In re Compensation of Kramer, 122618 ORWC, 16-04007

Docket Nº:WCB 16-04007, 15-04048
Case Date:December 26, 2018
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
          Jodie Phillips Polich, Claimant Attorneys.           MacColl Busch Sato PC, Defense Attorneys.           Reviewing Panel: Members Lanning and Woodford.           ORDER ON REVIEW          Claimant 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.          We adopt and affirm the ALJ's order with the following supplementation.          Evidence          At the hearing, the parties agreed that claimant did not provide timely notice of an intent to call a physician (Dr. Silvey) as a witness.[1] 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 testimony.          On 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.          We 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).          Under OAR 438-007-0016,[2] 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.[3] However, the administrative rule...

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