dissenting.
In 1995, the Oregon Legislature amended ORS 656.283(7) to limit the evidence that may be considered by an administrative law judge (ALJ) to evidence submitted at the reconsideration phase of the claim determination process. Claimant contends that the amended statute denies due process to workers seeking permanent total disability (PTD) benefits because there is no meaningful opportunity, at any point in the claim determination process, to present live testimony or rebuttal evidence or to cross-examine witnesses. The majority appears to hold that due process is satisfied because, in its view, PTD determinations turn mainly on medical facts and that written submissions generally used at the reconsideration phase are a meaningful way to present such facts. However, workers seeking PTD benefits also have the additional burden of proving a willingness to work and that they have made a reasonable attempt to obtain employment. The burden of proof that a worker must carry on those issues will, for the most part, turn on an evaluation of the worker’s credibility. In the context of the workers’ compensation system, that kind of evaluation should be made only in an adjudicative hearing. Additionally, claimant here was denied PTD benefits, in part, on the basis of medical reports that relied on a surveillance video. In my view, written submissions by a worker at the reconsideration phase are not a meaningful or sufficient way for a worker to dispute or neutralize the effect of that kind of nonmedical hearsay. I dissent because denying injured workers an adjudicative hearing in which an ALJ evaluates all of the evidence, including the worker’s demeanor and veracity, violates the worker’s right to due process of law.
*253The commonly stated fundamental requirements of due process are notice and the opportunity to be heard at a meaningful time and in a meaningful manner. State ex rel Juv. Dept. v. Geist, 310 Or 176, 189-90, 796 P2d 1193 (1990). The question here is whether evidence, generally in written form at the reconsideration phase, allows a worker to be heard in a meaningful manner. As the majority correctly states, the framework for answering that question is the balancing test formulated in Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976). On one side of the balance is the value of the private interest at stake and the probability that additional safeguards will reduce the risk of an erroneous deprivation of that interest. On the other side is the government’s interest and the cost of the additional safeguards proposed. See State ex rel Schrunk v. Metz, 125 Or App 405, 416-18, 867 P2d 503 (1993) (deciding that prompt post-seizure hearings are needed to protect an ownership interest in commercial property).
The majority’s application of the Mathews test is technically correct. The majority finds that claimant has a protected interest in the determination of PTD benefits but that the existing procedures restricting evidence to that considered at the reconsideration phase present a low risk that claimant will be deprived erroneously of that interest. It then balances those factors against the government’s interest in the fair administration of disability benefits and the cost of additional safeguards, which it characterizes as not insubstantial. My disagreement with the majority centers on the weight given to the first two factors. In my view, the majority undervalues both the significance of claimant’s interest in PTD benefits and the risk of an erroneous deprivation under the existing procedures.
As to the first factor, the majority determines that the value of claimant’s interest in PTD benefits is similar to a protected interest in uninterrupted temporary total disability (TTD) benefits because a denial of either would threaten claimants’ health and safety. Carr v. SAIF, 65 Or App 110, 120, 124, 670 P2d 1037 (1983), rev dismissed 297 Or 83 *254(1984).1 The majority then suggests that the significance of claimant’s interest is diminished by his receipt of a PPD award. I disagree with the majority’s reasoning. The significance of claimant’s interest in a PTD determination is unrelated to his PPD award2 and, instead, should be measured by the extent to which a failure of due process would condemn claimant to suffer grievous loss. Goldberg v. Kelly, 397 US 254, 262-63, 90 S Ct 1011, 25 L Ed 2d 287 (1970).
The comparative value of the interests at stake in Carr and here are apparent in the plain meaning of the words temporary and permanent. A temporary interruption of TTD benefits for a worker who may return to work, although significant, is less important than a permanent denial of PTD benefits for a worker who may never return to work. In Carr, the Department was required to provide the claimant with notice, the basis for a suspension of benefits, and an opportunity to respond either orally or in writing. 65 Or App at 124. Minimal due process was required in Carr because the claimant faced only a maximum interruption in benefits of six weeks. Id. at 120. However, a permanent denial of PTD benefits, which is the case here, is a much more grievous loss and, accordingly, deserves significantly more procedural protection. The majority fails to appreciate the magnitude of the interest at stake here and, thus, fails to accord claimant’s interest sufficient weight in the balancing process.
