41 Trial Lawyer • Winter 2024 Comp Corner witnesses to testify by phone or bifurcation of jurisdictional issues before the merits of the claim are determined. OAR 438-006-0045 allows the parties to request clarification of the issues or of the employer’s position. However, the rule requires the parties first to confer. In fact, it is advisable to confer on an issue to determine if it may be resolved short of the filing of a motion. The Board’s policy is to consolidate to one date all requests for hearing regarding a single injured worker, though this is not always done automatically. OAR 438-006-0065. Under OAR 438005-0065(5), a party may request consolidated matters be bifurcated, or bifurcated matters be consolidated. Such a motion must be filed no less than seven days prior to the hearing. Postponement or continuance Motions to postpone or continue a matter are governed by specific rules. OAR 438-006-0081 (postponement), OAR 438-006-0091 (continuance). These rules provide specific limitations and a specific legal standard that a postponement or continuance be based on a finding of extraordinary circumstances. The failure of an employer/insurer to refer the matter to a representative is not a basis to postpone a hearing. In deciding motions and other matters, “the ALJ is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, and may conduct the hearing in any manner that will achieve substantial justice.” ORS 656.283(6). However, the ALJ must follow the rules adopted by the Board. ORS 656.726(5)(a). When the Board has granted the ALJ discretion on an issue, the Board reviews By Julene Quinn OTLA Guardian Motions in workers’ compensa- tion are limited. Unlike civil law, a motion to dismiss or motion for summary judgment to cut short the life of a case is not allowed, with one exception. Instead, a party, usually the injured worker, has a right to a hearing on the issue, even if it ends with dismissal of the case for lack of jurisdiction. Addressing Board hearings (as it is the primary jurisdiction for disputes in workers’ compensation), any party may request a hearing at any time on any matter concerning a claim. ORS 656.283(1). Once a hearing has been requested, the Board must set the matter for hearing promptly in front of an administrative law judge. ORS 656.283(3). The ALJ must determine the matter within 30 days of the hearing. ORS 656.289(1). The issues for hearing may be resolved prior to a hearing only upon the concurrence of the parties. Id. at (1), (4). This process does not leave room for disposition of the matter prior to a hearing by motion, unless the parties concur. Nevertheless, other motions that do not determine the matter may be made. OAR 438-006-0045 provides the procedure for motions generally. A party is allowed 10 days to respond, unless otherwise ordered by the ALJ. Motions may include the enforcement of discovery requests, permission for Motions in Workers’ Comp Issues & Topics for the Workers’ Compensation Attorney Julene Quinn any discretionary decision by an ALJ under the rule for abuse of discretion. SAIF v. Kurcin, 334 Or 399 (2002). The court will then review the Board’s decision for legal error. Id. One additional motion is important to mention. When there are multiple employers alleged to be responsible for an injury or disease, ORS 656.308(2)(c) allows a pre-hearing motion to dismiss an employer when the record does not contain substantial evidence to support a finding of responsibility against that employer. OAR 438-006-0115 is the administrative rule providing the process for that motion. Practice tip: Filing a written motion is a good idea for clarity and to preserve a record for appeal. If the parties are not able to resolve the issue by conferring, then a call to the ALJ’s office can prompt a telephone hearing on the issue to be sure it is timely resolved and allow the case may go forward with the ruling. Appellate practice tip: For any motion that might become an issue on appeal, the practitioner should document the record. This may be done with a written motion or summary letter after the ruling. Or, one might request the motion be recorded by the ALJ. Or, one might ask the ALJ to issue an Interim Order. 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 [email protected] or 503575-1253.
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