Chapter §4.48 STANDARD OF REVIEW

• Jurisdiction: Oregon

B. (§4.48) Standard of Review

As a consequence of legislative changes in 1987, the court's standard of review changed from de novo review to substantial evidence for factual matters. "[R]eview by the Court of Appeals shall be on the entire record forwarded by the [Workers' Compensation] board. Review shall be as provided in ORS 183.482 (7) and (8)." ORS 656.298(7). Substantial-evidence review limits the court's review to errors of law, abuse of agency discretion, or inconsistency with an agency rule, violation of a constitutional or statutory provision, or lack of substantial evidence to support the board's order. The court has the ability, depending on the circumstances of the case, to affirm, reverse, set aside, or modify the order, or remand to the board for further action. ORS 183.482(8). See 2 Workers' Compensation §§19.10-19.13 (OSB Legal Pubs 2008). In Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988), the court construed the new law as follows:

If an agency's finding is reasonable, keeping in mind the evidence against the finding as well as the evidence supporting it, there is substantial evidence. . . For instance, and in a context which is likely frequently to occur in workers' compensation cases, if there are doctors on both sides of a medical issue, whichever way the Board finds the facts will probably have substantial evidentiary support. [The appellate court] would not need to choose sides. The difference between the "any evidence" rule and the substantial evidence test in ORS 183.482(8)(c) will be decisive only when the credible evidence apparently weighs overwhelmingly in favor of one finding and the Board finds the other without giving a persuasive explanation.

ORS 183.482(8)(c) provides, "[s]ubstantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." The court in Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990), held that the substantial-evidence test is whether substantial evidence exists to support the board's decision, not...