The opinion
DEITS, C. J.,
dissenting.
The majority correctly states:
“In Koskela v. Willamette Industries, Inc., 159 Or App 229 , 978 P2d 1018 , rev allowed 329 Or 318 (1999), we held that the claimant’s due process rights were not violated by the application of ORS 656.283(7), which, as amended by Oregon Laws 1995, chapter 332, section 34, makes evidence regarding the extent of disability inadmissible in the hearing process if it ‘was not submitted at the reconsideration required by ORS 656.268[.]’ The constitutional challenge in Koskela was a facial attack, and we expressly left open the question whether the retroactive effect of the 1995 amendment could result in a deprivation of due process where the claimant’s opportunity to present evidence in the reconsideration process had passed but the hearing process was not complete at the time that the amended statute took effect. See Koskela, 159 Or App at 241 n 7. This case presents that question.” 165 Or App at 638-39.
However, notwithstanding its accurate identification of the question in the case, the majority never answers that question. I will therefore begin by doing so.
The most fundamental requirement of due process is that the procedures that are afforded to affected persons be sufficient “to insure that they are given a meaningful opportunity to present their case.” Mathews v. Eldridge, 424 US 319, 349 , 96 S Ct 893 , 47 L Ed 2d 18 (1976). The procedures here did not suffice because, as applied, they effectively prevented claimant from presenting evidence of the kind in question at any stage of the process. Claimant was under no compulsion to produce the evidence at the time that the reconsideration procedures were conducted. However, by the time of the hearing, he had no opportunity to present evidence that had not been adduced at the reconsideration stage.
SAIF and employer contend that claimant could have presented much, if not all, of the evidence in question in the reconsideration process and that the fact that he was not required to do so at the relevant time in order to preserve his ability to rely on the evidence in the hearing process should *643 not assist him now. According to SAIF and employer, claimant “simply failed to use [the] opportunity” that was available for the presentation of evidence on reconsideration, and “due process does not guarantee ‘two bites of the apple.’ ” However, SAIF’s and employer’s metaphor is inapt. The better analogy for this situation is one in which a customer chooses one apple over another at a fruit stand and, after paying for it with his last dime, is informed by the storekeeper that he is not allowed to eat it without first having eaten the other apple.
It is difficult to imagine a more effective way of defeating the right to a fair hearing than by imposing new preservation requirements for what may be presented at the hearing after it is too late to satisfy them. That is precisely what the retroactive application of the amendment to ORS 656.283(7) does under the facts here. Consequently, I agree with claimant that his right to due process of law was violated.
SAIF and employer further argue, however, that any violation of claimant’s due process rights in connection with the exclusion of the evidence that he offered at the hearing was harmless, because the AU took offers of proof of the excluded evidence, and the Board made an “alternative” finding that, “even if we considered the evidence excluded by the ALJ, we would still find that claimant has not carried his burden of proving that he is willing to seek employment and that he has made reasonable efforts to obtain employment.” Although the majority does not explicitly say so, the apparent basis for its holding is its agreement with that harmless error argument or some variation of it.
Seemingly, the harmless error argument is close to self-refuting because, as claimant points out, he was given no opportunity at the hearing to cross-examine the witnesses whose testimony his opponent offered in the offer of proof itself, let alone to cure any antecedent defects in his ability to confront the proponents of adverse evidence. Nevertheless, the majority postulates that, notwithstanding his exclusion of evidence pursuant to the amended ORS 656.283(7), the AU allowed the parties to “put on the best of [their] evidence” in the guise of the offers of proof. The majority then *644 engages in an elaborate analysis of the evidence that was before the Board, via the offers of proof or otherwise, as well as the unpursued opportunities that the offers of proof ostensibly gave claimant to present other items of evidence. Based upon its assessment of the evidence that was — or was not— advanced in the offers of proof or on reconsideration, and its assessment of the Board’s response to the evidence that was before it, the majority concludes that any limitation on claimant’s ability to produce or to refute evidence “could [not] have played any role in the Board’s decision regarding claimant’s failure of proof.” 165 Or App at 641. 1
Although some of the particulars in the majority’s reasoning are elusive, its ultimate point is clear: The majority concludes that any denial of claimant’s constitutional right to present his case could not have affected the result, either because he would not have presented any different evidence or cross-examination than he did even if he had been given a fair opportunity, or because the Board would have made the same decision no matter what evidence was presented to it.
In my view, the majority’s reasoning stands the issue on its head. The fact that claimant was able to present only the evidence that he did through the inadequate procedures that were afforded him is not a basis for assuming that he could not have made a different or better showing if different procedures had been provided. Rather, it is a basis for assuming that the inadequate procedures interfered with claimant’s ability to present his case. Because I do not share the majority’s view that federal constitutional error is presumptively harmless, I do not agree with the majority that due process was unnecessary in this case and, therefore, I respectfully dissent.
I accept, for purposes of this occasion only, the correctness of the majority’s unusual understanding that an offer of proof can serve to cure the erroneous exclusion of evidence, as distinct from performing its normal function of preserving the error for appellate review.