dissenting.
I join in Judge De Muniz’ dissent but write separately for two reasons. The first is to articulate my own difficulties with the majority’s opinion. The second is to highlight what I perceive to be the systematic erosion of due process rights in Oregon’s Workers’ Compensation Law.
I take issue with the majority on three points, the first of which is its ad hoc application of the three-part balancing test found in Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 18 (1976). The majority acknowledges the difference between Mathews and the case at bar, concluding that Mathews does not control in this situation. 159 Or App at 244-45. The majority nevertheless deconstructs petitioner’s argument using Mathews as its primary source. As applied narrowly to this case, I do not believe it is correct for *257this court to minimize the application of Mathews but then use a select portion of its analysis with no regard for the remaining totality of circumstances in which that analysis applied. At its inception, the Mathews test — allocating due process by balancing the private interest affected, the risk of erroneous deprivation vis-a-vis the value of additional safeguards, and the government’s interest in administrative efficiency — was informed by, and drew its vitality from, the administrative context that necessitated its creation. The majority correctly ascertains that close parallels exist between Mathews and the case before us now. 159 Or App at 244-45. Rather than ignoring those parallels, we should compare them and acknowledge that under the totality of Mathews, we lack, as a threshold matter, many of the components that helped the Matthews court ultimately hold that the process in that case was adequate.
In Mathews, less process was needed before terminating the petitioner’s benefits because of the opportunity for a post-termination evidentiary hearing and judicial review. 424 US at 349. That option does not exist for claimant here. In Mathews, the petitioners worked with an “open-file” system that allowed them to submit new evidence at any time and often resulted in additional medical examinations. 424 US at 347. That right also does not exist for claimant here. My point is that if we are to engage in “judicial balancing,” then we should employ some standard to which we can refer and, through careful comparison, calibrate our means of measurement, whatever they might be. In this case, if that standard is to be Mathews, then by comparison, claimant here begins in a system already heavily weighted against him through paucity of process. And if the standard is to be something other than Mathews, then the majority has yet to articulate it.1
My second point of contention with the majority’s opinion is its characterization of the cross-examination process at hearing. This issue is important because the cross-examination of experts at an extent of disability hearing is a *258critical underpinning of the majority’s conclusion. The majority’s assumption is that whether an injured worker is permanently totally disabled depends largely on written medical and vocational reports. 159 Or App at 239, 243-44. In order to conclude that these expert reports are reliable, the majority assumes that the experts must be made available for cross-examination at the extent of disability hearing. 159 Or App at 238-39. The majority’s conclusion is that due process does not entitle a claimant to orally present evidence at hearing because the determination to be made is based largely on written expert reports, subject to cross-examination. 159 Or App at 246.
The majority is correct that vocational experts can be cross-examined at an extent of disability hearing if the expert’s report was submitted at reconsideration. Rogue Valley Medical Center v. McClearen, 152 Or App 239, 952 P2d 1048, rev den 327 Or 123 (1998). The same, however, cannot be said for medical experts. ORS 656.283(7) provides, in part:
“Evidence on an issue regarding a notice of closure or determination order that was not submitted at the reconsideration required by ORS 656.268 is not admissible at hearing * * * »
Precision Castparts Corp. v. Plummer, 140 Or App 227, 231, 914 P2d 1140 (1996), is the first case that considered the limitation on evidence at an extent of disability hearing:
“The unmistakable import of the text of ORS 656.283(7) is that any evidence, including a claimant’s testimony concerning the notice of closure or reconsideration order, is inadmissible at a subsequent hearing concerning the extent of the injured worker’s permanent disability if not submitted at reconsideration and not made a part of the reconsideration record.” (Emphasis in original.)
The majority correctly cites OAR 438-007-0005(3), a rule that expressly requires a medical expert submit to cross-examination if that expert’s report is submitted at hearing.2 However, the administrative rule is inconsistent with ORS 656.283(7). While the Board has the authority to interpret *259statutory terms, the Board “may not, by its rules, amend, alter, enlarge or limit the terms of a statute.” Cook v. Workers’ Compensation Department, 306 Or 134, 138, 758 P2d 854 (1988). Further, the Board’s “authority [to adopt rules] does not include the power to adopt rules that are inconsistent with statutes.” Franzen v. Liberty Northwest Fire Ins. Co., 154 Or App 503, 507-08, 962 P2d 729 (1998).
