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 438-007-0020
(Subpoenas; Witness Fees).

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WCB ADMIN. ORDER 1-2005


ORDER OF ADOPTION

            1.  On May 3, 2005, 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 438-007-0020 (Subpoenas; Witness Fees).  Copies of the notice were distributed to the Oregonian, the Associated Press, and the Capitol Press in the Capitol Press Room on May 4, 2005.  The notice was published in the Secretary of State’s June 2005 Administrative Rule Bulletin.

            On May 9, 2005, notice of this hearing was posted on the Board’s website at:  http://www.wcb.oregon.gov/wcbrule/rules.htm.  On May 12, 2005, 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 May 2005 issue of the Board’s News and Case Notes, which was posted on the Board’s website on June 8, 2005.  On June 13, 2005, via e-mail, members of the Workers’ Compensation Section were notified of publication of the May 2005 issue of the Board’s News and Case, including a link to that document.

            Thereafter, in accordance with the notice, a public hearing was conducted by Roger C. Pearson, Managing Attorney, on June 24, 2005 at Salem, Oregon.  The record of the public hearing was closed at 5:00 p.m. on June 24, 2005.

            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.  Procedural Background.  Before proceeding with a summary of the amended rule,
the following information is provided to give the historical/contextual background of the amended rule.

            Senate Bill 280 (SB 280) (sponsored by the Oregon State Bar Health Law Section) proposes to amend ORS 656.726(2)(c) to require that “subpoenas issued pursuant to this paragraph that require the production of individually identifiable health information must be issued in conformity with the requirements of ORCP 55H.”  ORCP 55H requires, among other things, notice to the person whose medical records are being subpoenaed and a right to object to the release of medical records.

            As explained in the Board’s May 3, 3005 Statement of Need for the rules presented in Exhibit A, as a result of this proposed legislation, an informal committee was formed, consisting of a representative of the main proponents of that legislation (Oregon Hospital Association and the Oregon State Bar Health Law Section), workers’ compensation practitioners, the Workers’ Compensation Board, and its Hearings Division.(1)  To address concerns arising from SB 280, the committee suggested amendments to OAR 438-007-0020 requiring that individually identifiable health information may be obtained through a subpoena, provided that the person whose medical records are being sought receives notice of the subpoena and the opportunity to object to the subpoena.

            On April 26, 2005, the Board reviewed the proposal at a public meeting.  Following that review, the Board proposed to amend OAR 438-007-0020 for the reasons set forth in its “Statement of Need.”  On May 3, 2005, the Board filed a Notice of Proposed Rulemaking Hearing with the Secretary of State, which indicated the time and place for the June 24, 2005 proposed rulemaking hearing.

            4.  Order of Adoption for OAR 438-007-0020 (Exhibit A).  The Board has thoroughly reviewed and considered all comments pertaining to its proposed amendments to OAR 438-007-0020.  After completing its deliberations, the Board concludes that the proposed amendments to OAR 438-007-0020 (which are contained in Exhibit A, attached and incorporated by this reference), are reasonable and proper because they are designed to implement necessary changes to the Board’s subpoena rule arising from the aforementioned process.  The Board bases its conclusions on the following reasoning.

OAR 438-007-0020.  This rule provides for subpoenas and witness fees in regards to a hearing before the Hearings Division of the Workers’ Compensation Board. 

Section (1).  The proposed amendment to section (1) provides that whenever a party requests a hearing, a subpoena may be issued to compel attendance or testimony at a hearing or the production of documentary or physical evidence “at or before a hearing.”

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 A and incorporated herein by this reference.

Section (4).  The proposed amendment to section (4) concerns the timing of filing a subpoena and changes the reference point from “a hearing” to “an appearance.”  It also adds “a party” to the persons who must be given a reasonable time to comply with the subpoena and adds the possibility of filing an objection to the subpoena.

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 A and incorporated herein by this reference.

Section (6).  It was proposed that section (6) be added to provide the process for obtaining “individually identifiable health information,” as defined in ORCP 55(H)(1)(a), through a subpoena.

Subsection (6)(a) provides that the party issuing the subpoena for individually identifiable health information must serve, at the same time, a copy of the subpoena to the party or the party’s attorney whose medical records are being subpoenaed. 

Subsection (6)(b) provides that the subpoena shall include notice to the person, or the person’s attorney, if represented, whose individually identifiable health information is being subpoenaed of the extent of the information being sought, as well as the procedure for filing with the Board a timely objection to the disclosure of such information.  This procedure includes a inclusion of a notice on the subpoena informing the party whose individually identifiable health information is being subpoenaed of the required procedures to oppose the subpoena, including filing a written objection with the Board.  Board staff advises that the Board’s zip code has changed to “97302-1280,” which requires correction of the proposed notice to reflect that change.

