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
Interpreters (OAR 438-020, et seq.
and the Repeal of OAR 438-007-0035.
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WCB ADMIN. ORDER 1-2001



ORDER OF ADOPTION

          1. On January 25, 2001, 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 the use of interpreters in contested cases under the Workers’ Compensation Law. Copies of the notice were distributed to the Oregonian, the Associated Press, and to the Capitol Press Room on February 6, 2001. The notice was published in the Secretary of State’s March 2001 Administrative Rule Bulletin.

          On or about February 6, 2001, 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 meeting was published in the January/February 2001 issue of the Board’s News & Case Notes, which was posted on the Board’s web-site in February 2001. This notice was also published in the January 2001 and February 2001 issues of the Workers’ Compensation Section Newsletter, which were distributed to all Section members of the Oregon State Bar in early February 2001 and early March 2001. Notice of this hearing was also posted on the Board’s web-site in early February 2001.

          Thereafter, in accordance with the notice, a public hearing was conducted by Roger C. Pearson, Managing Attorney, on March 30, 2001 at Salem, Oregon. The record of the public hearing was closed at 5:00 p.m. on March 30, 2001.

          2. No individual offered testimony at the scheduled hearing. Before the hearing, four written comments were received from practitioners, an Administrative Law Judge, and Board personnel. 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, during normal working hours from 8:00 a.m. to 5:00 p.m., Monday through Friday.

          3. 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.

          As explained in the Board’s January 24, 2001 Statement of Need, legislative amendments regarding the use of interpreters have been enacted, amending ORS 45.273, 45.275, 45.285 and 45.288 and repealing ORS 183.418 and ORS 183.421. These amendments become effective July 1, 2001 and will encompass all "adjudicatory proceedings," including administrative hearings such as those conducted by the Workers’ Compensation Board. The amendments also provide the authority for "hearing officers" or their "designees" to appoint and remove interpreters under certain circumstances.

          Consistent with the amended statutory provisions, the Board has proposed the adoption of permanent rules concerning the use of interpreters for contested cases under the Workers’ Compensation Law. In conjunction with this action, the Board has also proposed repealing its existing "interpreter" rule (OAR 438-007-0035).

          These proposed rules are designed to implement procedures by which the Board is notified of the need for an interpreter, the process by which Administrative Law Judges or their designees appoint or remove interpreters, and the process by which the Board is to be notified that the need for an interpreter no longer exists. After completing its review and consideration of the comments presented in response to the proposed amended rules, the Board has reached the following conclusions.

          OAR 438-020-0001

          Subsection (2): The proposed rule defines "disabled person" as a person who cannot readily understand the proceedings because of deafness or a physical impairment, or cannot communicate in the proceedings because of a physical speaking impairment. A comment suggested that the rule be modified to include within the definition of "disabled person" any person with a physical or mental impairment.

          The rule’s definition of "disabled person" is taken from the definition set forth in ORS 45.285(4)(b). In light of such circumstances, the Board concludes that the suggested modification of the definition of "disabled person" would be inconsistent with the statutory definition. Consequently, the Board has decided not to modify this rule.

          Accordingly, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, contained in Exhibit A and incorporated herein by this reference.

          Subsection (3): A comment recommended that the term "Interpreter Services Coordinator," which is mentioned in other sections of Division 020, be included in the definition section of the rules.

          After considering this comment, the Board finds that it is reasonable, necessary, and proper to amend the proposed rule to include a definition for "Interpreter Services Coordinator" to mean "a Board employee who is responsible for coordinating procedures regarding the identification, appointment, notification, and removal of interpreters and who, when designated by an Administrative Law Judge, is responsible for appointing an interpreter." As a result of this modification, this definition becomes subsection (3), with the previously proposed subsection (3) being renumbered subsection (4) and the previously proposed subsection (4) being renumbered subsection (5). Accordingly, the Board adopts the proposed rule, as modified above, contained in Exhibit A and incorporated herein by this reference.

          Subsection (4): The proposed rule (previously numbered as subsection (3)) defines "non-English speaking person" as a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate effectively in the proceedings. A comment stated that the reason for a person’s inability to speak or understand the English language is irrelevant to the person’s need for interpreter services. Consequently, the comment recommended that the phrase "by reason of place of birth or culture" be deleted from the rule.

          The rule’s definition of "non-English speaking person" is taken from the definition set forth in ORS 45.275(8)(a). In light of such circumstances, the Board concludes that the suggested modification of the definition of "non-English speaking person" would be inconsistent with the statutory definition. Consequently, the Board has decided not to modify the rule in the manner suggested. However, the Board does find it reasonable, necessary and proper to renumber the subsection from (3) to (4) to coincide with the inclusion of the definition of "Interpreter Services Coordinator" under new subsection (3).

          Accordingly, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, as modified above, contained in Exhibit A and incorporated herein by this reference.

          Subsection (5): The proposed rule (previously numbered as subsection (4)) defines "qualified interpreter" in proceedings involving a "disabled person," as a person who is readily able to communicate with the disabled person, interpret the proceedings and accurately repeat and interpret the statements of the disabled person to the ALJ. Noting that the interpreter must also be able to interpret statements for the parties and the record, a comment suggested removal of the phrase "to the ALJ."

          The rule’s definition of "qualified interpreter" is taken from the definitions set forth in ORS 45.275(8)(b) and ORS 45.285(4)(c). In light of such circumstances, the Board concludes that the suggested modification of the definition of "qualified interpreter" would be inconsistent with the statutory definition. Consequently, the Board has decided not to modify the rule in the manner suggested. In making this decision, the Board notes that, as the adjudicator at the hearing level, the ALJ is responsible for determining whether the interpreter’s communication and interpretation skills satisfy the rule (which will necessarily include consideration of the "parties/record" concerns expressed by the comment).