In contrast, the cross-examination of vocational experts exists only because this court held that ORS 656.287(1) created an express exception to ORS 656.283(7). McClearen, 152 Or App at 244-45. That outcome helps illustrate why medical expert cross-examination in extent of disability cases is as it is: where there is no statutory authorization and no exception to the evidentiary prohibitions of ORS 656.283(7) exists, no cross-examination is allowed. There is no statutory authority to cross-examine a medical expert at an extent of disability hearing.
For these reasons, I believe that OAR 438-007-0005(3), to the extent that it allows for cross-examination of a medical expert at an extent of disability hearing, is invalid because the rule is inconsistent with ORS 656.283(7). Further, if no cross-examination of a medical expert is allowed at an extent of disability hearing, then part of the majority’s premise collapses, defeating, in turn, its conclusion.
My third complaint is that the majority miscasts the limitations placed on the process of determining permanent total disability (PTD) as “ones of form, not substance.” 159 Or App at 239. On the contrary, under Oregon statutes and case law, when we limit the exploration of PTD issues to written arguments and reports, we cannot help but limit the substance of what we discover. Two reasons for this are the “odd-lot” doctrine and ORS 656.206(3).
In Welch v. Banister Pipeline, 70 Or App 699, 701, 690 P2d 1080 (1984), we explained that:
“Under [the odd-lot doctrine,] a disabled person may remain capable of performing work of some kind but still be permanently disabled due to a combination of medical and nonmedical disabilities which effectively foreclose him from gainful employment. Such nonmedical considerations include age, education, adaptability to nonphysical labor, *260mental capacity and emotional condition, as well as the conditions of the labor market.”
In other words, whether a person is PTD under the odd-lot doctrine requires inquiry into a claimant’s ability to “sell his services on a regular basis in a hypothetically normal labor market.” Harris v. SAIF, 292 Or 683, 695, 642 P2d 1147 (1982). No doubt, vocational experts can establish boundaries for the “normal” labor market, but I question their ability to measure absolutely the nonmedical variables that can hamper an individual’s efforts to “sell his services” within that market. My doubts are aggravated by ORS 656.206(3), which not only places on claimants the burden of proving PTD but also requires them to demonstrate both their willingness to seek regular employment and the reasonableness of their efforts to that end. Taken together, these factors do not contribute to the creation of a “sharply focused and easily documented decision” like the one at the heart of Mathews. 424 US at 343. Instead they create a situation where “a wide variety of information may be deemed relevant, and issues of witness credibility and veracity often are critical to the decision making process. * * * [I]n such circumstances ‘written submissions are a wholly unsatisfactory basis for decision.’ ” Id. at 343-44.
As pointed as my disagreements with the majority are, a broader basis for my resistance to this case stems from what I perceive to be a general devolution of due process rights in Oregon Workers’ Compensation Law. A brief review of the Workers’ Compensation Law demonstrates this erosion.
At the turn of the century, an injured worker’s sole recourse in Oregon was an often-difficult action at law. Recovery was impeded by a number of common-law doctrines that shifted the risk of an on-the-job injury to the worker while protecting the profits that the worker generated for the employer from tort liability. But even under that system, the worker had the right to a day in court and the right to personally be heard.
In 1913, this state adopted its first workers’ compensation law. Or Laws 1913, ch 112. Its preamble provided, in part:
*261“The State of Oregon recognizes that the prosecution of the various industrial enterprises which must be relied upon to create and preserve the wealth and prosperity of the state involves the injury of large numbers of workmen, resulting in their partial or total incapacity or death * * ORS 656.004 (1979).3
The purpose of the law was to make injuries arising out of and in the course and scope of employment a valid cost of doing business in Oregon. The law removed the common-law impediments to industrial tort recovery for those workers not covered under the law and provided an alternative remedy for those the law covered. The new law was voluntary; an employer had to elect to be covered. ORS 656.002 to ORS 656.034 (1963). The new law augmented, rather than supplanted, an injured worker’s ability to recover from the employer by creating an alternative forum within which to seek redress. It established a state commission to act as insurer, administrator, and quasi-adjudicator of on the job injuries. It created automatic compensation for industrial injuries, rigid benefit schedules, and an employer-supplied accident fund. Importantly, it retained the feature allowing injured workers personally to tell their stories. While this right occurred in an administrative setting, it maintained the inherent due process protections of traditional adjudicatory forums. If the injured worker was dissatisfied by a decision made by the State Insurance Accident Commission, the injured worker had the right to appeal to the circuit court. ORS 656.286(1) (1963). An injured worker was entitled, as a matter of right, to a jury trial on any question of fact and the court was bound by that finding. ORS 656.288(3) (1963) and 656.290(1) (1963).
