Koskela v. Willamette Industries, Inc.

LINDER, J.

Claimant seeks review of a Workers’ Compensation Board (board) order awarding him permanent partial disability (PPD) rather than permanent total disability (PTD). The petition for review raises only one issue: whether the administrative procedures for determining the extent of the permanent disability — in particular, the process for reconsideration and hearing — satisfy the requirements of the federal Due Process Clause. We hold that they do and affirm.

Claimant, who is approximately 60 years old, has a history of extensive temporomandibular joint (TMJ) difficulty, which involves episodic jaw pain and discomfort. He has been medically treated for that condition since at least 1982, and his treatment has included several surgeries. He suffered compensable injuries to his jaw twice, first in 1986 and again in 1989. In 1994, his treating physician declared him to be medically stationary, triggering the claim closure process. As part of that process, three other physicians independently examined claimant to assess the extent of his disability. Their examination included review of a videotape of defendant engaging in certain activities (e.g., mowing his lawn, driving his pickup, chopping wood, and fishing). Based on the videotape and their physical examinations, those physicians concluded that claimant could perform at least sedentary work. Claimant’s treating physician also viewed the videotape and agreed that claimant likely could perform certain activities, but he was unsure whether claimant could do so on a daily basis.

The Department of Consumer and Business Services (DCBS) reviewed the medical reports and issued a determination order finding claimant to be medically stationary and awarding him PPD. Claimant requested reconsideration by DCBS, seeking a determination that his disability is total, rather than partial. In requesting reconsideration, claimant did not dispute the impairment findings used to rate the extent of the disability. As a result, DCBS submitted the claim to the Appellate Review Unit (unit) for reconsideration, rather than appoint a medical arbiter to review the rating. In its order on reconsideration, the unit reviewed the physicians’ reports and agreed that claimant was only partially disabled. However, the unit modified the determination by increasing the PPD disability rating pursuant to a temporary rule.¹

Claimant sought administrative review, invoking his right to a hearing before an administrative law judge (ALJ). Before the hearing, claimant indicated he was prepared to offer his testimony, the testimony of his family physician, and the testimony of a vocational expert “to substantiate claimant’s case” and to show “in a convincing manner that claimant is permanently and totally disabled.” Claimant could have submitted that evidence by affidavit at the prior level of administrative review (reconsideration), but he made no effort to do so. Because that evidence had not been submitted at reconsideration, the ALJ ruled it inadmissible under ORS 656.283(7).² At the hearing, claimant’s counsel again asked to present the testimony and asserted a right under the Due Process Clause to do so. The ALJ rejected claimant’s due process argument and limited her consideration to the evidence presented at reconsideration and submitted at hearing for the ALJ’s consideration. On the basis of that evidence, the ALJ found that claimant was not entitled to PTD. Claimant appealed to the board, asserting that under the Due Process Clause, the proffered testimony should have been considered. The board rejected the constitutional claim and, on de novo review of the record, affirmed the ALJ’s order.

At the outset, it is helpful to clarify the precise legal challenge that claimant makes. Claimant asks us to declare invalid the 1995 amendment to ORS 656.283(7), which bars the admission of evidence at an ALJ hearing that was not presented at the prior stage of administrative review (reconsideration). Rogue Valley Medical Center v. McClearen, 152 Or App 239, 952 P2d 1048, rev den 327 Or 123 (1998). With that change, determining the extent of an accepted disability under Oregon’s workers’ compensation statutes is based primarily on the presentation of written medical reports and other documentary and written submissions. There is no point during the administrative closure process at which a claimant, as a matter of right, can orally submit his or her own testimony and the direct testimony of other witnesses.

Claimant wages a facial attack on that administrative structure, contending that it denies a claimant seeking PTD due process of law under the Fourteenth Amendment to the United States Constitution. Claimant briefly canvasses the closure, reconsideration, and hearing procedures, taking issue with the fact that, in light of the amendment to ORS 656.283(7), there is no point during the administrative process at which a claimant receives a trial-type hearing as part of determining the extent of a compensable disability. Claimant concludes by arguing:

“On balance the claimant’s protected interest in permanent total disability benefits entitles him to a trial-type hearing. Such procedural safeguards were not provided at either the reconsideration or hearing level. Consequently, claimant was denied the procedural due process guarantees of the Fourteenth Amendment.”

Thus, although claimant’s immediate challenge is directed to the limitation on evidence newly imposed by ORS 656.283(7) at the ALJ level, the rationale for the challenge is the failure to provide a trial-type hearing at any point in the PTD determination.

Employer responds that the reconsideration and hearing processes, notwithstanding their evidentiary limitations, adequately protect claimant’s due process interests. Employer points out that claimant had the opportunity to present his full case by written reports and affidavits at the reconsideration level, but that claimant chose not to avail himself fully of that opportunity. Additionally, employer observes that, at the hearing before the ALJ, claimant could have cross-examined the author of any written vocational report, pursuant to ORS 656.287(1), as long as that report was presented at reconsideration. All of those procedures provide, in employer’s view, meaningful opportunities to contest the relevant issues and adequately ensure the reliability of the decision.

