The opinion
WOLLHEIM, J.,
dissenting.
I respectfully dissent for the reasons stated in my dissents in Logsdon v. SAIF, 181 Or App 317 , 45 P3d 990 (2002) (Wollheim, J., dissenting), and Trujillo v. Pacific Safety Supply, 181 Or App 302 , 45 P3d 1017 (2002) (Wollheim, J., concurring in part and dissenting in part). Here, however, claimant was not only precluded from testifying about the extent of her permanent disability but was also precluded from cross-examining the medical arbiter whose report was the basis for reducing her award of permanent disability. I write here to address the issue of whether the Workers’ Compensation Act allows the cross-examination of medical arbiters and, if it does not, whether the act violates the Due Process Clause of the United States Constitution.
Claimant injured her left wrist in 1996. SAIF accepted the claim for a left wrist sprain. Based on a closing evaluation by claimant’s attending physician, the claim was closed by a determination order, with an award of 21 percent permanent disability. The award of permanent disability was based primarily on loss of strength. SAIF requested reconsideration, seeking a reduction in claimant’s award. SAIF also requested the appointment of a medical arbiter. Dr. Neumann was appointed as the arbiter. During the medical arbiter examination, Neumann tested claimant’s strength. The grip strength was 39 pounds on the injured left arm and the grip strength on the right was 64 pounds. Based on his examination, Neumann reported that claimant had full strength on the left but did not explain this apparent discrepancy. Claimant sought to depose Neumann but could not because of Neumann’s unavailability up through the end of *462 the reconsideration process. Based on Neumann’s report, the order on reconsideration reduced claimant’s permanent disability award from 21 percent to one percent.
Claimant requested a hearing. At the hearing, claimant sought to testify in an attempt to correct the record regarding her permanent impairment. ORS 656.283(7). The administrative law judge (AU) rejected her request to testify, holding that ORS 656.283(7) precluded the admissibility of a worker’s testimony regarding extent of permanent disability. Claimant also sought to exclude the admission of the medical arbiter’s report because Neumann was not made available for cross-examination, and claimant argued that she had a right to cross-examination under ORS 656.310(2). The ALJ admitted the medical arbiter’s report, holding that there is no statutory right to cross-examine a medical arbiter. See Richard D. Nelson, 49 Van Natta 458 (1997).
ORS 656.268(6)(f) provides, “[a]ny medical arbiter report may be received as evidence at a hearing even if the report is not prepared in time for use in the reconsideration proceeding.” ORS 656.310(2) provides, in part:
“The contents of medical, surgical and hospital reports presented by claimants for compensation shall constitute prima facie evidence as to the matter contained therein; so, also, shall such reports presented by the insurer or self-insured employer, provided that the doctor rendering medical and surgical reports consents to submit to cross-examination.” (Emphasis added.)
In addition, ORS 656.327(4) provides, in part:
“No member of a panel or a medical arbiter shall be examined or subject to administrative or civil liability regarding participation in or the findings or the panel or medical arbiter or any matter before the panel or medical arbiter other than in proceedings under this chapter.” (Emphasis added.)
Based on the plain language of those statutes, it would appear that a claimant has a statutory right to cross-examine a medical arbiter in a hearing. However, ORS 656.283(7) precludes the admission of any evidence at hearing that was not submitted at reconsideration. Thus, the statutes are in conflict. In Koskela v. Willamette Industries, Inc., 331 Or 362, *463 377 , 15 P3d 548 (2000), the Supreme Court resolved this conflict, holding:
“Although * * * ORS 656.310(2) remain[s] applicable in other kinds of hearings provided for in chapter 656, [it] no longer applies] to hearings on orders on reconsideration. As we have explained, the post-1995 statutory scheme for determining the extent of an injured worker’s permanent disability does not permit the introduction of evidence through oral testimony or cross-examination at hearing. Rather, the process consists entirely of written submissions, from which the decision-maker determines whether the worker has met the burden of proof and persuasion with respect to [permanent total disability] benefits.” (Emphasis in original.)
As interpreted in Koskela , the Workers’ Compensation Act precludes an injured worker from testifying at an extent of disability hearing and precludes the injured worker from cross-examining the medical arbiter.
For the reasons stated in my dissents in Logsdon and Trujillo , I would conclude that those preclusions violate the Due Process Clause. Accordingly, I respectfully dissent.
Armstrong, J., joins in this dissent.