Trujillo v. Pacific Safety Supply

*304LANDAU, J.

The Oregon Supreme Court remanded this workers’ compensation case to us for reconsideration in light of its decision in Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000). In our original opinion, Trujillo v. Pacific Safety Supply, 159 Or App 350, 978 P2d 1037 (1999), we reversed and remanded for reconsideration the Workers’ Compensation Board’s (board) order awarding claimant permanent partial disability. We rejected claimant’s contention that he had a constitutional right to testify at an oral hearing concerning the rating of his base functional capacity (BFC), but we concluded that reversal and remand were required because the board’s order included inconsistent findings concerning the rating of claimant’s BFC. On remand, and after reconsideration in light of Koskela, we adhere to our conclusion that claimant does not have a constitutional right to testify at an oral hearing concerning the rating of his BFC. We therefore reverse and remand for reconsideration on the grounds stated in our original opinion.

The relevant facts are few and undisputed. Claimant compensably injured his neck, shoulders, and chest. Employer accepted the claim and, after claimant became medically stationary, issued a notice of closure awarding 16 percent unscheduled permanent partial disability. A worksheet attached to the notice indicated that claimant’s BFC and residual functional capacity (RFC) were light. Claimant requested reconsideration, and the reconsideration order upheld the notice of closure. Claimant requested a hearing. At the hearing, he requested an opportunity to testify concerning the rating of his BFC. The administrative law judge declined the request, concluding that ORS 656.283(7) precludes the admission of evidence that was not in the reconsideration record, and the board affirmed. The board ultimately awarded claimant 21 percent disability, but claimant petitioned for judicial review, seeking additional compensation. He advanced two assignments on review. First, he argued that the board erred in failing to permit him to testify at the hearing concerning the rating of his BFC. According to claimant, he has a right to do so, guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States *305Constitution. Second, he argued that the board’s findings concerning his BFC were inconsistent. We rejected the first assignment, but we agreed with the second. Trujillo, 159 Or App at 352.

Claimant petitioned for review. While the petition was pending, the Oregon Supreme Court issued its opinion in Koskela. In that case, the court held that, notwithstanding ORS 656.283(7), a claimant seeking permanent total disability benefits has a constitutional right to an oral evidentiary hearing. The court reached that conclusion by applying the three-part analysis of Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976). The court held in Koskela that: (1) a claimant whose claim has been accepted has a significant property interest in receiving permanent total disability benefits, 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) the additional cost of providing a hearing is minimal compared to the magnitude of the private interest at stake, id. at 382.

1. It now falls to us to determine whether that decision requires a different result in this case. Following the lead of the Oregon Supreme Court in Koskela, we examine the procedure in this case in light of the three Mathews factors.

We begin with the nature of claimant’s interest. At issue in this case is the extent of claimant’s entitlement to permanent partial disability benefits, determined by calculation of, among other things, his BFC. As we explained in SAIF v. Fister, 177 Or App 13,15, 33 P3d 320 (2001):

“The amount of compensation that an injured worker receives for a permanent injury depends on the extent of the disability (called ‘permanent partial disability,’ or PPD) caused by the injury. ORS 656.214(5). The extent of disability, expressed as a percentage {e.g., ‘14 percent PPD’), depends in turn on the seriousness of the injury ‘as modified by factors of age, education and adaptability to perform a given job.’ ORS 656.726(4)(f)(A). The Department of Consumer and Business Services provides formulas for *306expressing these modifying factors as numbers. A high number adds to the extent of disability, which, in turn, adds to the injured worker’s compensation.
“The modifying factor at issue in this case is ‘adaptability.’ Adaptability, under the Department’s rules, is determined by comparing the worker’s ability to perform work before and after the injury or, in the language of the rules, by comparing the worker’s ‘base functional capacity (BFC) with his or her ‘residual functional capacity (RFC). Former OAR 436-35-310(2) (1994). These statutes and rules reflect the proposition that a worker whose injury causes a significant loss of working capacity deserves more compensation than a worker whose injury inflicts minimal harm to working capacity!.]”

(Footnote omitted.)

A worker who sustains partial disability remains able to work; indeed, a partially disabled worker has the right either to return to work with the employer at injury, ORS 656.415, or to obtain vocational assistance or training if he or she is unable to find suitable new employment, ORS 656.340(6). A worker who sustains partial disability also is entitled to reasonable and necessary medical services, ORS 656.245, and to a reopening of the claim for additional benefits if the compensable condition worsens or if new medical conditions develop as a result of the compensable condition. ORS 656.273(1). Thus, the purpose and effect of an award of permanent partial disability is different from the award of permanent total disability that was at issue in Koskela. As the Supreme Court noted in that case, an award of permanent total disability implicates a significant property interest because its purpose is to provide a form of lifetime total wage replacement. According to the court, the importance of economic self-sufficiency is “self-evident.” Koskela, 331 Or at 379. In the case of permanent partial disability, the issue of economic self-sufficiency is not so directly implicated. The benefit is usually paid as a one-time lump sum, rather than as a monthly payment over the lifetime of the worker. ORS 656.214.

