There are a few ways you can take your Oregon Workers' Compensation claim to hearing in front of an Administrative Law Judge (also called an "ALJ"). Most cases we handle go to hearing after we request hearing on a claim denial. Here are a few other examples:
- An appeal of a denial for a request to include specific medical conditions in our client's claim.
- An appeal of a denial for proposed medical care.
- An appeal of an Order on Reconsideration (this is an appeal of an appeal of a Notice of Closure).
What happens at hearing will depend on the issue you bring to the ALJ. For example, if you appeal an Order on Reconsideration, the case is assigned to an ALJ for a "hearing," but usually there is no hearing. Instead, the parties will usually provide the ALJ exhibits, and argue in writing. More on that below.
Our summary will concentrate on a hearing involving the appeal of a claim denial.
Let's Talk About What Happens Before the Oregon Workers' Compensation Hearing
It makes sense to talk about what happens as the hearing approaches to put this all in perspective.
The hearing starts when someone, usually the injured worker, files a request for hearing. When the Oregon Workers' Compensation Board receives the request, it will begin the scheduling process, and look to schedule a hearing at the nearest Hearings Division Office. Most of our hearings are scheduled in Portland, Oregon, but we routinely request that the hearings be held in Astoria. Workers' Compensation hearings are also set in Salem, Medford, and Eugene. There are also un-staffed offices in Bend, Coos Bay, Klamath Falls, Newport, and Ontario, among others.
A notice of hearing is sent out to all parties, which includes the injured worker, the insurer, and the employer. Before the hearing occurs, the insurer will provide the ALJ assigned to the case an exhibit packet. The injured worker can then supplement the exhibit file with their own submissions. Often, exhibits, usually medical opinions, are provided within days of hearing, or even at the hearing. When exhibits come in at the last minute, one party may decide to "cross examine" the author of the exhibit. These are usually medical opinions, and the authors or usually doctors. More on how that affects the hearing below.
Sometimes, there may be a disagreement or dispute between the parties before the hearing. There also may be in need to meet with the Judge for housekeeping matters, like scheduling of hearings. The Administrative Law Judge will schedule a telephone conference to resolve these issues before the hearing. Some judges schedule a pre-hearing conference just to make sure everyone is ready to go to hearing.
Oregon Workers' Compensation hearings are somewhat like a court trial. However, the rules of evidence are more liberal, and the proceedings are less formal. For example, if you were in a court trial, medical records would have to be subpoenaed into the hearing, and you may even have to have a records custodian verify that the medical records are true and correct copies. Medical opinions in court require the doctor to appear at trial or testify under oath on video recording. Oregon Workers' Compensation rules allow written opinions as exhibits, but sometimes depositions (testimony under oath put into writing) are admitted as an exhibit.
At the hearing, the Administrative Law Judge goes over the issues and exhibits with each attorney before "going on the record." "Going on the record" is when recording the hearing begins. Along with the exhibits, recording the hearing is part of the official "record" of the case. The "record" is the body of evidence (exhibits and testimony) that the ALJ will base their opinion upon. Once all the issues are sorted out, the ALJ goes on the record.
After the Administrative Law Judge recites the issues, and admits the exhibits, each party is given the opportunity to give an opening statement. The opening statement advises the Administrative Law Judge about the evidence.
After the opening statements, the party with the burden of proving their case presents their case and can call witnesses. Witnesses are not required all the time. The opposing attorney can question these witnesses, which is known as "cross-examination." After the party with the burden of proving their case is finished calling witnesses, they will "rest their case." Then, the other side may put on their case, and calling their own witnesses.
When exhibits are "offered" within days of hearing, the other party may choose to cross-examine the author of the report. As we explained, most of the time this involves a doctor's report offering an opinion. When the other party cross examines the doctor, the hearing does not conclude. Instead, the ALJ will "continue" the hearing, which is like calling a time out. The deposition is scheduled. After the deposition, a transcript of the testimony is prepared and submitted as an exhibit. Closing arguments are then scheduled, sometimes in person, or on the phone. Depending on the issues, the parties may submit written closing arguments.
Once the closing arguments are done, the case is ready for the ALJ to review all the evidence to issue an Opinion and Order.
The Injured Workers' Testimony
When the hearing involves a claim denial, the injured worker will almost always testify at the hearing, but the testimony will depend on the issue.
In some cases, the denial is based on a claim that the worker was not at work when the injury occurred. These are called "course and scope" cases. The injured worker's testimony will focus on their job duties, and the employer-employee relationship.
If the the case involves a dispute regarding the nature and extent of the injury, the injured worker may talk in great detail about the "mechanics of injury." This is a description of how the leg, arm, or lower back was injured.
Sometimes, the case involves a claim where some medical problems are accepted, but other medical conditions are not. The injured worker may talk about how the injury occurred, but also their medical history.
The Opinion and Order
The ALJ reviews the evidence and decides the case in an "Opinion and Order." This is the written decision on the case. ALJ's try to get the Opinion and Order issued within thirty days after the closing arguments occur. Everyone involved, including the employer, the insurer, and the injured worker receive a copy of the Opinion and Order. The Opinion and Order can be appealed to the Workers' Compensation Board.
If you received a claim denial, or a notice of hearing, and have questions, contact us. We can help you know where you stand and lay out your options.