No. 07-06589. LINDA L. SLAGLE, Claimant.

CourtOregon
Oregon Worker Compensation 2008. No. 07-06589. LINDA L. SLAGLE, Claimant In the Matter of the Compensation of LINDA L. SLAGLE, ClaimantWCB Case No. 07-06589ORDER ON REVIEWUnrepresented Claimant Reinisch Mackenzie PC, Defense AttorneysReviewing Panel: Members Langer and Biehl.Claimant, pro se, requests review of those portions of Administrative Law Judge (ALJ) Lipton's order that: (1) did not find "good cause" under ORS 656.319 (1)(b) for claimant's untimely hearing request from the self-insured employer's denial of her injury/occupational disease claim for a rectocele hernia condition; and (2) upheld employer's denial. On review, the issue is timeliness of claimant's hearing request. We affirm in part and vacate in part.(fn1) FINDINGS OF FACT We adopt the ALJ's "Findings of Fact." CONCLUSIONS OF LAW AND OPINION In April 2007, claimant filed a claim for a rectocele hernia condition. The employer denied the claim on May 9, 2007. On July 9, 2007, claimant sent a letter to the employer's claim administrator, stating that she disagreed with the denial, and that her physician, Dr. James, believed the condition was work-related. On October 12, 2007, claimant, through her then-attorney of record, filed a hearing request regarding the employer's denial. In response, the employer contended that the hearing request was untimely under ORS 656.319(1)(a) and that the claim was not compensable. The ALJ determined that claimant's request for hearing was not filed timely. In doing so, the ALJ reasoned that claimant's explanation (that she did not believe a hearing request could be filed without supporting medical evidence) did not constitute "good cause" under ORS 656.319(1)(b). The ALJ also upheld the employer's denial. Claimant requested review. A request for hearing must be filed not later than the 60th day after the mailing of the denial to claimant. ORS 656.319(1)(a). A hearing request that is filed not later than the 180th day after mailing of the denial, and where the claimant establishes at a hearing that there was good cause for the late filing, will be considered timely. ORS 656.319(1)(b). The test for determining if good cause exists has been equated to the standard of "mistake, inadvertence, surprise or excusable neglect" recognized under ORCP 71B(1). Anderson v. Publishers Paper Co., 78 Or App 513, 517, rev den 301 Or 666...

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