The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The question of what process constitutionally is due involves three inquiries: (1) whether the person invoking the due process claim has a constitutionally protected interest in the particular benefit at stake; (2) whether deprivation of that interest involves government action; and (3) whether the procedures used or available are constitutionally adequate. See generally Carr v. SAIF, 65 Or App 110, 117-18, 670 P2d 1037 (1983), rev dismissed 297 Or 83 (1984).

The parties do not dispute that an injured worker has a protected property interest in a determination of PTD status and that denial of that status involves government action. See id. at 118.³ The only issue, then, is the constitutional adequacy of the administrative procedures provided by state law to determine a claimant’s entitlement to PTD benefits. As the United States Supreme Court has observed: “[OJnce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 US 532, 541, 105 S Ct 1487, 84 L Ed 2d 494 (1985) (quoting Morrissey v. Brewer, 408 US 471, 481, 92 S Ct 2593, 33 L Ed 2d 484 (1972)).

Fundamentally, the question posed by a procedural due process challenge is whether, given what is at stake, the procedures used to reach that decision provide sufficient confidence in the decision made. Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976), frames the analysis as a three-part balancing test:

“[F]irst, 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.”

The private interest at stake here is claimant’s entitlement to PTD versus PPD benefits. PTD benefits serve as replacement wages for a worker who, due to the disabling effects of a compensable injury, permanently cannot return to regular and suitable gainful employment. ORS 656.206(2)(a). We recognized in Carr that temporary total disability (TTD) benefits, which compensate an injured worker on a temporary basis for the same inability to work, represent a significant interest to a claimant. Specifically, “[deprivation of compensation, even for a relatively brief period of time, and the resulting possible loss of ability to acquire essential goods and services, may threaten the health and safety of the worker and his dependents.” Carr, 65 Or App at 121. PTD benefits, if awarded, replace TTD benefits when a claimant becomes medically stationaxy. In a case such as this, however, the difference is not between full wage replacement and no wage replacement at all, but rather is between full wage replacement and partial wage replacement, both on a permanent basis. Even so, a claimant’s interest in PTD benefits is significant and a deprivation can have important consequences, as in Carr.⁴

Analysis of the second factor from Mathews — foe risk of an erroneous deprivation and the value of added process — requires first an assessment of the existing claim closure, reconsideration, and hearing processes by which a PTD determination is made, together with the nature of the administrative decision to be made. “Claim closure” is the process for determining the amount of benefits to be awarded on a permanent basis for a claim already accepted as disabling. As a general proposition, claim closure occurs when either the worker or the employer asserts that the worker’s disabling condition has become medically stationary, ORS 656.268, unless the worker is actively engaged in a vocational training program. ORS 656.268(l)(c).

Typically, when PTD status is at issue, a worker will not have returned to work and will not have been released by a physician to return to work. In those circumstances, the insurer must ask DCBS to close the claim, rather than do so itself. See ORS 656.268(2)(a) and (4)(a). Copies of all medical reports and reports of vocational rehabilitation agencies or counselors must be provided to DCBS. ORS 656.268(2)(b). Medical reports must be in writing and may include, among other items: the history of the injury or disease; other pertinent medical history; date of examination; findings on examination; impairment of physical or mental function; restrictions on activities (such as lifting, bending, twisting, sitting, standing, and repetitive use); likelihood of permanent impairment and opinion as to whether the condition is likely to change; and the reason for the opinion. OAR 438-007-0005(2). Vocational reports may be submitted by consultants employed by governmental agencies or insurers and by private vocational consultants. ORS 656.287(1). Those reports may address job opportunities, a claimant’s fitness to perform certain jobs, prevailing wage levels, and other information relating to employability and loss of earning capacity. Id.

Upon receipt of relevant medical and vocational information, DCBS within 10 working days must issue a “determination order” finding the extent of the worker’s permanent disability as a result of the accepted disabling injury. ORS 656.268(5)(a); OAR 436-030-0030(4). DCBS may postpone issuance of the determination order for up to 60 days if it concludes that additional medical or other information is necessary. ORS 656.268(5)(a).

Either party, or both parties, may request reconsideration of the determination order. ORS 656.268(5)(b) and (6)(a). Reconsideration is performed by a “special evaluation appellate unit” within DCBS, which has 18 days to complete the reconsideration. ORS 656.268(6)(d). If the unit requires additional time, it may delay a decision for 60 days to obtain the needed information. Id.

The record on reconsideration consists of documents included at the time of claim closure, together with any additional documents submitted for the reconsideration proceeding. See generally OAR 436-030-0155. On reconsideration, the parties are entitled to correct and to clarify information in the record that is erroneous and may submit medical evidence that should have been, but was not, submitted by the treating physician. ORS 656.268(6)(a); OAR 436-030-0115(1). Although the director of DCBS may order otherwise, a reconsideration proceeding typically “does not include personal appearances by any of the parties to the claim or their representatives.” OAR 436-030-0115(2). However, the parties are entitled to submit documents encompassing factual information and written arguments relevant to the worker’s status at the time of claim closure. OAR 436-030-0115(3). All interested parties must receive copies of those documents. OAR 436-030-0135(1). Information submitted for reconsideration- also “may include, but is not limited to, responses to the documentation and written arguments of the opposing party, written statements and sworn affidavits of the parties.” OAR. 436-030-0115(3). Thus, reconsideration is performed primarily, if not completely, on the basis of a documentary record, together with written arguments of the parties.

