Department of Consumer and Business Services
Workers' Compensation Board - Chapter 438
Division 7
EVIDENCE — HEARINGS
438-007-0018
Exchange and Admission of Exhibits at Hearing
(1) Not later than 28 days before the hearing, the insurer or self-insured employer shall provide the claimant and other insurer or self-insured employer legible copies of all documents that are relevant and material to the matters in dispute in the hearing, together with an index. The index shall include the document numbers, description of each document, author, number of pages and date of the document. The documents shall be arranged in chronological order and numbered, in Arabic numerals, in the lower right corner of each page, beginning with the document of earliest date. The numbers shall be preceded by the designation "Ex," and pagination of multiple-page documents shall be designated by a hyphen followed by the page number. For example, page two of document two shall be designated "Ex 2-2." A physician's chart notes constitute a multi-page document to the extent that the date of each individual chart note is subsequent to the date of the preceding exhibit and is earlier than the date of the next exhibit. However, for deposition transcripts, only the cover page of the deposition need be numbered; i.e., "Ex. 3."
(2) Not less than 14 days before the hearing, or within seven days of receipt of the insurer document index and documents, whichever is later, the claimant shall provide the insurer(s) or self-insured employer(s) legible copies of any additional documents that are relevant and material to the matters in dispute in the hearing. The additional documents shall be marked and accompanied by a supplemental document index, prepared in the same manner as the insurer documents and index and numbered to coincide in chronological order with the insurer's documents. Letter subdesignations shall be used to ensure chronological numbering. For example, a document which is chronologically between documents six and seven of the insurer documents shall be designated "Ex 6A."
(3) Before or at the hearing, the parties shall delete from their indexes and packets of documents those documents which are cumulative, or which no party can in good faith represent to be relevant and material to the issues, and the revised indexes and packets of documents shall be submitted to the Administrative Law Judge. For compliance with this rule, it is sufficient for the parties to mark neatly through the index description of the documents not being offered in evidence with ink, and to remove the corresponding documents from the packets submitted to the Administrative Law Judge.
(4) Filing of the documents described in section (1) shall not establish that:
(a) The insurer or self-insured employer is the sponsor for each of these documents for purposes of admission into the evidentiary record; or
(b) The claimant is automatically entitled to cross-examine the author of any document filed by the insurer or self-insured employer under section (1).
(5) Subject to ORS 656.287(l), at the hearing the Administrative Law Judge may in their discretion allow admission of additional medical reports or other documentary evidence not disclosed as required by OAR 438-007-0015. In the exercise of this discretion, the Administrative Law Judge shall determine whether material prejudice has resulted from the timing of the disclosure and, if so, whether there is good cause for the failure to timely disclose that outweighs any prejudice to the other party or parties. Following a finding of material prejudice, the Administrative Law Judge may exclude a document or continue the hearing for such action as is appropriate to cure the material prejudice caused by the late disclosure of the document.
Statutory/Other Authority: ORS 656.726(5)
Statutes/Other Implemented: ORS 656.726(5)
History:
WCB 12-2022, minor correction filed 03/15/2022, effective 03/15/2022
WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14
WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03
WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02
WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95
WCB 2-1989, f. 3-3-89, ef. 4-1-89
WCB 5-1987, f. 12-18-87, ef. 1-1-88