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 438-006-0095
(Change of Administrative Law Judge).
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WCB ADMIN. ORDER 2-2005


ORDER OF ADOPTION

            1. On July 6, 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 438-006-0095 (Change of Administrative Law Judge).  Copies of the notice were distributed to the Oregonian, the Associated Press, and the Capitol Press in the Capitol Press Room on July 7, 2005.  The notice was published in the Secretary of State’s August 2005 Administrative Rule Bulletin.

            On July 15, 2005, notice of this hearing was posted on the Board’s website at:  http://www.wcb.oregon.gov/wcbrule/rules.htm.  On July 13, 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 June 2005, July 2005, and August 2005 issues of the Board’s News and Case Notes, which were posted on the Board’s website on July 15, 2005, August 8, 2005, and September 13, 2005, respectively.

            Thereafter, in accordance with the notice, a public hearing was conducted by Roger C. Pearson, Managing Attorney, on September 30, 2005, at Salem, Oregon.  The record of the public hearing was closed at 5:00 p.m. on September 30, 2005.

            2. Seven individuals offered testimony at the scheduled hearing.  Written comments were submitted by eighteen individuals.  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 and contextual background of the amended rule.

            In September 2004, the Board received a petition to amend OAR 438-006-0095 (Change of Administrative Law Judge) to include a provision to provide that, when an Administrative Law Judge (ALJ) disqualifies himself or herself, there shall be no inquiry into the basis of the disqualification and the ALJ shall not be compelled to reveal the basis. 

            Pursuant to ORS 183.390(2), and after providing public notice, the Board convened a November 19, 2004 hearing to consider public comment (written and oral) regarding the petition.  Following this hearing, the Board Members met on November 30, 2004, to consider the petition, in conjunction with the written and oral comments.  At that meeting, the Board decided to deny the petition, but voted to create an advisory committee to study this matter and make recommendations.

            As a result, an advisory committee was created and met on February 25, 2005, and April 1, 2005.(1) As explained in the Board’s July 6, 2005 Statement of Need for the rules presented in Exhibit A, the advisory committee did not reach a consensus on a single recommendation.  The advisory committee presented a report that included several possible options for the Board Members to consider.  Those options were listed in the Statement of Need.  At its June 28, 2005 meeting, a majority of the Members(2) decided rulemaking procedures were necessary and proposed to adopt, with some revisions, one of the options proposed by the committee.  As revised, a majority of the Board proposed to adopt the following language as an amendment to OAR 438-006-0095(2)(3):

“When an Administrative Law Judge disqualifies himself or herself from a proceeding under this rule, the Administrative Law Judge is not required to disclose the reason or reasons for the disqualification except as required by law and reasonable management inquiries for docket or case management purposes.”

            On July 6, 2005, the Board filed a Notice of Proposed Rulemaking Hearing with the Secretary of State, which indicated the time and place for the September 30, 2005 proposed rulemaking hearing.

            At the September 30, 2005 hearing, the written comments and testimony received in response to the proposed rule expressed concerns that the “reasonable management inquiries for docket or case management purposes” phrase could jeopardize perceptions of, or actual, independence, objectivity, and fairness regarding the dispute litigation process and the ALJs’ pivotal role in that process.  In addition, several comments observed that potential delays from future ALJ recusals for ongoing conflicts could be addressed through updating the existing “ALJ conflict tables” with the Docketing Section.  The point was also made that other management methods for monitoring an ALJ’s performance were readily available, such as gauging an ALJ’s productivity of orders and timeliness of decisions by means of data compilation systems.

            On October 26, 2005, the Board Members reviewed the proposal and comments at a public meeting.  The Members discussed that the current rule (without any amendment) closely tracks canon 3E of the Model Code of Judicial Conduct of the ABA.  Moreover, it was noted that no code of judicial conduct or recusal rule in this state contains a rule that imposes a blanket prohibition of disclosure of reasons for recusal, as the initial petition for rule revision proposed.  However, considering the September 2004 petition for rulemaking, the comments received at the November 19, 2004 hearing in response to that petition, the proposals generated by the advisory committee, and the comments received at the September 30, 2005 hearing in response to the proposed rule, the Workers’ Compensation Board deemed it necessary to clarify and reinforce the importance of preserving the impartiality of the Administrative Law Judges.  The Board, under its authority to adopt rules of procedure and practice before the Workers’ Compensation Board, decided to adopt a rule that states that the ALJ “is not required to disclose the reason or reasons for the disqualification except as required by law.”  In doing so, the Members chose to remove the language allowing for “reasonable management inquiries for docket or case management purposes.”(4)