If either party is dissatisfied with the order on reconsideration, it may request a hearing under ORS 656.283 before an ALJ. ORS 656.268(6)(g). Except for issues arising out of the reconsideration order, the only issues that may be considered at the hearing are those that were raised and preserved at reconsideration before DCBS. ORS 656.268(8). In certain respects, the hearing is informal. For example, the ALJ is not bound either by common law or statutory rules of evidence, or by technical or formal rules of procedure. ORS 656.283(7). Instead, the hearing is conducted “in any manner that will achieve substantial justice.” Id. After the 1995 amendment to ORS 656.283(7), however, the scope of admissible evidence in a hearing to close a claim is limited significantly by one criterion: the evidence must have been submitted at the reconsideration level. If that criterion is satisfied, either party at the hearing may subpoena the other party’s medical and vocational experts and cross-examine them. If, without good cause, an expert refuses to make himself or herself available for cross-examination, that expert’s report is generally excluded from evidence. OAR 438-007-0005(3).⁵

The substantive decision to be made — whether a claimant is PTD — must be considered against that procedural backdrop. “Permanent total disability” is statutorily defined as “the loss * * * of use or function of any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation.” ORS 656.206(l)(a). “Suitable occupation” refers to those occupations that exist in a theoretically normal labor market, within a reasonable geographic distance, for which a worker has the training or experience and the realistic ability to perform the job duties, with or without rehabilitation. OAR 436-030-0055(l)(b). Before a worker will be determined to be PTD, the worker must prove that the disability is permanent and total. OAR 436-030-0055(3). If a worker retains “some residual functional capacity and is not medically permanently and totally disabled,” the worker must prove, using “competent written vocational” evidence, that he or she is unable regularly to perform work at a gainful and suitable occupation. OAR 436-030-0055(4). If the worker has not made reasonable work search efforts, the worker’s burden includes showing the futility of seeking work, again with “competent written vocational” evidence. Id. “Competent written vocational” evidence consists only of the opinions of persons fully certified by the State of Oregon to render vocational services and does not include opinions by claimants, physicians, or others not certified. Id.

Several important observations follow from the description of the procedures relevant to PTD status and the standards for the decision to be made. First, PTD status is an intensively medical and vocational issue, one that lends itself particularly to expert opinion. Second, a claimant seeking to establish PTD status is entitled to present information from every relevant source at the reconsideration stage. That is, the claimant may present the relevant opinions of experts, lay witnesses, and himself or herself on issues relating to the extent of impairment and loss of earning capacity. Third, and finally, the procedural limitations that attend to the PTD decision are ones of form, not substance. The procedures call for exploration of the medical and vocational issues through reports, affidavits, written argument, and written response. Unlike a traditional trial-type hearing, the process does not involve live testimony of witnesses, with the exception of cross-examination of vocational and medical experts on the substance of their reports and opinions.

Claimant’s primary contention is directed to the second Mathews factor — i.e., the contention that the reconsideration process produces a substantial risk of erroneous PTD determinations. Claimant argues that the “[limitations on what can be considered for reconsideration virtually preclude claimant from thoroughly presenting, rebutting or cross-examining evidence.” In this particular case, claimant declined the opportunity to present his case fully at reconsideration, where he could have offered his own testimony, as well as that of his family physician and a private vocational counselor, in the form of affidavits, reports, or other documentary evidence. As we understand claimant’s position, his point is that, as a matter of due process, he is entitled to forgo presenting written evidence at the reconsideration level and then insist on presenting it for the first time through live witnesses before the ALJ.

As a threshold matter, we fail to understand how the limitations on the form of evidentiary submissions at reconsideration can excuse presentation of that evidence at that level. Even assuming that claimant is correct and that he is entitled, at the hearing, to produce witnesses for direct and cross-examination before the decisionmaker, that does not mean that he may deliberately bypass written presentation of the evidence to DCBS for consideration in making its administrative decision on reconsideration. The statutory scheme reflects a legislative policy of requiring the parties to come forward with all issues that they intend to raise and all information that bears on those issues for meaningful consideration by the agency charged with the administrative decision. See ORS 656.268(7)(g) (no post-reconsideration evidence of medical impairment is admissible); ORS 656.268(8) (no hearing shall be held on any issue not raised and preserved before DCBS at reconsideration); ORS 656.283(7) (issues regarding claim closure cannot be raised at hearing if not raised before DCBS; evidence on issues not presented at reconsideration is not admissible at hearing).⁶ Claimant cites no authority, nor are we aware of any, for the proposition that a person seeking an administrative benefit is entitled to withhold information bearing on the claim at lower administrative levels on the theory that later levels of administrative review either will or must involve live testimony rather than written submissions.

