Logsdon v. SAIF Corp. , 181 Or. App. 317 ( 2002 )

LANDAU, J.

Claimant seeks review of an order of the Workers’ Compensation Board (board), challenging the adequacy of the board’s award of benefits and the failure of the board to permit him to engage in cross-examination of two physicians who provided medical opinions on reconsideration concerning the date that he became medically stationary. We affirm, writing only to address the board’s failure to permit claimant to cross-examine the physicians.

The pertinent facts are not in dispute. Claimant compensably injured his right knee in 1981. He received an award of scheduled permanent disability. In 1994, while working for employer, claimant again injured his right knee. Employer accepted a claim for acute septic arthritis of the knee. The claim was closed with an additional award of scheduled permanent disability.

In 1996, claimant sought treatment for continued pain and swelling of the right knee. His treating physician, Dr. Schieber, recommended a total knee replacement and authorized time loss beginning May 30, 1996. Employer eventually accepted a claim for aggravation of the right knee condition.

In 1998, Schieber recommended pain management therapy. At the pain center, Dr. Ploss reported that, because testing suggested that claimant was using heroin, pain center treatment was not appropriate. Ploss opined that claimant became medically stationary as of May 11,1998. Schieber agreed with Ploss as to the medically stationary date.

On August 19,1998, employer closed the claim by a determination order awarding temporary disability from May 30, 1996 through May 11, 1998, and awarding additional scheduled permanent disability for the right knee. Claimant requested reconsideration, and the order on reconsideration increased the award of scheduled permanent disability.

Claimant requested a hearing. He sought to compel employer to schedule depositions of Schieber and Ploss concerning their opinions about his medically stationary date. The administrative law judge (ALJ) denied the motion, reasoning that ORS 656.283(7) prohibits taking evidence that was not in the reconsideration record. On the merits, the ALJ ultimately reduced the award of scheduled pérmanent disability and upheld the award of temporary disability through May 11,1998. The board adopted the ALJ’s order.

On review, claimant asserts that the board erred in failing to remand the claim to permit him to cross-examine Schieber and Ploss concerning his medically stationary date. He argues that, under Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000), to the extent that ORS 656.283(7) precludes such cross-examination, the statute violates his rights to due process of law guaranteed by the Fourteenth Amendment to the federal constitution. Employer argues that, even under Koskela, cross-examination is required only when matters of credibility are at issue; in this case, the issue is simply one of “medical proof, not credibility.”

ORS 656.283(7) provides that “[e]vidence on an issue regarding a notice of closure that was not submitted at the reconsideration * * * is not admissible at hearing [.]” In Koskela, the court held that the statute requires that evidence offered at hearings on orders on reconsideration must be limited to what was presented in writing at reconsideration or what arises out of the reconsideration order itself. 331 Or at 375. Thus, it is clear that the statute forecloses the cross-examination of experts at a hearing on an order on reconsideration on the issue of when claimant became medically stationary. The question remains whether the statute, in so doing, is constitutional.

In Koskela, the Supreme Court addressed a related issue of whether ORS 656.283(7) is constitutional to the extent that it foreclosed the claimant from obtaining an oral hearing on the denial of permanent total disability benefits. The court held that, in failing to provide for such an oral hearing, the statute violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Applying the familiar three-part analysis of Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893,47 L Ed 2d 18 (1976), the court held: (1) a claimant whose claim has been accepted has a significant property interest in receiving permanent total disability benefits, Koskela, 331 Or at 378-79; (2) because a worker seeking permanent total disability benefits must establish willingness to work and reasonable efforts to find suitable employment, and because those elements “require judgment about the worker’s credibility and veracity,” the probable value of an oral hearing is substantial, id. at 381; and (3) requiring an oral hearing will not significantly impair the state’s ability to resolve claim disputes efficiently, id. at 382.

Taking our cue from Koskela, we examine claimant’s constitutional contentions in this case by applying the three-part analysis of Mathews. Indeed, because the facts in Mathews closely parallel those in this case, we examine the Supreme Court’s opinion in some detail. At issue in Mathews was whether the Due Process Clause of the Fifth Amendment requires the federal government to provide an opportunity for an evidentiary hearing before terminating social security temporary disability benefit payments on the ground that the claimant’s disability had ceased. The United States Supreme Court held that the constitution does not require such hearings. The Court held that determining the constitutional sufficiency of an administrative process involves a balancing of the individual and governmental interests that are affected. Mathews, 424 US at 334. That balancing requires consideration of three factors in particular:

“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 requirement would entail.”

Id. at 335.

Applying that analysis to the facts of that case, the Court first held that, while a claimant has a property interest in continued disability benefits generally, an interest in the continued receipt of temporary disability benefits is not particularly great. Id. at 340-42. Among other things, the Court considered significant in its assessment of the claimant’s interests that financial need does not necessarily determine eligibility for disability benefits, that the benefits are temporary in nature, and that other forms of government assistance become available when the termination of disability benefits causes substantial hardship. Id.

The Court next held that the risk of erroneous decisions and the probable value of additional procedural safeguards were limited at best. The Court noted that the determination of when a disability ceases is a medical decision that does not turn on the credibility of witnesses:

“[A] medical assessment of the worker’s physical or mental condition is required. This is a more sharply focused and easily documented decision than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and veracity are often critical to the decision making process. * * *

“By contrast, the decision whether to discontinue disability benefits will turn, in most cases, upon ‘routine, standard, and unbiased medical reports by physician specialists’ concerning a subject whom they have personally examined. * * * To be sure, credibility and veracity may be a factor in the ultimate disability assessment in some cases. But 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.”

Id. at 343 (citations and internal quotation marks omitted).

