50 Trial Lawyer • Fall 2023 Comp Corner Workers’ compensation is strictly a creature of statute and provides a sui generis scheme of rights and obligations. Cato v. Alcoa-Reynolds Metals Co., 210 Or App 721, 731 (2007). If it is not contained therein, it cannot be done. The preference of a medical arbiter over the attending physician is simply an illegal presumption. The Director has promulgated a rule, currently OAR 436-035-0007(5)(b), in which they direct impairment to be determined by the medical arbiter over the attending physician, unless a preponderance of medical evidence demonstrates the attending physician’s measurements are more accurate. While the Director has broad authority, the Director is no more relieved of the court rulings requiring the preponderance of the evidence standard than is an ALJ or the Board. The statutes do not direct preference of the medical arbiter. The Board has authority The law is clear that an ALJ and the Board have de novo review over permanent disability issues. They are not bound by evidentiary rules from the Director governing the process of determining factual issues. ORS 656.704(1) gives the Board authority over the actions and orders of the Director making them “subject to the procedural provisions of this chapter and such procedural rules as the Workers’ Compensation Board may prescribe.” Under Marvin Wood Products v. Callow, 171 Or App 175 (2000), the Court of Appeals stated, “Review of a disabilityextent determination at a hearing before an ALJ and on review before the Board is de novo. See generally ORS 656.283(7) (ALJ hearing); ORS 656.295(5) (Board review).” Id. at 180. The Board has By Julene Quinn OTLA Guardian The Supreme Court and the Court of Appeals have long established the burden of proof in chapter 656 as a preponderance of the evidence, unless a statute specifies otherwise. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 55-56 (1979) (nothing in the statutes of workers’ compensation requires a quantum of proof greater than a preponderance of the evidence); Raines v. Hines Lbr. Co., 36 Or App 715, 719 (1978) (“The fact finder has to view the evidence objectively to determine if it preponderates in favor of the claimant.”). ORS 656.268 does not establish a higher burden. ORS 656.310 contains very specific presumptions, but does not include a presumption of the medical arbiter over the attending physician. Often an ALJ or the Board prefers the arbiter, because the report is closer in time to the order on reconsideration. This is nothing more than a presumption in fancy dress. A worker is medically stationary. Permanent impairment is just that: permanent. It does not change appreciably between one exam and another, otherwise the worker would not be medically stationary. Because a medical arbiter will always be closer in time to the order on reconsideration, preferring the arbiter for this reason creates a presumption not allowed by statute. Arbiter Over AP Issues & Topics for the Workers’ Compensation Attorney Julene Quinn authority to adopt its own evidentiary standards. ORS 656.726(5). There is simply no legal basis for the Board to adopt the Director’s evidentiary rule when determining permanent disability of a worker. In fact, use of such a rule contravenes the preponderance of the evidence standard established by the Supreme Court and Court of Appeals. I urge practitioners not to parrot the rule, but instead use this argument: In workers’ compensation, findings of fact are made based upon the preponderance of the evidence standard. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 55-56 (1979) (nothing in the statutes of workers’ compensation requires a quantum of proof greater than a preponderance of the evidence); Raines v. Hines Lbr. Co., 36 Or App 715, 719 (1978) (“The fact finder has to view the evidence objectively to determine if it preponderates in favor of the claimant.”) When determining permanent disability, the ALJ and Board have de novo review authority to make their own findings of fact from the evidence. Under Marvin Wood Products v. Callow, 171 Or App 175, 180 (2000). In order to determine the correct permanent disability, the ALJ/Board must weigh the evidence and determine what evidence preponderates in the claimant’s favor. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Quinn & Heus LLC, 4504 S. Corbett, Portland, OR 97239. She can be reached at julene.m.quinn@gmail.com or 503575-1253.
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