In all events, we disagree that due process requires more procedural protection than the administrative structure for reconsideration and hearing provides.⁷ As the United States Supreme Court has emphasized, due process “ ‘is not a technical conception with a fixed content unrelated to time, place and circumstances,’ ” Cafeteria Workers v. McElroy, 367 US 886, 895, 81 S Ct 1743, 6 L Ed 2d 1230 (1961) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 US 123, 162, 163, 71 S Ct 624, 95 L Ed 817 (1951) (Frankfurter, J., concurring)), but instead flexibly “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 US 471, 481, 92 S Ct 2593, 33 L Ed 2d 484 (1972). Claimant’s challenge flows from his predicate assertion that the procedures afforded him do not provide a “trial type hearing on adjudicative facts.” The argument assumes, incorrectly, that adjudicative procedures are an all- or-nothing proposition — that is, that they either are a mere opportunity to comment and be heard or are full-blown evidentiary contests, complete with direct and cross-examination.

To the contrary, as the United States Supreme Court has cautioned, in reiterating what it referred to as the “wise admonishment” of Justice Frankfurter, “differences in the origin and function of administrative agencies ‘preclude wholesale transplantation of the rules of procedure, trial and review which have evolved from the history and experience of courts.’ ” Mathews, 424 US at 348 (quoting FCC v. Pottsville Broadcasting Co., 309 US 134, 143, 60 S Ct 437, 84 L Ed 2d 656 (1940)). The fact that the transplant is not wholesale does not mean that the process is not adjudicative or adversarial. Nor does it mean that the decision is necessarily less reliable: “The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances.” Id. In short, due process is not a one-size-fits-all principle that requires full-blown, trial-type procedures wherever anything more than a mere opportunity for comment is needed.

Although the procedures for reconsideration and ALJ review do not model judicial trial procedures, they offer a meaningful process for adjudicating facts contested by the parties. It is worth emphasizing that, at the point of closure, the compensability of the injury and the fact that it is permanently disabling have been established. Only the extent of the disability remains to be determined. DCBS’s initial extent determination is made on the basis of medical and vocational reports that, by the time of claim closure, frequently will have involved many years’ worth of professional assessment and treatment of a claimant’s work-related injury and accompanying disability.⁸ At the reconsideration phase, a claimant has the opportunity to take issue with the initial determination order and to submit written documentation, both medical and vocational, to correct and clarify the record. The employer may do the same. A claimant also can present lay testimony by affidavit. Both parties are entitled to present written argument and to respond in writing to each other’s submissions. Thus, the process is adversarial and permits affirmative proofs, counter proofs, and written argumentation. As the board accurately observed:

“Taken together, the reconsideration procedures enabled claimant to present in writing the lay, medical and vocational evidence supporting his entitlement to PTD benefits. That is, claimant had the opportunity to present essentially the same evidence on reconsideration [that] he sought to present at hearing, albeit in somewhat different form. The substance of any lay and/or expert witnesses’ testimonies could have been presented by sworn affidavits at the time of reconsideration. In this regard, we reject claimant’s argument that oral testimony was necessary for him to establish he was willing to seek employment and made reasonable efforts to obtain such employment; that evidence could have been presented by affidavit at reconsideration. The evidentiary limitation in amended ORS 656.283(7) is on the form and timing, not the substance, of the evidence relevant to the PTD issue.”

In Mathews, the Supreme Court was confronted with a nearly identical constitutional challenge in the context of social security disability benefits, where the benefit decision turned on whether a potential recipient was “disabled.” 424 US at 343-45. The court rejected the idea that medical evidence and evaluation could be meaningfully presented and tested only through direct and cross-examination of live witnesses, concluding instead that written submissions by physicians were at least as reliable, if not more so.⁹ The Court then acknowledged that the question of disability does not always turn solely on a medical diagnosis, but also frequently depends on nonmedical factors such as age, education, work experience, and the ability to find gainful employment. On the issue of employability, the Court similarly concluded that the live examination of witnesses would not meaningfully aid the decision:

“The value of an evidentiary hearing, or even a limited oral presentation, to an accurate presentation of those factors to the decisionmaker does not appear substantial. Similarly, resolution of the inquiry as to the types of employment opportunities that exist in the national economy for a physically impaired worker with a particular set of skills would not necessarily be advanced by an evidentiary hearing. * * * The statistical information relevant to this judgment is more amenable to written than to oral presentation.”

Id. at 344 n 28 (citation omitted).

