Summary by the Injured Worker Coalition (IWC)
http://www.injuredworker.org/IWC/index.htm

House Bill 3538

Relating to permanent disability in workers’ compensation claims
Sponsored by Representative MERKLEY; Representatives DINGFELDER,
TOMEI (at the request of the Injured Worker Coalition)

House Bill 3538  will correct current statutes so they comply with the Oregon and United States Constitutions. One of the most basic rights of citizens is to be able to face a jury of their peers yet injured workers are denied this.

The Oregon Supreme Court ruled in December 2000 that workers are unconstitutionally deprived of the right to present evidence regarding their disabilities in the reconsideration process. In Koskela v. Willamette Industries, Inc. the Court held that the “post-1995 statutory scheme for assessing whether a worker should receive an award of PTD benefits fails to satisfy procedural due process requirements.” They further stated, “Allowing a worker, at some meaningful stage of the process, an opportunity for at least some kind of oral evidentiary hearing will not significantly impede the state’s interest in providing a cost-effective process, because hearings can be conducted in a manner that achieve both fairness and efficiency.”

Specifically, current statutes violate Article I, Section 10 of the Oregon Constitution and procedural due process rights under the Fourteenth Amendment to the United States Constitution. Workers are not allowed an oral evidentiary hearing and therefore denied the opportunity to provide a meaningful record on the elements of proof that are necessary to meet the burden of proof and persuasion required to establish the extent of their disabilities.

House Bill 3538 will also inform workers, within the notice of claim closure, that they can request a copy of all medical reports and reports of vocational rehabilitation agencies or counselors. At present time, few workers know they can receive these documents that will assist them in better understanding their injuries.

The Injured Workers Coalition suggest the following remedies:

• As workers bare the burden of proving the extent of their disabilities, permit recently acquired evidence. Changes in 1995 prohibited the introduction of new evidence at hearing;
• Allow testimonial evidence from the injured, family members, and lay witnesses who know them, along with physicians, vocational counselors, and other experts so the extent of injury can be better determined.
• Provide workers information within the notice of claim closure so they can make better-educated decisions about their future.