Lead Opinion
The Oregon Supreme Court remanded this workers’ compensation case to us for reconsideration in light of its decision in Koskela v. Willamette Industries, Inc.,
The relevant facts are few and undisputed. Claimant compensably injured his neck, shoulders, and chest. Employer accepted the claim and, after claimant became medically stationary, issued a notice of closure awarding 16 percent unscheduled permanent partial disability. A worksheet attached to the notice indicated that claimant’s BFC and residual functional capacity (RFC) were light. Claimant requested reconsideration, and the reconsideration order upheld the notice of closure. Claimant requested a hearing. At the hearing, he requested an opportunity to testify concerning the rating of his BFC. The administrative law judge declined the request, concluding that ORS 656.283(7) precludes the admission of evidence that was not in the reconsideration record, and the board affirmed. The board ultimately awarded claimant 21 percent disability, but claimant petitioned for judicial review, seeking additional compensation. He advanced two assignments on review. First, he argued that the board erred in failing to permit him to testify at the hearing concerning the rating of his BFC. According to claimant, he has a right to do so, guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States
Claimant petitioned for review. While the petition was pending, the Oregon Supreme Court issued its opinion in Koskela. In that case, the court held that, notwithstanding ORS 656.283(7), a claimant seeking permanent total disability benefits has a constitutional right to an oral evidentiary hearing. The court reached that conclusion by applying the three-part analysis of Mathews v. Eldridge,
1. It now falls to us to determine whether that decision requires a different result in this case. Following the lead of the Oregon Supreme Court in Koskela, we examine the procedure in this case in light of the three Mathews factors.
We begin with the nature of claimant’s interest. At issue in this case is the extent of claimant’s entitlement to permanent partial disability benefits, determined by calculation of, among other things, his BFC. As we explained in SAIF v. Fister,
“The amount of compensation that an injured worker receives for a permanent injury depends on the extent of the disability (called ‘permanent partial disability,’ or PPD) caused by the injury. ORS 656.214(5). The extent of disability, expressed as a percentage {e.g., ‘14 percent PPD’), depends in turn on the seriousness of the injury ‘as modified by factors of age, education and adaptability to perform a given job.’ ORS 656.726(4)(f)(A). The Department of Consumer and Business Services provides formulas for*306 expressing these modifying factors as numbers. A high number adds to the extent of disability, which, in turn, adds to the injured worker’s compensation.
“The modifying factor at issue in this case is ‘adaptability.’ Adaptability, under the Department’s rules, is determined by comparing the worker’s ability to perform work before and after the injury or, in the language of the rules, by comparing the worker’s ‘base functional capacity (BFC) with his or her ‘residual functional capacity (RFC). Former OAR 436-35-310(2) (1994). These statutes and rules reflect the proposition that a worker whose injury causes a significant loss of working capacity deserves more compensation than a worker whose injury inflicts minimal harm to working capacity!.]”
(Footnote omitted.)
A worker who sustains partial disability remains able to work; indeed, a partially disabled worker has the right either to return to work with the employer at injury, ORS 656.415, or to obtain vocational assistance or training if he or she is unable to find suitable new employment, ORS 656.340(6). A worker who sustains partial disability also is entitled to reasonable and necessary medical services, ORS 656.245, and to a reopening of the claim for additional benefits if the compensable condition worsens or if new medical conditions develop as a result of the compensable condition. ORS 656.273(1). Thus, the purpose and effect of an award of permanent partial disability is different from the award of permanent total disability that was at issue in Koskela. As the Supreme Court noted in that case, an award of permanent total disability implicates a significant property interest because its purpose is to provide a form of lifetime total wage replacement. According to the court, the importance of economic self-sufficiency is “self-evident.” Koskela,
We turn to the risk of erroneous decisions and the probable value of additional safeguards. In Mathews, the United States Supreme Court observed that a determination
In our view, the calculation of a claimant’s BFC is much more like the matters at issue in Mathews and Logsdon than those at issue in Koskela. Under applicable administrative rules, the principal method of determining a BFC is by reference to the Dictionary of Occupational Titles (DOT) code. OAR 436-035-0310(3)(a). In some cases, it also may be determined from a physical capacity evaluation performed by medical experts before the injury or disease or from job descriptions concerning the nature of the worker’s duties at the time of the injury. In this case, the board determined claimant’s BFC by reference to the DOT code. Although it is conceivable that, in at least some cases, a claimant could take issue with the accuracy of a job description, the resolution of such a dispute does not inherently involve matters of credibility and veracity. Moreover, as the United States Supreme Court observed in Mathews, “procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”
Finally, concerning the state’s interests and the costs of added procedural safeguards, we note that, even
In any event, given the relatively limited nature of the individual property interest involved in a BFC calculation, and given the fact that credibility and veracity simply do not ordinarily pertain to a determination of a claimant’s BFC, we conclude that the added procedural benefits obtained by requiring an oral hearing are too meager to outweigh the state’s interest in developing a complete record at an early stage in the process to promote a speedy and efficient remedy for workers seeking benefits.