The same conclusion follows here. The “essence” of due process is to provide a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it. Id. at 348. Those values are amply served by the procedures in place for claim closure. Claimant’s due process challenge is to the form of claimant’s evidence (i.e., affidavit versus oral examination), not whether the decisionmaker has access to whatever relevant information the claimant wants to provide. Because the disability determination is directly driven by medical and vocational inquiries, an evidentiary hearing with live witnesses would not significantly advance the decision, nor does its absence subject the reliability of the outcome to an unacceptable risk of error. ■

Claimant argues that Mathews is distinguishable, because there the Court was addressing the procedures followed for an initial determination of social security benefits in the context of a scheme that gave the applicant a later, more trial-type adversarial hearing. We acknowledge that difference and that the decision in Mathews therefore is not controlling, despite its close parallels to this case. But we cannot so readily discount the substance of the Court’s discussion, which emphasized the minimal and incremental benefit of live witness testimony given the nature of the decision to be made. As the Supreme Court has cautioned, “[p]rocess is not an end in itself.” Olim v. Wakinekona, 461 US 238, 250, 103 S Ct 1741, 75 L Ed 2d 813 (1983). If the process sought does not meaningfully advance the decision to be made — and we conclude that it would not here — the Due Process Clause does not require it.¹⁰

Claimant finally contends that issues peculiar to some PTD determinations, such as employability and willingness to work, place a claimant’s credibility uniquely at issue and require, as a constitutional matter, that a claimant be permitted to testily. But see Califano v. Yamasaki, 442 US 682, 696-97, 99 S Ct 2545, 61 L Ed 2d 176 (1979).¹¹ The dissenting opinions agree, urging that in so-called “odd lot” cases, a claimant may remain capable of performing some kind of work, but be totally disabled because a combination of medical and nonmedical factors forecloses him or her from gainful employment in a realistic job market. The dissenting opinions urge that in those cases, a claimant’s credibility takes on a special role. As a result, nothing less than live witnesses, complete with direct and cross-examination, will do. See 159 Or App at 252-53 (De Muniz, J., dissenting); 159 Or App at 259 (Wollheim, J., dissenting).

In responding to that contention, the starting point is to recognize that so-called “odd lot” cases are a subclass of the universe of cases decided pursuant to the procedures that claimant challenges. Claimant here has made a facial challenge to the statute. The crux of that challenge is that a trial-type hearing is required at the hearing level for all closure determinations, including those involving only medical issues.¹² Unlike the inquiry in, for example, an unemployment case,¹³ credibility is not directly at stake in PTD determinations generally, at least not in any demonstrable way. Before claim closure, the worker already has been determined to be compensably disabled. The question at closure is only the extent of that compensable disability. Thus, a PTD determination hinges largely on medical evidence concerning the degree of disability and on vocational evidence regarding the nature of the work that can be performed, given medical limitations. That fact is underscored by the aggressive program of vocational rehabilitation offered to injured workers, using professionals specially certified by DCBS, and involving vocational evaluation, physical capabilities evaluation, general vocational assistance, and help in directly obtaining employment and training. See generally ORS 656.340.

Even as to “odd lot” cases, however, neither claimant nor the dissenting opinions satisfactorily demonstrate the extent to which the PTD determination turns on a claimant’s credibility or that the credibility assessment cannot be made reliably without live testimony. To make the case for the importance of live testimony, the argument must be not only that credibility is central to the decision, but that a demeanor-based credibility determination is essential to the integrity of the determination. To be sure, personal demeanor provides insight into credibility, especially when the dispute involves competing versions of historical facts, such as two witnesses’ differing memories of an event.¹⁴ That reality leads appellate courts generally to defer on credibility matters to factfinders who had the opportunity to “see and hear” the witness testify. E.g., Good Samaritan Hospital v. Employment Div., 104 Or App 241, 243, 799 P2d 1141 (1990). However, as Judge Richardson aptly observed some years back, demeanor is only one of many considerations that may, in a given case, bear on the weight to give to a witness’s statements; meaningful credibility assessments can be and often are made on the basis of written evidence alone:

“[I]f the conclusion is that [a decisionmaker] cannot make credibility findings because he has not observed the witnesses testifying, the simple answer is that credibility (more properly weight) is determinable from a number of factors other than witness demeanor. The credibility, i.e., weight, that attaches to testimony can be determined in terms of the inherent probability, or improbability of the testimony, the possible internal inconsistencies, the fact it is or is not corroborated, that it is contradicted by other testimony or evidence and finally that human experience demonstrates it is logically incredible.”

Lewis and Clark College v. Bureau of Labor, 43 Or App 245, 256, 602 P2d 1161 (1979), rev den 288 Or 667 (1980) (Richardson, J., concurring in part, dissenting in part) (responding to the suggestion of Buttler, J., concurring, that commissioner improperly assessed credibility of witnesses in her review of record of contested case hearing).

Although claimant and the dissenting opinions assert that credibility — presumably, demeanor-based credibility — is “crucial” to assessing a claimant’s willingness to work, saying that does not make it so. An examination of the relevant inquiry, as outlined by the statutes and administrative rules, does not bear out the point. That examination suggests, instead, that the reports, experience, and opinions of medical and vocational professionals are far more fundamental to determining the extent of a compensable disability. Nor does case law in the area reflect that demeanor-based credibility assessments are the centerpiece of most PTD determinations. New cases suggest that the PTD determination typically turns on credibility generally. No case yet has been cited, and we have not found one, where the claimant’s demeanor was noted as an important factor to the PTD determination. Were demeanor assessments as crucial to the overall PTD determination as claimant and the dissents suggest, the many years of litigation in this area would reveal as much. The reported cases suggest just the opposite, however.¹⁵ In all events, the cases do not demonstrate that demeanor-based credibility assessments are important in the “generality of cases,” which is the due process standard that must be satisfied. Mathews, 424 US at 344 (“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”).