We turn to the risk of erroneous decisions and the probable value of additional safeguards. In Mathews, the United States Supreme Court observed that a determination *307of when a social security benefit claimant’s disability ceases is an issue of medical proof that is generally determined by reference to routine, standard, and unbiased medical reports. As such, the Court stated, issues of credibility and veracity are rarely involved and thus the risk of error and probable value of the additional safeguard of requiring an oral hearing are slight. Mathews, 424 US at 344. Similarly, in Logsdon v. SAIF Corp., 181 Or App 317, 323-24, 45 P3d 990 (2002), we held that a determination of a workers’ compensation claimant’s medically stationary date is an issue of medical proof that does not routinely implicate credibility and veracity concerns. In contrast, in Koskela, the Oregon Supreme Court held that a determination of a claimant’s entitlement to permanent total disability benefits largely turns on the worker’s credibility concerning his or her subjective willingness to work and reasonable efforts to find suitable employment. Because issues of credibility and veracity are inherent in the decision-making process, the court held, the risk of error through failing to permit a claimant to testify at an oral hearing is great. Koskela, 331 Or at 380.

In our view, the calculation of a claimant’s BFC is much more like the matters at issue in Mathews and Logsdon than those at issue in Koskela. Under applicable administrative rules, the principal method of determining a BFC is by reference to the Dictionary of Occupational Titles (DOT) code. OAR 436-035-0310(3)(a). In some cases, it also may be determined from a physical capacity evaluation performed by medical experts before the injury or disease or from job descriptions concerning the nature of the worker’s duties at the time of the injury. In this case, the board determined claimant’s BFC by reference to the DOT code. Although it is conceivable that, in at least some cases, a claimant could take issue with the accuracy of a job description, the resolution of such a dispute does not inherently involve matters of credibility and veracity. Moreover, as the United States Supreme Court observed in Mathews, “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, concerning the state’s interests and the costs of added procedural safeguards, we note that, even *308assuming for the sake of argument that, on a per-case basis, the costs are relatively small, the sheer volume of permanent partial disability cases suggests that the impact of requiring an oral hearing on all BFC disputes would not be insubstantial. According to the Workers’ Compensation Division, there are more than 6,000 claim closures per year with awards of permanent partial disability. In contrast, the total annual number of permanent total disability awards — the category of awards at issue in Koskela — is approximately 12.

In any event, given the relatively limited nature of the individual property interest involved in a BFC calculation, and given the fact that credibility and veracity simply do not ordinarily pertain to a determination of a claimant’s BFC, we conclude that the added procedural benefits obtained by requiring an oral hearing are too meager to outweigh the state’s interest in developing a complete record at an early stage in the process to promote a speedy and efficient remedy for workers seeking benefits.

As it does in Logsdon, the dissent takes issue with our application of Mathews in this case. And, as in Logsdon, we find the dissent’s arguments in this case unpersuasive.

The dissent begins by complaining that we err in unjustly “minimizing” the importance of the interest at stake. According to the dissent, a claimant’s interest in permanent partial disability benefits is significant because those benefits are, to some extent, designed to provide a substitute for lost income occasioned by a workplace injury. 181 Or App at 312 (Wollheim, J., dissenting). The dissent’s argument amounts to an attack on a straw man, however. We have not said that claimant’s interest is insignificant, only that, because of its partial nature, it is less significant than the interests at issue in Koskela and in Mathews. See, e.g., Carr v. SAIF, 65 Or App 110, 120-21, 670 P2d 1037 (1983) (claimant’s interest in uninterrupted receipt of temporary disability benefits, while significant, “is generally less than the interest of the recipient in Mathews”).

Next, the dissent complains that we err in concluding that the risk of erroneous decisions as to a worker’s BFC is minimal in the absence of cross-examination. Although the dissent acknowledges that the BFC is ordinarily determined *309by reference to the DOT, it insists that cross-examination is required in this case, because claimant contests the classification of his job duties to which the DOT code was applied. 181 Or App at 313-14 (Wollheim, J., dissenting). As we have noted, however, the fact that, in this case, claimant has contested his job classification is beside the point. The procedural safeguards required by the Due Process Clause under Mathews are not derived from the facts of particular cases, but rather from “the risk of error inherent in the truthfinding process as applied to the generality of cases.” 424 US at 344 (emphasis added). The dissent does not explain why, in the vast majority of cases, a worker’s job description cannot be established by affidavits and other documentation. It certainly does not explain why, “in the generality of cases,” there is a significant risk of erroneous decisionmaking in the absence of a right to cross-examine. That is the showing that Mathews requires.

Third, the dissent asserts that any burden associated with permitting cross-examination will be minimal. 181 Or App at 314 (Wollheim, J., dissenting). As in Logsdon, the dissent here misstates the relevant inquiry. Mathews requires, not just an assessment of the burden of requiring additional procedures, but also a weighing of that burden against any benefits that might be obtained by requiring those procedures. As we have noted, there is reason to believe that the burden would not be insignificant. But assuming that that is not the case, even minimal burdens cannot be justified in light of the correspondingly minimal benefits that would be obtained by requiring the additional procedural safeguards in the generality of cases.

2. Citing Wigmore’s treatise on evidence, the dissent finally insists that cross-examination “is the best method for discovering the ‘truth.’ ” 181 Or App at 314 n 3 (Wollheim, J., dissenting). With respect, the Due Process Clause simply does not require “the best method for discovering the truth.” See, e.g., Landon v. Plasencia, 459 US 21,35,103 S Ct 321,74 L Ed 2d 21 (1982) (Due Process Clause does not permit court to impose additional procedures merely “because the reviewing court may find them preferable”). It requires minimum procedural safeguards, depending on the nature of the interests involved and a weighing of costs and benefits in terms of *310the risks of erroneous decisionmaking in the generality of cases. Mathews, 424 US at 344.

Reversed and remanded for reconsideration.