As it does in Logsdon, the dissent takes issue with our application of Mathews in this case. And, as in Logsdon, we find the dissent’s arguments in this case unpersuasive.
The dissent begins by complaining that we err in unjustly “minimizing” the importance of the interest at stake. According to the dissent, a claimant’s interest in permanent partial disability benefits is significant because those benefits are, to some extent, designed to provide a substitute for lost income occasioned by a workplace injury.
Next, the dissent complains that we err in concluding that the risk of erroneous decisions as to a worker’s BFC is minimal in the absence of cross-examination. Although the dissent acknowledges that the BFC is ordinarily determined
Third, the dissent asserts that any burden associated with permitting cross-examination will be minimal.
2. Citing Wigmore’s treatise on evidence, the dissent finally insists that cross-examination “is the best method for discovering the ‘truth.’ ”
Reversed and remanded for reconsideration.
Concurrence Opinion
concurring in part and dissenting in part.
The majority concludes that claimant does not have a constitutional right to testify at his extent of disability hearing. Because I disagree with the majority’s application of the Mathews v. Eldridge,
The issue here is the extent of claimant’s unscheduled permanent partial disability (PPD), which is calculated by determining the “loss of earning capacity due to the compensable injury.” ORS 656.214(5).
“The extent of disability, expressed as a percentage {e.g., T4 percent PPD’), depends in turn on the seriousness of the injury ‘as modified by factors of age, education and adaptability to perform a given job.’ ORS 656.726(4)(f)(A). The Department of Consumer and Business Services provides formulas for expressing these modifying factors as numbers. A high number adds to the extent of disability, which, in turn, adds to the injured worker’s compensation.”
SAIF v. Fister,
“These statutes and rules reflect the proposition that a worker whose injury causes a significant loss of working capacity deserves more compensation than a worker whose*311 injury inflicts minimal harm to working capacity, even if both workers end up identically disabled.”
Id. at 15. See also Ford v. SAIF,
Claimant sustained a compensable injury to his neck, upper back, and right shoulder. A June 1996 notice of closure awarded claimant 16 percent unscheduled PPD. This award considered the relevant social and vocational factors plus claimant’s impairment. The specific dispute here concerns claimant’s work during the five years before the injury. The closure order determined that claimant’s work history consisted of one job, production assembler, which was described as light work. OAR 436-035-0310(3)(f) defines light work as “the ability to occasionally lift 20 pounds and can frequently lift or carry objects weighing up to 10 pounds.”
Claimant submitted evidence during reconsideration that his past work was “heavy.” OAR 436-035-0310(3)(j) defines “heavy” work as “the ability to occasionally lift 100 pounds and the ability to frequently lift or carry objects weighing 50 pounds.” The specific jobs and their accompanying strength levels that claimant submitted at reconsideration are: (1) Christmas-tree farm worker, Dictionary of Occupational Titles (DOT) strength level, Heavy; (2) Cannery worker, DOT strength level, Light; (3) Farm worker, fruit II, DOT strength level, Medium; (4) Vine pruner, DOT strength level, Light; (5) Lumber handler, DOT strength level, Heavy; and (6) Assembler, production, DOT strength level, Light.