Nevertheless, one of the dissenting opinions urges, with eloquence and empassioned conviction, that injured workers simply must have the opportunity at some point to “look into the face of an impartial adjudicator and tell their stories.” 159 Or App at 262 (Wollheim, J., dissenting). The dissent offers no particular clarification of the substance of what is to be related or any precise explanation of why a live recounting is so important. Without that, the argument reduces to one urging process for the sake of process, not for the sake of reducing the risk of error. Lost in the dissent’s overview of more than eight decades of changes in the workers’ compensation system is an acknowledgment that the inquiry in a PTD determination is a narrow one. Fault is no longer at issue in compensating injured workers. For that matter, even compensability and disability are settled at the point of closing and rating an accepted claim. Only the extent of disability remains to be determined. In an odd-lot case, a claimant may be able to relate facts relevant to whether the claimant has engaged in a search for suitable work or, if not, why that search would be futile. It is not obvious, however, why facts of that nature cannot be communicated effectively though affidavits and written documentation. Nor does the dissent supply the answer. The dissent’s plea for “simple justice” through the “telling of one’s story” is appealing for its poetic imagery. But it treats process as “an end in itself,” when due process analysis requires more. See Olim, 461 US at 250.

Finally, concerning the third Mathews factor — the burden imposed on the government by additional process— we examine the government’s interest in the fair and efficient administration of the workers’ compensation scheme, which we have recognized as significant. Carr, 65 Or App at 123. Claimant argues that because he is entitled to some form of evidentiary hearing before an AL J, his ability to testify orally and to cross-examine witnesses generally as a matter of right would “not substantially increase either the administrative burden or fiscal impact on the government.” Even if the costs of allowing claimant to present live witnesses would be minimal, we are not convinced that the added procedural benefit is required, given our conclusion that an oral presentation of direct testimony, or a general right of cross-examination, is not of substantially greater value than proof and counter-proof through written reports and affidavits.¹⁶ More to the point, we do not agree that the costs are as de minimis as claimant suggests. Evidentiary hearings with the personal appearance of witnesses involve scheduling burdens and consume time and resources. The exact financial and efficiency costs may be difficult to estimate. 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.” Mathews, 424 US at 347. Likewise, here, the burden would be real.

Judge De Muniz’s dissenting opinion asserts that there has never been a significant complaint about the cost of providing trial-type hearings at the ALJ level, but it cites nothing to support that statement. 159 Or App at 256 (De Muniz, J., dissenting). Actually, neither the dissent nor we know what the budget impact of those hearings has been or the extent to which they have been a fiscal concern. But more important, the cost to be considered is not just cost at the ALJ level. The legislature restricted evidence at the ALJ level to ensure that issues be raised before DCBS to give it the full benefit of the parties’ proofs and arguments as part of its administrative review. See n 6 below. The governmental goals, thus, include administrative accuracy, efficiency, and reduced cost, by removing the incentive to seek an AU hearing for the opportunity to try the case anew on the basis of new and different evidence. The goal also is to preserve the integrity of the process, both by ensuring a more complete process at the DCBS level and by not treating AU “review” as an opportunity to blindside parties with changed proofs. Those interests are both legitimate and weighty, even if they cannot be measured easily in dollar amounts and do not reflect concerns about dollars alone.

Given the procedures in place — which allow for wide-ranging documentary proofs, counter proofs, and other responsive submissions — and balancing the low value of oral testimony and the burden of trial-type administrative process, we conclude that due process principles do not entitle a claimant to present evidence through in-hearing testimony rather than through written reports and sworn affidavits. Claimant received constitutionally adequate procedural protections under the existing scheme.

Affirmed.

1 In rating permanent disability cases, temporary rules may be adopted in individual cases where the director finds “that the worker’s impairment is not adequately addressed in the disability standards.” OAR 436-035-0500. In this instance, on reconsideration, the disability rating changed from 14 to 29 percent unscheduled PPD, with an impairment value of 8, to account for the disabling effects of claimant’s episodic jaw pain.

2 ORS 656.283(7) was amended pursuant to Senate Bill 369, Oregon Laws 1995, chapter 332, section 34, effective June 7, 1995, to provide:

“Except as otherwise provided in this section * the Administrative Law Judge is not bound by common law or statutory rules of evidenceM * * * Evaluation of the worker’s disability by the Administrative Law Judge shall be as of the date of issuance of the reconsideration order pursuant to ORS 656.268. Any finding of fact regarding the worker’s impairment must be established by medical evidence that is supported by objective findings. * * * Evidence on an issue regarding a determination order that was not submitted at the reconsideration required by ORS 656.268 is not admissible at hearingl.]”

(Emphasis added.)

3 Our conclusions in Carr that workers’ compensation benefits involve government action and protected property interests have been drawn into doubt by the United States Supreme Court’s recent opinion in American Mfrs. Mut. Ins. Co. v. Sullivan, _US_, 119 S Ct 977, 143 L Ed 2d 130(1999). However, the parties in this case have assumed Carr’s correctness and have not raised and briefed those points. Given our rejection of the due process challenge, we need not consider Sullivan’s implications for this case.

