(1) With respect to
a claim for workers' compensation benefits and as used in this section,
references to the insurer and the claimant include persons acting on their
behalf, and references to the insurer include the self-insured employer, claims
processing agents and assigned claims processing agents for non-complying
(2) Documents pertaining
to claims are obtained by mailing or delivering a copy of the Request for
Hearing, or a written demand accompanied by an attorney retention agreement or
medical information release, to the insurer. Within 15 days of said mailing or
delivering, the insurer shall furnish the claimant and other insurers, without
cost, originals or legible copies of all medical and vocational reports and
other documents pertaining to the claim(s) as specified below.
(3) Upon written demand by the insurer, the
claimant shall within 15 days of the mailing or delivering of the demand,
furnish to the insurer, without cost, originals or legible copies of all
medical and vocational reports and other documents pertaining to the claim(s)
as specified below, which the claimant did not receive from the insurer (or
self-insured employer) making the demand. In cases involving multiple insurers,
an insurer shall seek discovery in accordance with section (9) of this
(4) Documents acquired after
the initial exchanges shall be provided to the insurer(s) and the claimant
within seven days after the disclosing party's receipt of the
For the purpose of
this rule, "documents pertaining to the claim(s)" or any variation thereof
means documents and recordings, whether written or electronic or in any other
form, which consist of the following items applicable to the workers'
(a) Medical and vocational
reports, including any correspondence to and from the medical and vocational
experts who provide the reports or who agree to testify on behalf of the party
Official forms and notices required by ORS Chapter 656, the Workers'
Compensation Division or the Workers' Compensation Board, as they relate to the
statements, including a party's statement, and investigative
(d) Correspondence to
and from the Workers' Compensation Division and the Workers' Compensation
(e) Upon specific
request, records of all compensation paid, payroll records, records or
statements of wages earned by the claimant, and copies of bills from medical
and vocational service providers rendering treatment or services to the
(6) After the
disclosure required by this rule, either the claimant or the insurer may
request further specific discovery of other factual documents relevant and
material to an issue raised by the Request for Hearing or the Response thereto,
or any other issue which thereafter arises and is subject to the jurisdiction
of the Workers' Compensation Board.
Notwithstanding any other provision of
this section, the following documents pertaining to the claim(s) are not
(a) Material protected under the
attorney/client privilege as defined in Oregon Rules of Evidence ORS
40.225 Rule 503;
(b) Material which is the work product of any
attorney, except that correspondence and any inclusions sent to a medical or
vocational expert who writes a report that is otherwise subject to disclosure
under these rules or who agrees to testify at the request of the corresponding
party shall be discoverable under subsection (5)(a) of this rule;
(c) Material reflecting the mental
impressions, case value or merit, plans or thought processes of the claimant or
(d) Material protected by
ORS 656.260; and
Material protected from disclosure under
It is the express policy of the Board to
promote the full and complete discovery of all relevant facts and expert
opinion bearing on a claim being litigated before the Hearings Division,
consistent with the right of each party to due process of law. Failure to
comply with this rule, if found to be unreasonable or unjustified, may result
in the imposition of penalties and attorney fees, exclusion of evidence,
continuance of a hearing (subject to OAR 438-006-0091
), and/or dismissal of a
request for hearing.
(9) When a new
party is joined into existing litigation, the disclosure of discoverable
documents and the exhibit list shall be made available to the new party by the
insurer with the lowest WCB case number. This disclosure shall be made as soon
as reasonable but no later than 15 days from the insurer's receipt of notice of
the joinder of the new party.
Any dispute under this rule regarding whether something is discoverable, in
whole or in part, will be resolved by the assigned Administrative Law Judge or
the designee of the Presiding Administrative Law Judge.
Or. Admin. R.
WCB 1-1984, f. 4-5-84, ef.
5-1-84; Suspended by WCB 3-1987(Temp), f. 8-27-87, ef. 9-15-87; WCB 5-1987, f.
12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 2-1995, f.
11-13-95, cert. ef. 1-1-96; WCB 2-1997, f. 12-12-97, cert. ef. 3-1-98; WCB
1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 1-2012, f. 8-22-12, cert. ef.
Stat. Auth.: ORS
Stats. Implemented: ORS