54 Van Natta 1340 (2002). BROOKE E. LINDGREN, Claimant.
Case Date | August 16, 2002 |
Court | Oregon |
Oregon Worker Compensation
2002.
54 Van Natta 1340 (2002).
BROOKE E. LINDGREN, Claimant
1340In the Matter of the Compensation of BROOKE E.
LINDGREN, ClaimantWCB Case No. 01-01798ORDER ON REVIEWSchneider Et Al, Claimant AttorneysCavanagh and Zipse, Defense AttorneysReviewing Panel: Members Langer
and Biehl.Claimant requests review of
Administrative Law Judge (ALJ) Kekauoha's order that upheld the insurer's
denial of her occupational disease claim for right carpal tunnel syndrome. In
her brief, claimant argues that the ALJ erred by allowing the insurer to amend
its denial to include responsibility and by continuing the hearing for the
insurer's medical report. On review, the issues are the ALJ's procedural
ruling, continuance and responsibility. We reverse. FINDINGS OF FACT We adopt the ALJ's findings
of fact. CONCLUSIONS OF LAW AND OPINION Amendment of Denial Claimant
contends that the ALJ erred by allowing the insurer to amend its denial at
hearing to include responsibility. She relies on OAR 438-005-0053, arguing that
the insurer's responsibility denial is invalid because it did not include
information advising her to file separate claims against other potentially
responsible carriers in order to protect her right to obtain benefits. The Board's rules provide that amendments to the issues
raised and relief requested at hearing "shall be freely allowed." OAR
438-006-0031, OAR 438-006-0036; see SAIF v.
Ledin, 149 Or App 94 (1997) (a carrier may amend its denial at
hearing). Where such an amendment is permitted, to afford due process, the
responding party must be given an opportunity to respond to the new issues
raised. See OAR 436-006-0091(3); Sandra L.
Shumaker, 51 Van Natta 1981 (1999), on recon 52 Van
Natta 33 (2000). In other words, a party's remedy for surprise and prejudice
created by a late-raised issue is a motion of continuance. See
OAR 438-006-0031, OAR 438-006-0036. 54 Van
Natta 1340 (2002)1341Here, the
insurer denied claimant's occupational disease claim for right carpal tunnel
syndrome (CTS) on the basis that it did not arise out of and in the course and
scope of her employment. (Ex. 6). At the June 4, 2001 hearing, the insurer's
attorney sought to amend the denial to include responsibility. (Tr. I-1).
Claimant objected to the insurer's request, arguing
that the denial had to be amended in writing. (Tr. I-2-3, -6). The insurer's
attorney responded that claimant's remedy was to ask for a postponement. (Tr.
I-4). The ALJ allowed the insurer to amend its denial to include
responsibility, noting that the insurer's filing of an amended written response
was sufficient. (Tr. I-8). The ALJ asked claimant if she wanted a postponement
or continuance in light of the new issue, but claimant declined.
(Id.) We acknowledge that OAR
438-0005-0053(2)(c) provides that responsibility denials shall "[a]dvise the
claimant to file separate, timely claims against other potentially responsible
insurers or self-insured employers * * * in order to protect the claimant's
rights to obtain benefits on the claim." The only other potentially responsible
employer in this case is Framed Art Studios (Framed Art), which is partly owned
by claimant. The insurer points out, however, that claimant was aware of her
right to file a claim against a later...
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