Finally, the Court held that requiring an evidentiary hearing in termination of disability cases would entail fiscal and administrative burdens far out of proportion to any benefits that might be obtained thereby. Id. at 347-49;

We turn to this case, beginning with the nature of claimant’s interest in the determination of his medically stationary date. The determination of that date, among other things, cuts off entitlement to temporary disability benefits and requires a determination of the extent of permanent disability. Entitlement to temporary disability benefits certainly is a property interest protected by the Due Process Clause. See Carr v. SAIF, 65 Or App 110, 120-21, 670 P2d 1037 (1983) (claimant’s interest in uninterrupted receipt of temporary disability benefits subject to due process protection). But, as in Mathews, the significance of that property interest is limited. See Carr, 65 Or App at 120 (“[A]lthough the interest of [a] claimant in temporary total disability benefits is significant, it is generally less than the interest of a recipient in Mathews”). It is a temporary benefit that does not have an irrevocable impact on a worker’s self-sufficiency and livelihood, as was the case, for example, in Koskela. 331 Or at 378-79.

Turning to the risk of erroneous decisions and the probable value of additional safeguards, we note that the disputed issue in this case is the date on which claimant’s medical condition became stationary. That is precisely the same issue that was disputed in Mathews. As the Court noted in that case, the determination of when a claimant’s disability ceases — or, in this case, when claimant became “medically stationary” — is generally determined by reference to routine, standard, and unbiased medical reports. Witness credibility and veracity are rarely involved. This case, therefore, stands in distinct contrast to Koskela, in which the court took pains to emphasize that its assessment of the risk of erroneous decisions largely turned on the worker’s credibility concerning his or her willingness to work and reasonable efforts to find suitable employment. Koskela, 331 Or at 380 (due process requires an oral hearing “when, as here, the decision-maker must resolve factual disputes involving credibility and veracity”).

Claimant concedes that the factual question to be determined in this case closely resembles the question at issue in Mathews and that, in both cases, the decision turns on a review of medical records. He nevertheless insists that, at least in some cases, it may be important to determine whether the medical opinions were subject to undue influence by employers or insurers. As the Supreme Court noted in Mathews, however, even if credibility concerns arise in some cases, “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.” 424 US at 344.

Finally, we turn to the state’s interest and the cost of added procedural safeguards. The state’s interests include, among other things, the development of a complete record at an early stage in the process to promote a speedy and efficient remedy for workers seeking benefits. Koskela, 331 Or at 381. To require physicians to submit to additional discovery and to cross-examination at hearing would involve scheduling burdens and would consume time and resources of both the parties and the state. The extent of those incremental costs is debatable. As the Supreme Court observed in response to similar considerations in Mathews, however, “experience with the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial.” 424 US at 347.

Even assuming that the costs would be minimal, the fact remains that we must weigh even those minimal costs against the likely benefits that they would produce. Mathews, 424 US at 348; Koskela, 331 Or at 382. In this case, given the limited nature of claimant’s interest, and given the fact that credibility and veracity simply are not germane to the disposition of most disputes concerning a claimant’s medically stationary date, we conclude that the procedural safeguards that claimant demands simply are not constitutionally required.

The dissent contends that, in the foregoing analysis, we have failed to apply Mathews properly in each of its three parts. With respect, we are unpersuaded by the dissent’s contentions.

The dissent first contends that, in concluding that claimant’s interests in this case are less significant than those at issue in Mathews, we err. Quoting our decision in Carr, the dissent urges that the deprivation of temporary benefits is significant. 181 Or App at 328 (Wollheim, J., dissenting). The dissent’s reliance on Carr is fine, as far as it goes. The dissent simply ends its quotation too quickly, neglecting to include our conclusion in that case that, “although the interest of [a] claimant in temporary total disability benefits is significant, it is generally less than the interest of a recipient in Mathews.” Carr, 65 Or App at 120 (emphasis added).

The dissent contends that we likewise err in evaluating the risk of erroneous decisions in failing to afford the right to cross-examine experts on the determination of a medically stationary date. The dissent makes the point by reciting the facts of this case and urging that claimant’s search for the truth will be compromised if he cannot cross-examine employer’s physicians. 181 Or App at 328-29 (Wollheim, J., dissenting). With respect, the dissent’s observations about the record in this case are beside the point. As we have noted, Mathews admonishes us to determine what due process requires, not on the basis of the facts of a particular case, but rather by evaluating “the risk of error inherent in the truthfinding process as applied to the generality of cases.” 424 US at 344 (emphasis added). Although it is not clear what is meant by “the generality of cases,” it is clear that more is required than demonstrating risk of error in a single case. Id. Moreover, in Mathews, the Court expressly concluded that, because, in the generality of cases, the determination of the date a claimant’s disability ceases is determined by reference to routine, standard, unbiased medical reports, the risk of error in relying on written reports is minimal. Id. The Court’s conclusion directly controls ours as to the determination of precisely the same issue in this case.

Finally, the dissent contends that we err in evaluating the burden that would result in permitting cross-examination of medical experts on the determination of medically stationary dates. According to the dissent, any burden associated with permitting cross-examination or depositions would be minimal. 181 Or App at 330 (Wollheim, J., dissenting). The dissent, however, mischaracterizes the relevant inquiry. Mathews requires more than merely establishing the burden that would result from requiring the additional procedure; instead, it requires that we weigh that burden against any benefits that might be obtained, once again, in the generality of cases. 424 US at 347-49. The dissent neglects to explain — and we do not understand — how, even assuming that the burdens of permitting cross-examination would be minimal, those burdens would be justified in light of the minimal benefits that might thereby be obtained in the generality of cases. See Mathews, 424 US at 344.

Affirmed.