In the Matter of the Compensation of ROBIN BEAUDRY, Claimant
WCB Nos. 20-04296, 20-03310, 20-02782
Oregon Worker Compensation
February 9, 2022
ORDER
ON REVIEW
Bottini Bottini & Oswald, Claimant Attorneys
Reinisch Wilson Weier PC, Defense Attorneys
Reviewing
Panel: Members Ceja and Curey.
Claimant
requests review of those portions of Administrative Law Judge
(ALJ) Pardington’s order that: (1) upheld the
self-insured employer’s denial of his new/omitted
medical condition claim for a cervical disc injury with upper
extremity radiculitis; (2) declined to award additional
temporary disability benefits; and (3) declined to award
penalties and attorney fees for allegedly unreasonable claim
processing. Submitting three “post-ALJ order”
documents, claimant seeks remand to the ALJ for consideration
of this proposed evidence. The employer cross-requests review
of that portion of the ALJ’s order that set aside its
denial of claimant’s new/omitted medical condition
claim for C6 nerve root impingement. On review, the issues
are remand, compensability, temporary disability, penalties,
and attorney fees.
We
adopt and affirm the ALJ’s order with the following
supplementation regarding claimant’s request for remand
and compensability of the C6 nerve root impingement
condition.
Remand
On
review, claimant submitted additional medical records
(Proposed Exhibits 150, 151, and 152) and seeks remand to the
ALJ. Those records include chart notes from Dr. Brett dated
June 8, 2021 and July 27, 2021, as well as an operative
report from Dr. Brett dated July 12, 2021. Based on the
following reasoning, remand is not warranted.
We may
remand a case to the ALJ for further evidence taking,
correction, or other necessary action if we find that the
case has been “improperly, incompletely, or otherwise
insufficiently developed.” ORS 656.295(5). Remand is
appropriate upon a showing of good cause or other compelling
basis. See Kienow ’s Food Stores v. Lyster, 79
Or App 416 (1986); Olga L. Herring, [73 Van Natta
392], 392 n 2 (2021) (same). To merit remand for
consideration of additional evidence, it must clearly be
shown that the evidence was not obtainable with due diligence
at the time of the hearing and that the evidence is
reasonably likely to affect the outcome of the case.
Compton v. Weyerhaueser Co., 301 Or 641, 646 (1986).
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