4 Judge De Muniz’s dissent characterizes the potential loss of PTD benefits as “much more grievous” and deserving of “significantly more procedural protection” than the loss of TTD benefits in Carr. 159 Or App at 254 (De Muniz, J., dissenting) With all respect, at some point the argument invites judicial hair-splitting, because the gradations in seriousness cannot be assessed or quantified meaningfully. Comparing the inquiry here to that in Carr illustrates the problem. In Carr, the claimant risked the loss of an entire source of income, albeit for a finite time. Moreover, the TTD decision, once final, was not subject to modification. Here, in contrast, the issue is whether claimant’s accepted disabling condition merits full wage replacement or partial wage replacement; that determination, while nominally “permanent,” is subject to later modification under some circumstances. See, e.g., ORS 656.273 (worsened conditions); ORS 656.278(5) (authority of insurer to reopen claim to provide greater benefits); ORS 656.206(5) (PTD awards must be reviewed every two years). Because the issue here is a reduced benefit, not a complete denial of one, we are unwilling to consider claimant’s interest as “much more grievous” than the claimant’s interest in Carr. See Henry J. Friendly, Some Kind of Hearing, 123 U Pa L Rev 1267,1298 (1975) (suggesting that suspension of benefits should be treated as more serious than their reduction). But neither do we attempt to quantify the unquantifiable by measuring in pounds and ounces how much each of these related interests weighs on the due process scale.

5 Judge Wollheim’s dissent takes issue with our observations about the parties’ ability under the rule to cross-examine experts on the contents of medical reports, concluding that the rule is invalid because it conflicts with the evidentiary limitations of ORS 656.283(7). 159 Or App at 258 (Wollheim, J., dissenting). Our analysis does not depend on that feature of the hearing process because, as we later explain, the issues lend themselves well to proofs and counter proofs through expert reports and written documentation. Nevertheless, we describe the terms of the rule because, as it stands, the rule is part of the available process. As a general proposition, an administrative rule remains an effective statement of existing practice or policy until it is either judicially invalidated or repealed through proper APA procedures. See Burke v. Children’s Services Division, 288 Or 533, 538, 607 P2d 141 (1980). We are not prepared sua sponte to declare it invalid, where, as here, the rule’s validity has not been drawn into question. Nor do we share the dissent’s confidence that the rule is fatally inconsistent with the statute. Legislative authorization for the rule at least arguably resides in ORS 656.283(7), which authorizes the ALJ to conduct the hearing “in any manner that will achieve substantial justice.” We have previously concluded that permitting cross-examination of vocational experts at hearing, as the legislature expressly has done, is not inconsistent with the statute’s evidentiary limitations. McClearen, 152 Or App at 244-45. The same, at least arguably, may be said of a rule permitting cross-examination of medical experts at hearing, if the expert’s report was submitted at reconsideration.

6 Testimony in support of the 1995 amendments to ORS 656.283(7) is replete with expressions of concern that “the issues be raised at the lowest possible level for resolution” and that the record under review “be the same at all levels of appeal.” See, e.g., Tape Recording, House Committee on Labor, SB 369, March 8, 1995, Tape 48A (testimony of Virlena Crosely, Workers’ Compensation Division Administrator). See generally In re Ray, 48 Van Natta 325 (1996) (reciting at greater length the legislative history of the 1995 amendment to ORS 656.283(7)).

7 We reach the constitutional question, as did the ALJ and the board, notwithstanding claimant’s failure to present the proffered testimony in documentary form at reconsideration. We do so because the 1995 amendments to ORS 656.283(7) took effect after claimant requested reconsideration and the reconsideration process had commenced. At hearing, claimant challenged whether the requirement of presenting the evidence at reconsideration could be applied retroactively to him. He abandoned that challenge at the board level and has abandoned it before this court. Thus, that issue is not before us. But because the statute was not in effect when reconsideration commenced, we do not resolve this case on the narrow ground that claimant was obligated to present the proffered evidence in documentary form at reconsideration before he may, through live testimony or otherwise, insist on presenting it at the ALJ hearing.

8 By way of illustration, the record before DCBS in this case contained nearly 13 years’ worth of medical, vocational, and psychiatric assessments relating to claimant’s disability.

9 The Court concluded:

‘TT]he decision whether to discontinue disability benefits will turn, in most cases, upon ‘routine, standard, and unbiased medical reports by physician specialists,’ Richardson v. Perales, [402 US 389, 404, 91 S Ct 1420, 28 L Ed 2d 842 (1971)], concerning a subject whom they have personally examined. In Richardson the Court recognized the ‘reliability and probative worth of written medical reports,’ emphasizing that while there may be ‘professional disagreement with the medical conclusions’ the ‘specter of questionable credibility and veracity is not present.’ [Id. at 405], 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. The potential value of an evidentiary hearing, or even oral presentation to the decisionmaker, is substantially less in this context than in [the context of welfare benefits].”

Mathews, 424 US at 343-45 (footnote omitted).

