# Logsdon v. SAIF Corp. > Court of Appeals of Oregon · May 8, 2002 · 181 Or. App. 317 URL: https://www.frixlaw.com/law-library/cases/9797651 ## Case - **Full name:** In the Matter of the Compensation of Terry G. Logsdon, Claimant. Terry G. LOGSDON, Petitioner, v. SAIF CORPORATION, Respondent - **Court:** Court of Appeals of Oregon - **Decided:** May 8, 2002 - **Citations:** 181 Or. App. 317; 45 P.3d 990; 2002 Ore. App. LEXIS 740 - **Precedential status:** Published - **Opinion:** Dissent by Wollheim - **Judges:** Deits, Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler, Brewer, Schuman - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797651 ## Opinion text WOLLHEIM, J., dissenting. This is an extent of disability case where one issue is when claimant became medically stationary. Claimant sought to compel the scheduling of depositions so that he could cross-examine the two physicians who provided expert opinions regarding the date claimant became medically stationary. The majority concludes that claimant does not have a constitutional right to cross-examine those physicians. Because I disagree with the majority’s application of the Mathews v. Eldridge, 424 US 319, 335 , 96 S Ct 893 , 47 L Ed 2d 18 (1976), three-part due process analysis, I respectfully dissent. I also believe that the majority’s opinion is inconsistent with the Supreme Court’s opinion in Koskela v. Willamette Industries, Inc., 331 Or 362 , 15 P3d 548 (2000). The question is whether ORS 656.283(7), insofar as it forecloses the cross-examination of medical experts on the question of the medically stationary date at an extent of disability hearing, is constitutional. 1 The issue in Koskela was whether ORS 656.283(7) was unconstitutional because it foreclosed the claimant from testifying at hearing when the issue was whether the claimant was entitled to permanent total disability (PTD) benefits. The Supreme Court held that ORS 656.283(7) was unconstitutional insofar as it denied the claimant the right to testify at an extent of disability hearing concerning willingness to work and reasonable efforts to find suitable employment. Although the issue here is slightly different from the issue in Koskela , that analysis applies and controls the outcome here. Although I agree that the three-part analysis from Mathews applies, as required by Koskela , I disagree with the majority’s application of those factors. Those three factors are: *327 “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 US at 335 .1 will address each factor in turn. Private Interest Affected The majority states that the facts of this case “closely parallel” the facts in Mathews, 181 Or App at 321.1 disagree. In Mathews , the private interest at stake was the timing of a hearing on Social Security disability benefit payments, not the benefits themselves. The issue in Mathews was whether a full evidentiary hearing had to be provided before the petitioner’s benefits could be terminated. A full evidentiary hearing with the opportunity for testimony and cross-examination was available to the petitioner after his benefits were terminated. If the termination decision was overturned at the post-termination hearing, the benefits would still be paid. Thus, the interest involved was timing and avoiding an interruption of the receipt of the benefits pending a final administrative decision on the claim. Here, on the other hand, claimant’s interest is in the benefits themselves. In Koskela , the court determined that the claimant’s interest in receiving PTD benefits was great. Here, the majority states that although claimant’s entitlement to temporary disability payments is a property interest protected by the Due Process Clause, “the significance of that property interest is limited.” 181 Or App at 323. The majority downplays the interest at issue by suggesting that because temporary benefits are involved, there is not an “irrevocable impact on a worker’s self-sufficiency and livelihood, as was the case, for example, in Koskela.” 181 Or App at 323.1 disagree. “ [Temporary total disability benefits are designed to provide a substitute for income lost due to a worker’s temporary inability to otherwise provide for himself. Deprivation of compensation, even for a relatively brief period of time, and the resulting possible loss of ability to acquire essential *328 goods and services, may threaten the health and safety of the worker and his dependents.” Carr v. SAIF, 65 Or App 110, 121 , 670 P2d 1037 (1983), rev dismissed 297 Or 83 (1984). Temporary benefits have just as strong an impact on a worker’s self-sufficiency and livelihood as do permanent benefits. The property interest here is sufficiently strong that it should not be as summarily downplayed as the majority suggests. Risk of Erroneous Decisions Under the second Mathews factor — the risk of erroneous decisions and the probable value of additional safeguards — the majority states that when a claimant becomes medically stationary “is generally determined by reference to routine, standard, and unbiased medical reports. Witness credibility and veracity are rarely involved. This case, therefore, stands in distinct contrast to Koskela , in which the court took pains to emphasize that its assessment of the risk of erroneous decisions largely turned on the worker’s credibility concerning his or her willingness to work and reasonable efforts to find suitable employment.” 