54 Van Natta 1340 (2002). BROOKE E. LINDGREN, Claimant.
|Case Date:||August 16, 2002|
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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