004, to be applied in the manner prescribed by the Board’s Order of Adoption." This change identifies one source for the effective date of Division 012 rules, which will avoid potential confusion. See Keith A. Broeckel, 55 Van Natta 3572, 3575 (2003).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0020

To clarify any possible ambiguity, the Board proposes adding subsection (6) to specifically address notice of "post-aggravation rights" new or omitted medical condition claims related to compensable injuries occurring before January 1, 1966. This addition will require renumbering the current subsection (6) as subsection (7) and changing the reference to subsection (7) in subsection (5).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0030

As explained in the Statement of Need, the Board proposes to codify its existing practice of requesting the parties to assist it in conducting its review by presenting their written materials in chronological order (marked as exhibits) and accompanying these materials with an exhibit list identifying those exhibits. This method has been of significant assistance to the Board in performing its review and resolving these issues. The Board proposes to add the following phrase to subsections (1)(b) and (2)(b) to describe the method of providing the evidence required by the recommendation form: "which should be marked as exhibits, arranged in chronological order, and accompanied by an exhibit list."

As explained in the section addressing OAR 438-005-0040, the Board proposes to delete references to WCD’s "Benefits Section" and "Benefits and Policy Services Section." For the reasons addressed above, as explained in the Statement of Need, the Board proposes that the term "Benefits and Policy Services Section" be deleted from OAR 438-012-0030(4).

As explained in the Statement of Need, the Board proposes adding subsection (3) to clarify that processing "post-aggravation rights" new or omitted medical condition claims requires the Own Motion insurer to issue two documents: (1) the appropriate notice under OAR 438-012-0024 (Modified Notice of Acceptance; Notice of Denial of Compensability and/or Responsibility; Notice of Clarification; or Notice of Incomplete Claim); and (2) the appropriate document under OAR 438-012-0030 – either a 3501 Form voluntarily reopening the claim or a written recommendation to the Board that recommends for or against reopening the "post-aggravation rights" new or omitted medical condition claim. Addition of this new subsection (3) requires renumbering the current subsections (3) and (4) as subsections (4) and (5), respectively, and changing
the current reference to subsection (3) in subsections (1) and (2) to subsection (4).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0032

As explained in the section addressing OAR 438-005-0040, the Board proposes to delete references to WCD’s "Benefits Section" and "Benefits and Policy Services Section." For the reasons addressed above, the Board proposes that the term "Workers’ Compensation Division" be substituted for the term "Benefits Section" in OAR 438-012-0032(1) and (2).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0035

As explained in the Statement of Need, the Board proposes adding the attainment of medically stationary status as a fourth event that qualifies the claim for unilateral termination of payment of temporary disability compensation pursuant to ORS 656.278(1)(a), (1)(b) (2001) and Catherine A. Skinner, 55 Van Natta 3766 (2003). The Board proposes adding medically stationary status as subsection (5)(a) and renumbering the remaining subsections (5)(b) through (5)(d).

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0055

As explained in the section addressing OAR 438-005-0040, the Board proposes to delete references to WCD’s "Benefits Section" and "Benefits and Policy Services Section." For the reasons addressed above, the Board proposes that the term "Workers’ Compensation Division" be substituted for the term "Benefits Section" in OAR 438-012-0055.

The Board finds for the reasons expressed in its Statement of Need, and those discussed herein, that the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0060

As explained in the Statement of Need, the Board proposes to codify its existing practice of requesting the parties to assist it in conducting its review by presenting their written materials in chronological order (marked as exhibits) and accompanying these materials with an exhibit list identifying those exhibits. This method has been of significant assistance to the Board in performing its review and resolving these issues. The Board proposes to add the following sentence to subsection (3) to describe the method of providing the evidence pertaining to the claimant’s condition at the time of claim closure: "Such evidence should be marked as exhibits, arranged in chronological order, and accompanied by an exhibit list."

In addition, as the Board conducts its review of Notices of Claim Closures regarding "post-aggravation rights" new or omitted medical conditions, it is occasionally presented with significantly complex issues regarding the evaluation of a claimant's permanent disability for those conditions. To further assist the parties in focusing their arguments on the relevant components of the permanent disability evaluation, as well as to assist the Board in applying the Director's permanent disability standards, the Board proposes to amend this rule to expressly provide the Board with the discretion to refer specifically identified claims to WCD for a recommendation. Specifically, the Board proposes adding a new subsection (7) as follows: "The Board may refer a disagreement regarding the rating of the claimant’s permanent disability for a "post-aggravation rights" new or omitted medical condition to the Workers’ Compensation Division for an evaluation and recommendation on the record presented to the Board."