          Finally, the Board finds it reasonable, necessary and proper to renumber the subsection from (4) to (5) to coincide with the inclusion of the definition of "Interpreter Services Coordinator" under new subsection (3).

          Accordingly, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, as modified above, contained in Exhibit A and incorporated herein by this reference.

          OAR 438-020-0005: This rule sets forth the authority for the assigned ALJ to designate either the ALJ or a designee to appoint interpreters. Having received no objection to the proposed 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 herein by this reference.

          OAR 438-020-0010

          Subsection (1): The proposed rule provides that the attorney for a party, or an unrepresented claimant, must notify the ISC when a party or a party’s attorney determines that an interpreter is needed. A comment suggests revising the rule to state that either the party or attorney shall notify the ISC.

          After considering this comment, the Board has decided not to modify this rule. In reaching this conclusion, the Board notes that the rule is intended to place the responsibility for providing notification to the ISC on a represented party’s attorney because that individual is likely to be more familiar with the Board’s rules and its procedures. Only in cases where a claimant is unrepresented, does the rule place the "notification" responsibility on the unrepresented party. Thus, the potential for possible confusion or misunderstanding regarding this "notification" process is reduced under the proposed version of the rule.

          Accordingly, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, contained in Exhibit A and incorporated herein by this reference.

          Subsection (2): The proposed rule provides that the Interpreter Services Coordinator (ISC) or the assigned ALJ will appoint a certified or qualified interpreter and promptly notify the parties or their representatives of the interpreter’s name. Noting that OAR 438-020-0005 indicates that the assigned ALJ may designate either the ISC or another designee to appoint an interpreter, a comment suggests that subsection (2) be amended to include the "ALJ-designee" situation.

          After considering this comment, the Board finds that it is reasonable, necessary, and proper to amend the proposed rule to include "another designee of the assigned ALJ" within the individuals who are authorized to appoint interpreters and notify parties/representatives of that appointment. Consequently, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, as modified above, contained in Exhibit A and incorporated herein by this reference.

          Subsection (4): The proposed subsection provides that "If a proceeding is postponed or continued after the appointment of an interpreter * * *." (Emphasis supplied.) A comment suggests that the emphasized phrase be moved to the beginning of the sentence as follows: "If, after the appointment of an interpreter, a proceeding is postponed or continued * * *." Another comment recommends that, rather than presuming no objection to the use of a previously-appointed interpreter when "no objection was made at the time of such appointment" (as the proposed rule provides), the quoted phrase be amended to state that "no objection was made within a reasonable time" after such appointment. This comment reasons that the modification insures that a party has a fair opportunity to react to the appointment of the interpreter if the hearing is postponed after the appointment for reasons other than an objection to or dissatisfaction with the appointment.

          After considering these comments, the Board finds that it is reasonable, necessary, and proper to amend the proposed rule in the manner suggested by the aforementioned comments. The Board considers such amendments will further clarify the intention and scope of the rule, and will be of assistance to parties, practitioners, and ALJs in future applications of the rule. Further, the amendment "within a reasonable time" is consistent with the language in OAR 438-020-0010(3). Consequently, the phrase "after the appointment of an interpreter" has been moved to the front of the sentence between the words "If" and "a." In addition, near the end of the sentence, the phrase "at the time of such appointment" has been replaced with the phrase "within a reasonable time after such appointment." Accordingly, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, as modified above, contained in Exhibit A and incorporated herein by this reference.

          OAR 438-020-0015: As explained in the Statement of Need, this rule specifies the reasons that, and process by which, the ALJ may remove an interpreter after an appointment has been made. A comment suggested that the phrase "at any time prior to or at the hearing" be replaced by "at any time prior to or during the hearing." Another comment proposed that subsection (1) of the rule be supplemented to provide that the grounds for removal of an interpreter include a conflict of interest with "the ALJ," as well as "any party, attorney or witness" as already set forth in the proposed rule.

          After considering these comments, the Board finds that it is reasonable, necessary, and proper to amend the proposed rule to replace the word "at" with "during" and to include a conflict of interest with "the ALJ" along with the other conflicts already described in subsection (1) of the rule. The Board finds that these modifications further clarify the scope of the rule, and will assist parties, practitioners, and ALJs in the future application of the rule. Consequently, for the reasons expressed in its previous Statement of Need, as well as those expressed above, the Board adopts the proposed rule, as modified above, contained in Exhibit A and incorporated herein by this reference.

          OAR 438-020-0020: This rule sets forth the process by which the Hearings Division is to be contacted when the need for an interpreter no longer exists. Having received no objection to the proposed 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 herein by this reference.

          OAR 438-007-0035: This rule describes the current procedures for obtaining an interpreter’s services. As explained in the Statement of Need, the statutory amendments (and the proposed amended rules) will replace the current rules (effective July 1, 2001, when the amendments become effective). Having received no objection to the proposed repeal of this rule, the Board finds, for the reasons expressed in its Statement of Need, and those discussed herein, that the repeal of this rule is reasonable, necessary, and proper. Accordingly, effective July 1, 2001, the Board repeals this rule, marked Exhibit B and incorporated herein by this reference.

    1. Under the authority granted by ORS 656.726(4), the Board finds that:
    1. All applicable rulemaking procedures have been followed; and
    2. 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 July 1, 2001 and to apply to all cases pending before the Board and its Hearings Division on or after July 1, 2001. The Board also repeals OAR 438-007-0035, as set forth in Exhibit "B," incorporated herein by this reference, effective July 1, 2001.

          The Board further orders that notice of this Order of Adoption, along with a certified copy of the amended rule, 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.