73 Van Natta 223 (2021)
In the Matter of the Compensation of LEE J. WOLBERT, Claimant
WCB No. 19-03031
Oregon Worker Compensation
March 29, 2021
Unrepresented Claimant
Reinisch Wilson Weier, Defense Attorneys
Reviewing Panel: Members Woodford and Ousey.
ORDER ON REVIEW
Claimant,
pro se,1 requests review of Administrative Law
Judge (ALJ) Fulsher’s order that upheld the
self-insured employer’s denial of his new/omitted
medical condition claim for a right rotator cuff condition.
With
his appellant’s brief, claimant submitted medical
documents which were already present in the record. (Exs. 15,
58, 64, 68). Additionally, claimant submitted written
material containing factual statements that were not admitted
into the record at hearing. Because our review is limited to
evidence admitted at the hearing, and excludes new evidence,
we treat this submission as a motion for remand to the ALJ
for the taking of additional evidence. See ORS
656.295(5); Judy A. Britton, 37 Van Natta . On
review, the issues are remand and compensability.
We
adopt and affirm the ALJ’s order with the following
supplementation regarding the remand issue.
We may
remand to the ALJ if we find that a case has been improperly,
incompletely, or otherwise insufficiently developed. ORS
656.295(5). There must be a compelling reason for remand to
the ALJ for the taking of additional evidence. SAIF v.
Avery, 167 Or.App. 327, 333 (2000). A compelling reason
exists when the new evidence: (1) concerns disability; (2)
was not obtainable at the time of the hearing; and (3) is
reasonably likely to affect the outcome of the case.
Id.; see Compton v. Weyerhaeuser Co., 301
Or. 641, 646 (1986).
[73 Van
Natta 224] Here, claimant submitted documents which were
already contained in the record. (Exs. 15, 58, 64, 68). The
documents concerned claimant’s disability, as they
referenced dysfunctions to the right shoulder rotator cuff,
including right subacromial bursitis and right shoulder
tenderness. Yet, as previously held by the ALJ, these
documents did not address...