In this way, the Board will have the option of referring certain designated claims involving complicated questions regarding the evaluation of a claimant's permanent disability to WCD, the agency with extensive experience concerning the Director's permanent disability standards. As with its "ALJ referral" rule (subsection (6)), the Board plans to provide WCD with specific instructions and, on Board receipt of WCD's recommendation, establish a briefing schedule permitting the parties to present their written positions in response to the recommendation. Thereafter, the Board would make its final determination. Finally, the addition of this new subsection (7) requires renumbering the current subsection (7) to subsection (8).

A comment was received inquiring whether the Board’s intent was to limit the record once such a case is referred to the "Hearings Division." However, the proposed amendment to subsection (7) does not provide for referral to the "Hearings Division." Instead, as proposed, subsection (7) provides the Board with the discretion to refer a dispute regarding permanent disability for a "post-aggravation rights" new or omitted medical condition to WCD for "an evaluation and recommendation based on the record presented to the Board." Subsection (6) provides the Board with discretion to refer a matter involving Board review of a carrier’s Own Motion closure to the Hearings Division for an evidentiary hearing and recommended findings of fact and conclusions. No changes to subsection (6) have been proposed.

After considering this comment, the Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0090

Subsection (1) of this rule provides that requests for hearing regarding a denial under OAR 438-012-0070 and/or 438-012-0075 or a Notice of Clarification under OAR 438-012-0080 of a "post-aggravation rights" new/omitted medical condition claim shall be processed by the Hearings Division pursuant to the procedures for ordinary cases prescribed in divisions 006 and 007. Division 006 contains the procedures prior to hearing in ordinary cases and Division 007 includes the rules for evidence at hearing. As written, this rule does not expressly authorize an ALJ to comply with the rules regarding compromises and settlements (Division 009) regarding such claims, although such action is inherent in the hearing process. To unequivocally clarify this authority and avoid any potential confusion, the Board proposes adding reference to Division 009 rules (Compromise and Settlement) to subsection (1).

In addition, in order to provide the least restrictive requirements for parties to request review of an ALJ’s "Proposed and Final Own Motion Order," the Board proposes to require only that a party "request review by the Workers’ Compensation Board," without also requiring that the party expressly direct that request to the "Own Motion Section." The Own Motion Board will perform review of these orders without the necessity of
the request being specifically directed to the "Own Motion Section." Deletion of this directive to reference the "Own Motion Section" from the appeal rights in subsection (2) will simplify the process of requesting review by the parties.

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0095

OAR 438-012-0095 concerns Board review of an ALJ’s Proposed and Final Own Motion Order. As written, this rule does not expressly provide for the issuance of a Board order following such review, although such action is inherent in the Board review process. To clarify the matter, the Board proposes adding subsection (4) to this rule to provide that, within 30 days after completing its review of the record, the Board shall issue its order deciding the issues arising from the request for Board review.

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0100

This rule concerns Board review of a request for review of a Notice of Incomplete Claim. As written, subsection (5) provides: "The Board shall issue its order within a reasonable time after receipt of all evidence and argument from the parties and any recommendation from the Hearings Division." The Board proposes amending subsection (5) in a manner consistent with the above language added in OAR 438-012-0095(4).

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-012-0110

The Board proposes adding a provision for penalties and attorney fees for a carrier’s unreasonable untimely compliance, or unreasonable failure to comply with the Board’s Own Motion rules. Although most carriers timely comply with the Board’s Own Motion rules, some do not or unreasonably delay their compliance. Without any Own Motion rule providing for the consequences of a carrier’s unreasonable untimely compliance,
or unreasonable failure to comply with its rules, there are no available remedies for the Board to enforce its Own Motion rules. Under the current system, the Board’s staff may issue numerous letters, which results in unnecessary time and expense, as well as delays in Board decisions, some of which would result in awards of compensation.

To establish a means for enforcement of its Own Motion rules, the Board proposes adding a rule that would provide for penalties and attorney fees pursuant to ORS 656.262(11) and OAR 438-015-0110 when a carrier unreasonably or unjustifiably fails to comply or unreasonably or unjustifiably untimely complies with the Board’s Own Motion rules. To the extent possible, in developing language for this proposed rule, the Board followed the language of OAR 438-007-0015(8), the rule providing for penalties and attorney fees for violation of the Board’s discovery rule. As with OAR 438-007-0015(8), in addition to possible monetary penalties and attorney fees, the proposed rule provides for non-monetary consequences for such violations by the carrier; i.e., exclusion of evidence, and/or referral for a fact-finding hearing.

In addition, the Board proposes to list the possible consequences for a claimant’s unreasonable or unjustified untimely compliance or failure to comply with the Board’s Own Motion rules. As with OAR 438-007-0015(8), the proposed rule provides for non-monetary consequences for such violations by the claimant; i.e., exclusion of evidence, referral for a fact-finding hearing, and/or dismissal of the request for benefits.