181 Or App at 323. ORS 656.005(17) defines medically stationary as “no further material improvement would reasonably be expected from medical treatment, or the passage of time.” Whether a claimant is medically stationary, while based on medical evidence, is a legal conclusion. For example, in Maarefi v. SAIF, 69 Or App 527, 530-31 , 686 P2d 1055 (1984), we rejected a physician’s conclusion that the claimant was not medically stationary. We examined the physician’s opinion to determine if it was consistent with the statutory definition and determined that the physician used a different definition of medically stationary. See also Clarke v. SAIF, 120 Or App 11 , 852 P2d 208 (1993) (issue involving a dispute over the date the claimant became medically stationary.) The record establishes that Dr. Schieber, the attending physician, referred claimant for pain management therapy. In May 1998, Dr. Ploss, the pain management physician, agreed that claimant could benefit from pain management therapy. However, as a condition of claimant’s admission, *329 Ploss sought to rule out heroin abuse. Over the next few months, claimant gave three urine samples. The first sample was negative for opiates, but Ploss suspected it was a false negative because of a prescription drug claimant was taking. Claimant gave two more specimens, both of which came back indeterminate because the urine was so diluted that Ploss believed that claimant was consuming large amounts of water in an effort to “hide something.” In July 1998, Ploss and Schieber decided not to pursue multi-disciplinary pain center treatment and declared that claimant had become medically stationary as of May 1998. However, in September 1998, claimant again saw Schieber for chronic knee pain. A chart note from that visit states that “[claimant] would also like to reschedule pain clinic center referral. This is a complicated subject as patient has previously been denied due to concerns of urine doping while testing for drugs. Will however try again as I feel patient has chance of getting some benefit from pain clinic.” (Emphasis added.) Claimant sought to depose Schieber and Ploss concerning their opinions that claimant was medically stationary in May 1998. The fundamental consideration that the majority fails to acknowledge is the key distinction between the facts of Mathews and the facts of this case. As explained earlier, in Mathews , the petitioner had the opportunity for a full evidentiary hearing after his benefits were terminated. Here, on the other hand, claimant has no similar right. Unlike the petitioner in Mathews , claimant’s due process rights will never be satisfied if he is not given the opportunity to cross-examine the two physicians who provided expert opinions regarding the date he became medically stationary. Our dispute resolution system is premised on the belief that the adversarial system will produce the “truth” and that cross-examination is the best method for discovering the “truth.” “It may be that in more than one sense [cross-examination] takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented *330 for the discovery of truth. However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate this its wonderful power, there has probably never been a moment’s doubt upon this point in the mind of a lawyer of experience. * * * [C]ross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.” John Henry Wigmore, 5 Evidence in Trials at Common Law § 1367, 32 (1979). Claimant here is denied this fundamental tool for discovering the truth. In cases of denied compensability, both parties are entitled to cross-examine any physician. ORS 656.310(2). Fundamental fairness requires that a claimant have that same right in an extent of disability hearing. See State ex rel Juv. Dept. v. Geist, 310 Or 176, 189-90 , 796 P2d 1193 (1990) (“Fundamental fairness emphasizes factfinding procedures. The requirements of notice, adequate counsel, confrontation, cross-examination, and standards of proof flow from this emphasis.”). (Emphasis added.) Government Interest and Fiscal and Administrative Burden The final factor is the government’s interest, including any burden that additional procedural requirements would entail. ORS 656.283 grants a claimant the right to request a hearing on any issue concerning compensation, including when the claimant became medically stationary. The issue becomes whether allowing cross-examination at such a hearing creates an undue burden on the state. The burden to the state of allowing a medical expert to be deposed and cross-examined is minimal in comparison to the interest at stake. Under the administrative rules, the parties are responsible for scheduling the deposition of any expert witness. OAR 438-006-0055. The parties are responsible for the costs of any depositions. OAR 438-007-0005(3). The taking of depositions, rather than testimony at hearing, is the preferred method. OAR 438-005-0007(4). Further, a hearing will not be continued merely because a physician’s schedule would not accommodate a deposition prior to the hearing. Georgia-Pacific Corp. v. Right, 126 Or App 244 , 868 P2d 36 (1994). *331 Administrative law judges (AUs) are required to conduct an extent of disability hearing in a manner that achieves “substantial justice.” ORS 656.283(7). AUs have the experience required to conduct hearings that do not unduly burden the State of Oregon. The Supreme Court stated in Koskela that “[AUs] are expert, neutral decision-makers who can control the extent and length of testimony and can work with the parties to limit the record to written submissions when doing so is appropriate.” 331 Or at 382 . Finding the truth is the essential task at an extent of disability hearing. As previously quoted, Wigmore wrote that cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” Due process and fundamental fairness require that claimant not be denied this greatest legal engine. Claimant should be entitled to obtain depositions so as to allow him to cross-examine the medical experts. For the reasons stated in this dissent and in my separate dissenting opinions in Trujillo v. Pacific Safety Supply, 181 Or App 302 , 45 P3d 1017 (2002) (Wollheim, J., concurring in part and dissenting in part), and Mount v. DCBS, 181 Or App 458 , 46 P3d 210 (2002) (Wollheim, J., dissenting), the majority wrongly concludes that claimant does not have a constitutional right to cross-examine witnesses at his extent of disability hearing. I respectfully dissent. Armstrong, J., joins in this dissent. As interpreted by the Supreme Court in Koskela, there is no statutory right to cross-examine a physician in an extent of disability hearing. 331 Or at 375 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797651. Public record. Not legal advice.