            In addition to addressing the concerns raised by the comments to the initially proposed rule amendment, the Board considered its decision consistent with its obligation and authority to adopt rules governing practice and procedure before the Workers’ Compensation Board and fostering and protecting the ALJs’ ability to provide full, fair and speedy hearings and decisions, while recognizing the Chair’s statutory responsibilities to manage the agency.  In this regard, the Members stressed that they had confidence in the ability and professionalism of the ALJs and did not foresee any problems with future recusals.  In addition, the Board noted that other management methods for monitoring an ALJ’s performance were available, such as gauging an ALJ’s productivity of orders and timeliness of decisions through already existing data compilation systems.

            4. Order of Adoption for OAR 438-006-0095(2) (Exhibit A).  The Board has thoroughly reviewed and considered all comments pertaining to its proposed amendments to OAR 438-006-0095.  After completing its deliberations, the Board has decided to adopt amendments to OAR 438-006-0095, but in doing so, eliminate the phrase “and reasonable management inquiries for docket or case management purposes,” for the reasons explained above.  The adopted amended rule is contained in Exhibit A, attached and incorporated by this reference.  The Board finds that this amended rule is reasonable and proper because it is designed to implement necessary modifications to the Board’s “Change of Administrative Law Judge” rule to address the concerns expressed during the aforementioned rulemaking procedures. 

            Finally, adoption of this amended rule at section (2) requires renumbering the existing sections (2), (3), (4), and (5), as sections (3), (4), (5), and (6), respectively.  In addition, the reference in section (1) to section (3) is renumbered to section (4).  Such amendments are presented in Exhibit A, attached and incorporated by this reference.

            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.

            In accordance with its Notice of Proposed Rulemaking, the Board adopts the attached rule, as set forth in Exhibit “A” incorporated herein by this reference, as a permanent rule of the Workers’ Compensation Board, to become effective on filing with the Secretary of State’s office and to apply to all changes of Administrative Law Judges arising on or after the date of filing these rules with the Secretary of State.

            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:  Greig Lowell, Board Member and facilitator of the advisory committee; John M. Howell, ALJ; Abigail L. Herman, ALJ; James C. Egan, attorney with the claimant’s Bar; Martin L. Alvey, attorney with the claimant’s Bar; Christopher D. Moore, attorney with the claimant’s Bar; J. Kevin Shuba, attorney with the defense Bar; Rodger M. Hepburn, attorney with the defense Bar; Steven R. Cotton, attorney with the State Accident Insurance Fund (SAIF); and Thomas E. Ewing, Chief Judge, Office of Administrative Hearings.  The Board Members thank the members of the advisory committee for their service.

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          2. Members Biehl, Kasubhai, and Lowell voted to proceed with rulemaking.  Then-Chair Maureen Bock and Member Langer voted not to proceed with rulemaking.

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          3. Member Kasubhai voted against adopting the rule because of the last clause in the proposed rule, “and reasonable management inquiries for docket or case management purposes.”  Member Kasubhai explained that the clause would inject an inappropriate degree of subjectivity regarding what is a reasonable management inquiry such that the Board would not be able to effectively and satisfactorily solve the problem of preserving and protecting ALJ impartiality.

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          4. Members Langer and Lowell and Chair Herman voted for this revision; Members Biehl and Kasubhai voted against it.  Instead, Member Kasubhai proposed that the following language be adopted:

“(2) When an Administrative Law Judge recuses himself or herself from a proceeding under this rule because his or her impartiality in adjudicating the proceeding might be questioned, the Administrative Law Judge shall not be compelled to disclose the basis for the recusal except as otherwise required and authorized by ORS Chapter 244.  Recusal, or refusal to disclose the basis for the recusal, by an Administrative Law Judge from participating in a proceeding is not official misconduct, incompetence, inefficiency, indolence, malfeasance or other unfitness to render effective service, and may not be the basis for disciplinary action or a criterion in the performance evaluation of the Administrative Law Judge.”

          Member Kasubhai explained that absent an explicit protection as provided in his proposed amendment,
the rule adopted by the majority of the Board Members at best only implicitly includes a protection against an ALJ being disciplined for choosing not to disclose the basis for the recusal.  Members Kasubhai and Biehl voted for this amended language; Members Langer and Lowell and Chair Herman voted against it.

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