Mount v. Department of Consumer & Business Services

46 P.3d 210, 181 Or. App. 458, 2002 Ore. App. LEXIS 733

• Court: Court of Appeals of Oregon
• Decided: May 8, 2002
• Docket: 97-08823; A103636
• Status: Published

Opinions

EDMONDS, J.,

concurring.

The majority opinion in this case consists of a per curiam citation to Trujillo v. Pacific Safety Supply, 181 Or App 302, 45 P3d 1017 (2002). I agree with the dissent’s analysis in Trujillo. Therefore, it is necessary to explain why I agree with the dissent in Trujillo and yet concur with the majority in this case.

Under Mathews v. Eldridge, 424 US 319, 333, 96 S Ct 893, 47 L Ed 2d 18 (1976), the relevant factors to determine what due process requires in a particular administrative proceeding include the probable value of an evidentiary hearing. Where issues of the worker’s own credibility and veracity are implicated by a specific issue in the workers’ compensation proceeding, the probable value of an oral hearing where the worker can testify and challenge the reports of opposing witnesses by cross-examination is substantial, and due process requires that an oral hearing be afforded. Koskela v. Willamette Industries, Inc., 331 Or 362,15 P3d 548 (2000). In Trujillo, the issue is whether a base functional capacity (BFC) determination is the kind of determination where the probable value of an oral hearing is substantial. I agree with the dissent in Trujillo that, because the Dictionary of Occupational Titles (DOT) code will not always accurately reflect a claimant’s BFC and because a worker’s own assertions about the requirements of his or her job are important to the determination, an oral hearing is required to satisfy due process.

As we pointed out in SAIF v. Fister, 177 Or App 13, 15, 33 P3d 320 (2001), the determination of a claimant’s BFC is a complicated application of a complex administrative rule. We had previously ruled in that case that the Board had erroneously refused to consider testimony regarding the nature of claimant’s job at the time of her injury.¹ After the Board reconsidered on remand, the claimant, a certified nursing assistant, contended on judicial review that the Board had erred by classifying her BFC as “medium” when in fact, the correct classification, according to her, was “heavy.” The issue, as the Board characterized it, was which DOT classification the duties of claimant’s at-injury job more closely resembled. In an effort to understand the Board’s reasoning and its conclusion, we examined the evidentiary record for evidence of claimant’s five-year work history as well as whether she had successfully performed her job, or any job, at the time of injury. Those factual inquiries were all relevant to the application of the rule to determine her BFC and depended, in part, on whether claimant was credible in her description of her work duties. Fister lends support to the rule that, where a claimant’s own credibility is at issue, the claimant is entitled to cross-examine witnesses that would tend to affect a factfinder’s determination of credibility issues. Thus, due process requires a hearing in Trujillo, where the issue is the correct BFC and the claimant’s credibilty.

In contrast, the issue in Logsdon v. SAIF, 181 Or App 317,45 P3d 990 (2002) is what date the claimant became medically stationary. I agree with the majority in that case that that kind of decision is more like the determination in Mathews about whether the claimant’s disability had ceased for purposes of termination of social security temporary disability payments. Both determinations (the date that the claimant became medically stationary and the date the claimant’s disability ceased) are determinations that are generally made as the result of routine, standardized medical examinations and do not ordinarily depend on credibility assessments of the claimant. Instead, if credibility is involved at all, it is the credibility of a neutral medical professional, with no stake in the proceeding. Credibility is significantly less of an issue in such a proceeding.

That brings me to this case, where the issue is whether claimant has the right to cross-examine the medical arbiter as to why he reduced claimant’s permanent disability award from 21 percent to one percent. For the reasons stated above, I do not view the issue in this case to be controlled by the majority’s decision in Trujillo. Although the facts beg for the ability to cross-examine the arbiter, the proper question under Koskela is whether the issue before the arbiter is the kind of issue where the decision-maker must resolve factual disputes that involve credibility or veracity. Because the medical arbiter’s decision is not that kind of decision, I concur with the majority’s result that the due process clause does not require an oral hearing.²

1 Fister v. South Hills Health Care, 149 Or App 214, 942 P2d 833 (1997), rev den 326 Or 389 (1998).

2 The majority and dissent in these cases disagree about the importance of the frequency with which such credibility issues occur in each type of proceeding. On that point, I note only that questions of the appropriate BFC and the correct medically stationary date occur in many cases, while the type of credibility question which the dissent would find here (whether the arbiter had credible reasons for significantly reducing the amount of permanent partial disability without providing any explanation) does not appear to occur in the “generality of cases.” Mathews, 424 US at 344.