As to the risk that a worker will be deprived erroneously of a protected interest, the majority reasons that the process due a worker should be shaped by the nature of the determination to be made. Accordingly, the majority reasons that the safeguards of live testimony, rebuttal evidence, and cross-examination are unnecessary because PTD determinations turn primarily on medical and vocational facts and that *255written reports submitted as part of the reconsideration process are a meaningful way to present those kinds of facts. I do not agree with the majority’s characterization of PTD determinations as sterile proceedings devoid of emotional content in which credibility determinations are not crucial to the fair determination of a claim. ORS 656.206(3) requires a worker to prove not only permanent total disability (medical facts) but also a willingness to seek regular gainful employment and that reasonable, though unsuccessful, efforts have been made to attain such employment. In the absence of that evidence, a claimant’s case for PTD benefits cannot succeed. Carrying the burden of proof on the latter two requirements will depend, for the most part, on a calculation of the worker’s veracity.
In Mathews, the Supreme Court stated that, where credibility and veracity are important to the generality of cases, “ ‘written submissions are a wholly unsatisfactory basis for decision.’ ” 424 US at 344 (quoting Goldberg, 397 US at 269). We should not ignore that admonition here. Only by allowing the ALJ to observe a claimant’s credibility and veracity first hand and on the record is there an assurance of reliability necessary to satisfy the dictates of due process.
The risk of an erroneous deprivation of benefits is also heightened by the evidence used in this case. As noted above, the majority asserts that PTD determinations turn primarily on medical facts. Yet, here, the Department’s finding of residual functional capacity in the reconsideration proceeding is based on medical reports prepared by doctors who viewed a surveillance video of claimant — a form of nonmedical hearsay. Libett v. Roseburg Forest Products, 130 Or App 50, 52, 880 P2d 935 (1994), rev den 320 Or 507 (1995). Concededly, the ALJ would also not be bound by the rules of evidence under ORS 656.283(7). However, the Department’s reliance on the doctors’ review of nonmedical hearsay is too far attenuated from claimant’s constitutional right to confront witnesses against him. The result is a substantial risk of an erroneous deprivation of claimant’s protected interest. The opportunity to cross-examine witnesses on the record would allow claimant to establish critical facts such as when the video was made, how it was edited, who appears in the video, and the context of the activity filmed — facts claimant *256could not have meaningfully challenged at the time of reconsideration.
The remaining task is to balance the risk that a claimant will be deprived erroneously of a significant protected interest in PTD benefits against the government’s interest and the administrative burden created by the additional safeguards proposed. The majority characterizes the cost of additional safeguards as not insubstantial. That seems an odd conclusion, considering that the system of full adjudicative hearings has operated for years without significant complaint about the cost. In any event, based on my conclusion that, under the current procedures there is a high risk of an erroneous deprivation and that a full adjudicative hearing is necessary to defeat that risk, I would conclude that any significant additional cost is justified.
When life-long benefits are at stake, denying an injured worker the opportunity to have all of the evidence, including the worker’s veracity, evaluated in an adjudicative hearing, unfairly distorts the system against the worker so significantly that it violates the worker’s right to due process of law.
For the foregoing reasons, I respectfully dissent.
I join in Judge Wollheim’s dissent. Wollheim, J., joins in this dissent.Recently, the Supreme Court issued a decision that calls into question the validity of Carr. American Mfrs. Mut. Ins. Co. v. Sullivan, _US_, 119 S Ct 977, 143 L Ed 2d 130 (1999). However, the parties here did not dispute that the denial of permanent total disability benefits involves government action. 159 Or App at 234.
In Mathews, the Supreme Court commented that “felligibility for disability benefits is * * * wholly unrelated to the worker’s income or support from many other sources such as * * * workmen’s compensation awards\.T 424 US at 340 (emphasis added).