Workers’ Compensation Board
Tuesday, December 13, 2005
Present: Abbie Herman, Chair
Frank Biehl, Member
Greig Lowell, Member
Vera Langer, Member
Mustafa Kasubhai, Member
Roger Pearson, Managing Attorney
John McCullough, Presiding ALJ
Terry Taylor, Administrative Services Manager
Karen Burton, Executive Assistant
Steve Cotton, SAIF Attorney
Gary Wallmark, SAIF Attorney
Julie Johnson, Liberty NW Attorney
Martin Alvey, Attorney
Randy Elmer, Attorney
Keith Semple, Attorney
Call to Order
Chair Herman called the meeting to order.
Approval of Agenda and Order of Business
Herman asked whether Members had any changes to the agenda. Kasubhai
offered that public comment be heard during discussion of the agenda item. With no
objection, the Board allowed.
Approval of Past Minutes
Biehl moved for approval of the October 26 and November 10, 2005 meeting
minutes. Langer seconded. Motion carried.
Reports of Administrative Staff
Taylor reported that the Ontario lease is up for renewal and she is currently in
the process of soliciting comments from ALJs who travel there.
Bend and Coos Bay offices have been installed with stand-alone computers
for digital recording so ALJs no longer have to transport laptops to those offices. In
addition, a TV/VCR has been placed in the Bend office for use in viewing videotape and
DVD exhibits, and plans are also underway to place a TV/VCR in the Coos Bay office.
Security cameras in the Portland and Salem Hearings offices and are working
well. This is an update from the security system purchased in 1983.
WCB is hosting Circuit Court Judge Norblad and two of his staff who were
displaced by an incident at the Marion County Courthouse. In addition, a uniformed
officer is present when cases are heard. Taylor complimented WCB staff that were able
to set up workspace(s) on such short notice to ensure an uninterrupted docket for the
McCullough reported ALJ Donnelly started with her hearing schedule the first
week in December.
Pearson reported Chris Frost has been hired as a staff attorney and will begin
the first week in January.
Discussion of issues concerning resignation of counsel, including impact
on scheduled hearing.
In response to concerns from Liberty Northwest as well as Ron Atwood’s
letter relating to resignation of counsel and its effect on scheduled hearings, Herman
voiced interest in hearing comments from claimants’ attorneys as well as Workers’
Compensation Section members in the audience.
Alvey did not believe it to be a big problem. If attorneys believe there is no
chance of prevailing at hearing, they are placed in a predicament, as sanctions could be
imposed if counsel goes forward without presenting evidence. Alvey’s practice is to
provide the client with information/options and, when the client wishes to proceed, seek
postponement to provide him/her time to obtain other counsel. Alvey questioned whether
claimant’s attorneys are chronically doing this.
Elmer noted that he has been practicing 23 years representing claimants. When
Judy Johnson came to him indicating it was becoming a problem, he met with Jim Egan
and Ed Harry, and they concluded it did not appear to be a large enough problem to
address by rule. Considering that the circumstances do not lend themselves to a rule,
Elmer said ALJs and the Board must trust practitioners to screen clients and get involved
within the necessary timeframes. Sometimes on the eve of a hearing, practitioners may
find discrepancies, etc., and it would be unethical to prejudice the client and withdraw or
go forward with a frivolous case. At that point, claimant would either have the choice of
going forward and lose, withdraw, or obtain other counsel to get another opinion. There
are no other options available if claimants determine they want to seek another opinion
and the Board fashions a rule that prohibits it. He also stated the Court of Appeals would
not look favorably on those cases where the Board refused claimant an opportunity to
retain counsel. To begin, it must be determined whether there is a problem that needs to
be addressed. If there is, and the Board could fashion a rule to solve the ethical dilemmas
that the factual scenarios present, he is unable to come up with one.
Hearing recurring comments, Kasubhai expressed interest in determining how
large of a problem it is.
Unable to provide solid numbers, Johnson responded that it happens enough to
be a genuine concern. She believes the problem creates credibility issues for the forum --
how are insurers to explain to an employer that a claimant is allowed to get another
attorney at the last minute. Johnson believes there ought to be some type of approval
from the forum for withdrawal of counsel, or some type of rule that allows ALJs to
have authority over the issue.
Herman posed whether there should be some type of study to identify the
magnitude of the problem.
Johnson considers the problem to be real, and would like to find a way to address
it and find some middle ground. She stated a proposed rule makes sense, as having no
rule at all is not working, and there should be tools in place to deal with the issue.
Alvey noted that, if an attorney withdraws, it is customary to give time for
claimant to find other counsel. As such, he does not think a rule is necessary.
Elmer stated there are tools, but not in this forum. The Oregon State Bar is
the appropriate forum to address those complaints.
Wallmark, a SAIF attorney, has experienced similar issues to those of Liberty
Northwest which can have a tremendous impact on smaller employers’ businesses by
making it necessary to close down shop to take witnesses to hearing, or with multiple
employer cases. He believes it is an inefficiency that makes the forum look bad.
Lowell asked whether it might be the timeframe that is the issue.
Wallmark responded that it is not typically an issue if it happens two weeks prior
to the hearing. He explained that most ALJs do not freeze the record, because most
newly-hired attorneys will not come in at that point.
Johnson indicated a need for a process that requires claimants’ attorneys to contact
the ALJ to request withdrawal as counsel and also allows the defense attorney to weigh
in. Perhaps, the Board could look at what other forums do, and also requiring a timely
Alvey noted that, considering the various time constraints, claimants’ attorneys
do not always have the luxury of providing ample advance notice.
Johnson said that the problem would diminish if a claimant’s counsel was
required to speak with the ALJ to explain the withdrawal request. Currently, no contact
is required, only that the request be submitted in writing.
Elmer suggested that the claimants’ bar make the effort to get the word out to talk
to their clients ahead of time. One way to do that would be through upcoming Bench Bar
forums, CLEs, etc.
Johnson stated there are a group of claimants’ attorneys who do not attend Bench
Bar forums, or network with others. Accordingly, she believes a rule is necessary which
would give ALJs broad discretion over the issue.
Wallmark recommended some type of contact be required with the ALJ
which would result in an order of postponement. That order could contain additional
criteria, such as it was granted for good cause but claimant should not expect another
postponement for lack of representation, as that will not be considered adequate cause
the next time.
Interested in further discussion with all members of the Section, Langer stated
there may be more than one problem - one that could be addressed by the Oregon
State Bar, and another problem appears to be abuse by claimants, complicated by the
attorney/client privilege. With many issues to consider with no solutions, Langer would
like to gather further comment.
Concurring with Langer, Herman wants input from a larger group of the Section,
and suggested the Board put something in its News & Case Notes soliciting comments,
and perhaps OWCA, as a group, could invite comments.
Kasubhai declared to OWCA and the policy group that he is very interested in
pursuing and resolving the issue.
Lowell and Biehl agreed that it would be of benefit to have more input.
There being no further business, the meeting adjourned.