Subsection (6)(c) sets forth the certification that must be included with the subpoena.

Subsection (6)(d) provides that “file” has the same meaning as OAR 438-005-0046.

Subsection (6)(e) provides that, if there is no timely objection or a waiver of objection, the recipient of the subpoena shall comply with the subpoena.

Subsection (6)(f) provides the procedures the recipient of the subpoena must follow if it receives a timely objection to the subpoena, including mailing the information sought to the Board.  As noted above, the Board’s zip code has changed to “97302-1280,” which requires correction of the Board’s mailing address in this subsection.

Subsection (6)(g) provides that a party who receives information under Section (6) must disclose that information under OAR 438-007-0015.

Subsection (6)(h) provides that an expedited pre-hearing conference will be conducted under ORS 656.283, if the person whose individually identifiable health information
is being subpoenaed timely objects. 

One person testified in opposition to section (6) in general, stating that this amended rule was “ill-conceived” in that it would “throw a monkey wrench” into the hearing process.  Addressing subsection (6)(h) (the expedited pre-hearing conference to resolve objections to subpoenas), he stated that the workers’ compensation system provides an alternative to the civil system and allows for more freely available information.  In contrast to this principal, he foresaw that the pre-hearing conference system would result in delay and multiple postponements, which would be burdensome to all parties, including the Hearings Division and the Board.  Unconvinced that SB 290 would be approved, this commenter suggested that testimony should be presented at a legislative hearing regarding that bill at which time the differences between the civil and workers’ compensation dispute resolution systems could be discussed.

Regarding the organization of the proposed amendments, Board staff noted that the proposed language in subsection (6)(h) concerns the appeal process if a timely objection to the subpoena is received, a process that is also addressed in subsection (6)(f).  As such, Board staff suggested that logically the text of subsection (6)(h) should appear in subsection (6)(g).  In addition, Board staff noted that, because the proposed language in subsection (6)(g) is a general provision that refers to all information received under section (6), it should be in the last subsection.  Therefore, for organizational purposes, Board staff recommended that the text of subsection (6)(g) be exchanged with that of subsection (6)(h). 

In addition, because the amendments to section (6) use the phrase “individually identifiable health information” to describe the type of information that is subject to the procedures described in section (6), the sole reference to “medical records” in subsection (6)(a) is inconsistent with this terminology.  Consequently, for consistency purposes, it was recommended by Board staff that the term “medical records” be replaced with the term “individually identifiable health information.”

After further considering this matter, the Board finds that the proposed language in section (6) is reasonable.  As explained in the Board’s Statement of Need, an informal committee was formed, in part, of representatives from all sides of the workers’ compensation system to address SB 280, which proposed to amend ORS 656.726(2)(c) to require that “subpoenas issued pursuant to this paragraph that require the production of individually identifiable health information must be issued in conformity with the requirements of ORCP 55H.”  This committee recommended that the concerns raised by SB 280 could be more efficiently and effectively addressed through a proposed rule, rather than by means of a statutory amendment incorporating rules of civil procedure into the workers’ compensation system.

After further consideration of this matter, the Board agrees with the aforementioned rationale.  The proposed language in section (6) grants a party the opportunity to object to a subpoena for individually identifiable health information, provided that the objection satisfies the requirements of the rule.  In keeping with the purposes of the Workers’ Compensation Law under ORS 656.012(2), those procedures are less formal and more expeditious than those set forth in ORCP 55H.  Furthermore, the expedited pre-hearing conference is held only in response to a timely filed objection.

Although the Board finds the proposed amendments in section (6) reasonable, the Board has decided to change the proposed amended rule by correcting the zip code, replacing the term “medical records” in subsection (6)(a) with the term “individually identifiable health information,” and by exchanging the text contained in subsections (6)(g) and (6)(h).

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

            5.  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 Exhibit “A” incorporated herein by this reference, as permanent rules of the Workers’ Compensation Board, to become effective September 1, 2005 and to apply to all subpoenas issued on or after September 1, 2005.

            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. Members of this committee included:  Gwen Dayton, counsel for the Oregon Hospital Association and chair of the Oregon State Bar Health Law Section, Andrea Easton, Oregon Medical Association, Steve Cotton, attorney with the State Accident Insurance Fund (SAIF), Judy Johnson, attorney with Liberty Northwest Insurance Corporation, George Goodman, attorney with Oregon Self-Insurers Association (OSIA), Randy Elmer, attorney with the claimant’s Bar, Chris Moore, attorney with the claimant’s Bar, Maureen Bock, Workers’ Compensation Board Chair, Monte Marshall, Administrative Law Judge.

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