Oregon Workers Compensation: Is the deposition of a medical arbiter a thing?
An impartial medical examination is typically scheduled as part of reconsideration proceedings when there is a disagreement about the impairment findings used to close a claim. This examination is known as a medical arbiter examination. A physician or a panel of physicians is assigned by the Appellate Review Unit (“ARU”) of the Workers’ Compensation Division to serve as the medical arbiter and conduct an impartial examination. To ensure impartiality, the selected arbiters are doctors who have yet to examine the injured worker in relation to the claim at hand. Upon completion of the examination, the arbiters issue a written report based on their findings and provide a copy to the ARU, and both parties. This report is typically instrumental in the Order on Reconsideration.
So, what happens when a party disagrees with the medical arbiter examination findings? Are parties allowed to depose the impartial medical arbiters to understand better or negate their findings?
In reconsideration proceedings, depositions of arbiters have generally been denied since the records are considered closed when arbiter reports are issued. In Koskela v. Willamette Industries, Inc., 159 Or App 229 (1999), the Claimant/injured worker argued that denying his request to depose the arbiter was a due process violation. The court ruled that any evidence not submitted during the reconsideration process is inadmissible. In Pacheco-Gonzalez v. SAIF Corp., 123 Or. App. 312, 316, 860 P.2d 822, 824 (1993), the court ruled no subsequent medical evidence of the worker’s impairment is admissible before the Department, the Board or the courts for purposes of making findings of impairment on the claim closure after submission of medical arbiter report. Similarly, in Patsy A. Puckett, 46 Van Natta 892 (Or. Work. Comp. Bd. 1994), the court opined, “admissibility of a deposition of a medical arbiter [was] questionable.”
In a more recent case decided in March 2024, the Board ruled that due process rights are not violated when the Claimant/injured worker is not allowed to cross-examine medical arbiters. Jantel C. Giovannetti-Kristich, 76 Van Natta 163 (2024). In that instance, the Claimant/injured worker alleged due process violations based on the Board’s denial of her request to cross-examine the medical arbiters. The Board concluded that the Claimant/injured worker failed to provide an error in the reconsideration process as the record is statutorily limited to the evidence developed during the reconsideration process. The Board concluded there is not a right to cross-examine a medical arbiter.
In all the cases, it was generally agreed that only supplementary evidence allowed after the arbiter report are findings that seek to fill a lacuna in the initial report where necessary information is missing. This permissible supplementary evidence differs from a deposition seeking to undermine or bolster information already provided in an arbiter report.
If you have questions about the appropriateness of medical arbiters’ depositions or other claim issues, you can contact me at or (503) 776-5423.
Posted by Dee Akinbosade.
