70 Van Natta 1856 (2018)
In the Matter of the Compensation of JOHN KRAMER, Claimant
WCB Nos. 16-04007, 15-04048
Oregon Worker Compensation
December 26, 2018
Phillips Polich, Claimant Attorneys.
MacColl Busch Sato PC, Defense Attorneys.
Reviewing Panel: Members Lanning and Woodford.
ORDER ON REVIEW
requests review of those portions of Administrative Law Judge
(ALJ) Sencer's order that: (1) excluded the testimony of
a physician presented by claimant under OAR 438-007-0016; and
(2) upheld the insurer's denial of claimant's
new/omitted medical condition claim for post-traumatic stress
disorder (PTSD). On review, the issues are the ALJ's
evidentiary ruling and compensability.
adopt and affirm the ALJ's order with the following
hearing, the parties agreed that claimant did not provide
timely notice of an intent to call a physician (Dr. Silvey)
as a witness. See OAR 438-007-0016. The
ALJ found that the carrier was materially prejudiced by the
lack of notice, and that claimant's former counsel's
admission that he was unfamiliar with the Board's
"notice" rule did not constitute "good
cause" that outweighed the material prejudice. Under
such circumstances, the ALJ excluded the physician's
review, claimant challenges the ALJ's evidentiary ruling.
Specifically, he argues that the insurer effectively waived
its objection to the testimony when it declined to depose Dr.
Silvey or obtain a rebuttal report, but rather proceeded with
the hearing. For the following reasons, we find no abuse of
discretion in the ALJ's evidentiary ruling.
review the ALJ's evidentiary ruling for an abuse of
discretion. SAIF v. Kurcin, 334 Or. 399, 406 (2002).
An ALJ is not bound by common law or statutory rules of
evidence and may conduct a hearing in any manner that will
achieve substantial justice. ORS 656.283(6). If the record
would support the ALJ'sdecision regarding admission of
evidence, then the ALJ's ruling is not an abuse of
discretion. See Kurcin, 334 Or. at 409; Michelle
D. Johnson, 69 Van Natta 1607, 1608 (2017).
OAR 438-007-0016, a party shall disclose to the other
parties the identity of each expert witness the party will
call to testify at the hearing. That disclosure shall occur
within the times provided for the initial exchanges of
exhibits/indexes (i.e., not less that 14 days before
the hearing or within seven days of claimant's receipt of
the carrier's index and documents, whichever is later).
OAR 438-007-0016 further permits an ALJ to exclude the
testimony of an expert witness whose identity has not been
disclosed within the times prescribed under OAR
438-007-0018. However, the administrative rule...