The reconsideration order still classified claimant’s work as light and affirmed the award of 16 percent PPD. Claimant requested a hearing and sought to testify regarding his actual job duties for his employer and past employers. In an offer of proof, claimant indicated that his testimony would establish that his past work was heavy. If claimant was correct that his past work was heavy, then he should have received an award of 36 percent PPD, rather than the 16 percent PPD award he actually received.
The majority holds that there is no statutory right to testify at an extent of disability hearing and that claimant
Due Process Analysis
Although I agree that the three-part analysis from Mathews applies, as required by Koskela, I disagree with the way in which those factors are applied by the majority. Those three factors are:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”
Mathews,
Private Interest Affected
First, the majority unjustifiably minimizes the importance of the interest at stake by focusing on the fact that permanent partial disability benefits are at issue. The majority distinguishes that interest from the permanent total disability benefits that were involved in Koskela, concluding that an award of PPD is not as significant. The majority supports its position by relying on the fact that a claimant who is partially disabled still remains able to work and therefore the “issue of economic self-sufficiency is not so directly implicated.”
In Koskela, the court concluded that the claimant’s interest in permanent total disability benefits was great because the benefits provide economic self-sufficiency and
Risk of Erroneous Decisions
The second Mathews factor is the risk of erroneous decisions and the probable value of additional safeguards. The majority states that the facts of this case are more similar to those involved in Mathews than those in Koskela. As I discussed in my dissent in Koskela, the analogy is not perfect. Koskela v. Willamette Industries, Inc.,
The majority also cites Mathews as authoritative in the question of whether credibility is invoked in the determination of a worker’s BFC. In Mathews, the Court said that a determination of when a claimant’s disability ceases is an issue of medical proof that is generally determined by reference to routine, standard, and unbiased medical reports and thus witness credibility and veracity are rarely involved.
There is a difference between a determination of when a person’s disability ceases and a determination of one’s BFC. The former is a question of medical proof that can
I disagree. When the board relied on the “facts” as stated in the DOT, claimant was precluded from challenging those “facts” and explaining how his job duties exceeded those described in the DOT. The BFC determination requires the decisionmaker to resolve factual disputes as to the claimant’s past work and, in so doing, to make judgments about credibility and veracity.
The claimant has the burden of proving the extent of disability. ORS 656.266(1). Claimant argues that his BFC was classified incorrectly. In an adversarial hearing process, the only fair method to determine a claimant’s BFC is through testimony from the claimant as to what the job duties were. If the employer disagrees, it can cross-examine the claimant or present evidence that refutes the claimant’s testimony.
Government Interest & Fiscal and Administrative Burden
The majority overstates the burden of allowing a claimant to testify about BFC. The opinion states that there are 6,000 annual claim closures and 12 annual permanent total disability awards.
Finally, as a matter of fundamental fairness, claimant should have been given the opportunity to testify.
“The essence of fundamental fairness is the opportunity to be heard at a meaningful time and in a meaningful manner. Fundamental fairness emphasizes factfinding procedures. The requirements of notice, adequate counsel, confrontation, cross-examination, and standards of proof flow from this emphasis.”
State ex rel Juv. Dept. v. Geist,
The fundamental consideration that the majority fails to acknowledge is the key distinction between the facts
For the reasons stated in this dissent and my dissents in Logsdon v. SAIF,
Notes
I concur with the result reached because I would conclude that the case must be remanded to the board because the board made inconsistent findings.
However, the best way to test the accuracy of those medical records is through cross-examination. See Logsdon v. SAIF,
Our dispute resolution system is premised on the belief that the adversarial system will produce the “truth” and that cross-examination is the best method for discovering the “truth.”
“It may be that in more than one sense, [cross-examination] takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate this its wonderful power, there has probably
John Henry Wigmore, 5 Evidence in Trials at Common Law § 1367, 32 (1979).
I assume the majority’s numbers are correct, although it does not state its source.
Whether such a procedure satisfies the Due Process Clause is not an issue here. The point is that the legislature determined that allowing an injured worker to testify is appropriate.