In 1965, however, those protections began incrementally to disappear with changes in the law. Except for injuries caused by an employer’s intentional acts, workers injuried on the job were no longer permitted the option of tort actions against their employers; the Workmens’ Compensation Law became their exclusive remedy. ORS 656.018. Coverage against injury became compulsory for all. An injured worker *262lost the right to a jury trial after review by the newly created Workmens’ Compensation Board. ORS 656.712 (1965). In place of a jury trial the circuit court would review the entire record. The judge could receive additional evidence and could “make such disposition of the case as the judge determines to be appropriate.” ORS 656.298(6) (1965).
In 1977, the legislature eliminated review by the circuit court. Instead the Court of Appeals directly reviewed orders by the Workers’ Compensation Board.4 This court could consider additional evidence and dispose of each case under de novo review. ORS 656.298 (1977). Ten years later, in 1987, de novo review was eliminated. ORS 656.298(6) (1987) (now numbered ORS 656.298(7)). Now we review the Board’s decisions only to determine whether they are supported by substantial evidence and for errors of law. Armstrong v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988).
Today, there is no opportunity for an injured worker to have a “day in court” before the worker’s peers or anyone else, concerning the extent of the worker’s disability. Initial disability determinations are not based on personal testimony but rather on paper trails created within the Workers’ Compensation Division or collected by the employer. ORS 656.268. If the injured worker disagrees with a determination, a request for reconsideration will produce only another record review. The process specifically excludes the injured worker, or a representative, from personally appearing unless the agency asks the worker to appear, an invitation that is rarely, if ever, extended. OAR 436-030-0115(2). Thus, the determination of the extent of an injured worker’s disability is made without the maker of that determination ever seeing or hearing the injured worker.
Injured workers may appeal the resulting reconsideration orders to an administrative law judge, but only evidence presented at reconsideration may be submitted at the subsequent hearing. ORS 656.283(7). The result is a Catch-22 of epic proportions: at the point where injured workers *263would traditionally look into the face of an impartial adjudicator and tell their stories, they are precluded from doing so because they could not do so at the previous reconsideration proceeding. These things should not be. Due process requires more. Simple justice requires more.
We live in a time of unparalleled prosperity, a prosperity built, I believe, largely on the backs of working men and women. The 1913 Oregon Legislature recognized this fact when it declared that the wealth and prosperity of this state was created by industrial enterprises and that those enterprises caused injury to a large number of workers. In 1913, if one of those backs broke then the injured worker was entitled to a day in court to tell what happened and how the injury impacted the injured worker’s capacity to earn a living. Now, however, should one of those backs break, our system of industrial justice no longer extends to the injured that most elemental of courtesies: a moment to relate, in person, the extent of their injuiy to those appointed to judge the extent of their disability. In our attempt at efficiency, we have succeeded only in eliminating from the dialogue a small vestige of our humanity. We have created order without asking if it is, in fact, good order. The result, I think, moves us toward a bureaucratic ghetto wherein the voices of injured workers are silenced by a system that resembles justice, but denies the power thereof.
I, therefore, dissent.
De Muniz, J., joins in this dissent.The recent Supreme Court decision in American Mfrs. Mut. Ins. Co. v. Sullivan, _US_, 119 S Ct 977, 143 L Ed 2d 130 (1999), does not alter my objections. In Sullivan, as in Mathews, the petitioners had the right to a full post-termination evidentiary hearing. Claimant here has no similar right.
It is undisputed that a party has the right to cross-examine a medical expert when the issue is not the extent of disability, e.g. at a compensability hearing.
This language remained until it was repealed in 1981 and replaced by ORS 656.012.
In 1977, the legislature changed the name of the Board from Workmens’ Compensation Board to the Workers’ Compensation Board. Or Laws 1977, ch 109, §3.