10 To illustrate the importance of cross-examination, Judge De Muniz’s dissent urges that claimant should have been permitted to cross-examine witnesses about the surveillance video of defendant’s activities. 159 Or App at 255 (De Muniz, J., dissenting). Due process procedures are shaped by the risk of error in the general case to be decided, not by the value of the procedure in a particular case. See post 159 Or App at 248. Even so, the dissent’s point is not well taken. Claimant did not share the dissent’s concerns about the videotape and never suggested by his offer of proof that he wanted or needed to examine anyone about it. Nor does claimant make that argument on appeal.

11 Even if credibility were more of a key to the PTD determination, Califano suggests that the procedures provided would be ample. In Califano, the Supreme Court distinguished between the procedures required for recoupment of social security payments under different provisions of the social security statutes. Where the recoupment is based on matters of computation (even the recipient’s own errors), the court held that no oral hearing whatsoever is required, because credibility is involved only rarely in such cases. Califano, 442 US at 696. On the other hand, where a recipient sought to have the recoupment waived on the basis of the recipient’s lack of “fault,” the Court determined that credibility is central to the waiver, and therefore some form of oral hearing is required. Id. at 697. Significantly, the oral hearing the Supreme Court envisioned was a far cry from the trial-type procedures that claimant demands here. The Court approved administrative rules providing only for “ ‘a short personal conference with an impartial employee of the Social Security Administration.’ ” Id. (quoting from the respondent’s brief). See generally Gray Panthers v. Schweiker, 716 F2d 23 (DC Cir 1983) (where credibility was central to administrative decision, oral hearing but not full trial procedures required). Here, a claimant is present and receives an oral hearing before the decisionmaker.

12 Indeed, that is the only challenge that claimant preserved. At the hearing, claimant sought to introduce testimony of direct witnesses (himself, his personal physician, and a vocational counselor) “to substantiate claimant’s case.” He made no offer of proof as to what those witnesses would sáy. Claimant’s request to call witnesses and present direct testimony at hearing was adequate to preserve the issue of whether he is entitled, as a legal matter, to a “trial-type” hearing. See State v. Olmstead, 310 Or 455, 461, 800 P2d 277 (1990) (where entire class of evidence is excluded as a legal matter, party need not make a specific offer of proof to preserve argument of legal entitlement to have decision based on such evidence). But if the argument is that particular substance or content of the testimony requires the evidentiary limitations of the statute to give way, no such claim has been presented or preserved in this case.

13 See, e.g., Thompson v. Employment Division, 82 Or App 75, 727 P2d 158 (1986) (remanding to administrative factfinder for credibility findings on availability for work because the issue was central to the decision to be made).

14 Where credibility is concerned, the value of demeanor evidence may be overrated. Some empirical studies suggest that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments. See generally Olin Wellborn, Demeanor, 76 Cornell L Rev 1075 (1991). For present purposes, we do not need to take sides in that debate. It should be enough to observe that classic credibility contests are those in which two individuals relate competing accounts of an historical event and there is no record of the event except their memories.

15 Of the large number of reported PTD cases, an occasional one may turn on the injured worker’s willingness to seek suitable work. E.g., Sinclair v. Champion International Corp., 117 Or App 515, 844 P2d 933 (1992); Janish v. Lane Co. S-D #45, 106 Or App 218, 806 P2d 1164 (1991); SAIF v. Beswick, 104 Or App 494, 802 P2d 82 (1990); SAIF v. Orr, 101 Or App 612, 792 P2d 454 (1990); Gornick v. SAIF, 92 Or App 303, 758 P2d 401 (1988). But the reported cases do not suggest that a demeanor-based assessment of a claimant’s credibility has often or generally been needed. To the contrary, judging from our reported decisions of the last several years, of the few cases in which willingness to work was even a central issue, the determination generally was based on objective information as to a claimant’s age, physical limitations, education level, and the nature of the job market E.g., Gornick, 92 Or App at 308. Similarly, vocational, medical, and psychiatric evidence is often determinative, even when the issue turns on a claimant’s motivation and attitude. E.g., Sinclair, 117 Or App at 517-18. Cases in which a claimant’s credibility and veracity are the be all and end all of the issue appear to be rare at best; indeed, neither claimant nor the dissents cite a single case in which a claimant’s credibility was determinative.

16 It is worth noting, again, that the statutes and rules currently permit parties to cross-examine experts who have submitted written medical and vocational reports. Beyond that, as to a general right of cross-examination, Judge Friendly’s observations are apt:

‘T0]ne must query [the relative value of cross-examinationl to the thousands of hearings on welfare, social security benefits, housing, prison discipline, education, and the like which are now held every month — not to speak of hearings on recondite scientific or economic subjects. In many such cases the main effect of cross-examination is delay — an argument not really answered, as any trial judge will confirm, by the easy suggestion that the hearing officer can curtail cross-examination. Lawyers, including those who have gone on the bench, have a vivid recall of the few instances where they destroyed a dishonest witness on cross-examination and forget those where their cross-examination confused an honest one or was ineffective or worse — not to speak of the many cases when they had the good judgment to say ‘No questions.’ ”

Friendly, U Pa L Rev at 1284-85.