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit F and incorporated by this reference.

OAR 438-015-0011

For the reasons stated in its Statement of Need, the Board proposes the adoption of a rule regarding the filing of executed retainer agreements that is similar to existing ORS 1.150.(3) In doing so, the Board reiterates that an "English language" requirement for an executed retainer agreement filed with the Board and its Hearings Division is a reasonable practice and one that is consistent with civil court proceedings. Furthermore, considering the increasing number of "non-English" speaking/reading parties to workers’ compensation proceedings, the Board finds it reasonable to establish procedures for the submission of translated versions of retainer agreements filed with this agency.

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit G and incorporated by this reference.

OAR 438-022-0005

The Board proposes amending OAR 438-022-0005 to reflect the repeal of ORS 183.545 and ORS 183.550, which required review of all rules at least every three years. See Or Laws 2003, ch 749, § 17. Currently, OAR 438-022-0005 states, in part, that it "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." OAR 137-001-0085 applied ORS 183.545 and ORS 183.550, which were repealed in 2003.(4)

The Board also proposes to: (1) identify the adopted Attorney General’s rules as "Model Rules for Rulemaking" to comply with their identification in OAR 137-001; and (2) delete the phrase "Notice of Rulemaking" from the title of OAR 438-022-0005, because that topic is covered in OAR 438-022-0010.

The Board proposes to amend OAR 438-022-0005 to incorporate these changes by adopting by reference "OAR 137-001-0005 through 137-001-0080 (Attorney General’s Model Rules For Rulemaking), as adopted by the Department of Justice effective December 9, 2003."

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit H and incorporated by this reference.

OAR 438-022-0010

The Board proposes to amend OAR 438-022-0010(1) to add subsection (c) to include the requirement to mail a copy of any notice of rulemaking to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the intended action. This amendment will require renumbering current subsection (c) as (d). In addition, the Board proposes to correct a clerical error in OAR 438-022-0010(1) that references "ORS 183.355(5);" this reference should be "ORS 183.335(5)." Finally, the Board proposes to amend the reference in OAR 438-022-0010(1)(b) and (2)(b) to "ORS 183.335(7)" to reflect the renumbering of that statute to "ORS 183.335(8)."

The Board finds that, for the reasons expressed in its Statement of Need and those discussed herein, the proposed rule is reasonable, necessary, and proper. Accordingly, the Board adopts this proposed rule as a permanent rule, contained in Exhibit H and incorporated 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" through "H," incorporated by this reference, as permanent rules of the Workers’ Compensation Board, to become effective September 1, 2004 and to apply to the following cases in the following manner:

          (1) Amendments to OAR 438-005-0040, OAR 438-005-0050, OAR 438-005-0055, OAR 438-012-0017, OAR 438-012-0018, OAR 438-012-0030, OAR 438-012-0032, OAR 438-012-0035, OAR 438-012-0060, OAR 438-012-0090, OAR 438-012-0095, OAR 438-012-0100, and OAR 438-012-0110 shall apply to all claims existing on or after September 1, 2004.

          (2) Amendments to OAR 438-022-0005 and OAR 438-022-0010 shall apply to all rulemaking actions initiated on or after September 1, 2004.

          (3) Amendments to OAR 438-012-0055 shall apply to all Own Motion claims closed on or after September 1, 2004.

          (4) Amendments to OAR 438-009-0010 and OAR 438-009-0015 shall apply to all proposed Disputed Claim Settlements and stipulations filed with the Hearings Division and/or the Board on or after September 1, 2004.

          (5) Amendments to OAR 438-012-0020, OAR 438-015-0011, and any other OAR 438 rule not specifically identified in this Order of Adoption shall apply to all claims filed or initiated on or after September 1, 2004.

          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. The processing requirements for CDAs are provided in OAR 438-009-0020 through OAR 438-009-0035.

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          2. The Board sought input regarding this proposed system from parties and practitioners in the workers' compensation community by means of the July and August 2003 Workers' Compensation Section Newsletters and the July/August 2003 Board News and Case Notes. The reasoning set forth in the Statement of Need and this section addresses the comments/concerns expressed in response to that survey.

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          3. The Board of Governors of the Oregon State Bar approved this proposed rule regarding attorney retainer agreements. ORS 656.388(3).

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          4. In response to this statutory change, the Department of Justice amended its Model Rules for Rulemaking by repealing OAR 137-001-0085. DOJ Admin. Order 13-2003 (eff. 12/9/03). In addition, DOJ Admin. Order 13-2003 amended OAR 137-001-0070 to apply changes to ORS 183.390 that added to the information that must be contained in a petition to amend or repeal an agency rule and required the agency to seek public input in less costly ways to achieve its goals. See Or Laws 2003, ch 749, § 6.

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