In The Matter Of The Compensation Of David R. Mckenzie

• Decision Date: 14 January 2011
• Docket Number: WCB Case No. 09-06345
• Citation: 63 Van Natta 89
• Parties: In the Matter of the Compensation of DAVID R. MCKENZIE, Claimant
• Court: Oregon Workers' Compensation Division

63 Van Natta 89

In the Matter of the Compensation of DAVID R. MCKENZIE, Claimant

WCB Case No. 09-06345

Oregon Workers' Compensation Division

Entered: January 14, 2011

ORDER ON REVIEW

Unrepresented Claimant

Bruce A Bornholdt, SAIF Legal, Defense Attorneys

Reviewing Panel: Members Biehl and Lowell.

Claimant, pro se, ¹ requests review of Administrative Law Judge (ALJ) Mundorf's order that: (1) found that claimant had not established "good cause" for his untimely filed hearing request regarding the SAIF Corporation's denial of his injury claim for a bilateral shoulder condition; and (2) dismissed his hearing request. On review, the issues are good cause and the propriety of the dismissal order.

We adopt and affirm the ALJ's order with the following supplementation.

Claimant allegedly hurt his shoulders on February 12, 2009, while working as a volunteer. He did not immediately report the incident. His right shoulder symptoms improved, but those in his left shoulder did not. On July 10, 2009, he completed an 801 form reporting the incident.

On August 27, 2009, SAIF issued a denial of the claim, asserting that claimant had not given timely notice of the injury to the employer. On October 29, 2009, claimant wrote SAIF a letter, stating that he was appealing the denial. SAIF forwarded claimant's request for hearing to the Hearings Division.

In prehearing correspondence from the ALJ, claimant received a "Notice of Rights and Procedures in Workers' Compensation Hearings." Claimant obtained a postponement of the hearing to obtain legal representation. Nevertheless, claimant was unrepresented when the hearing convened.

At hearing, the ALJ read claimant a statement of his rights pursuant to ORS 183.413. The ALJ informed claimant that he could request that the hearing be delayed so that he could hire an attorney, or continued for a period of time so that he could obtain additional evidence, and that the ALJ would decide whether to grant any such request. (Tr. 2-3). The ALJ informed claimant that in addition to the timeliness issue specified in the denial, the issues at hearing would include the compensability of the injury and the allegedly late filing of his request for hearing.² (Tr. 3). The ALJ explained the legal standards for those issues. (Id.)

Claimant stated that he was surprised that the timeliness of his hearing request was an issue. (Tr. 4). Nevertheless, after discussing the issues with the ALJ, claimant did not request a continuance or indicate that he did not understand the issues. Rather, when asked if he understood the timeliness issue, claimant said, "It's clear now." (Id.)

Claimant testified that he misunderstood the deadline to request a hearing. (Tr. 10). He believed that the hearing request could be filed 60 business days, rather than 60 calendar days, after the date of the denial. (Id.) He also explained that he had not promptly attended to the denial because other personal matters had taken precedence. (Id.)

The ALJ found that claimant's request for hearing was filed more than 60 days after the denial had been mailed to claimant, and that the record did not establish good cause for the untimely hearing request. Accordingly, the ALJ dismissed claimant's hearing request.

We do not find that claimant's initial unpreparedness to address the timeliness of his hearing request warrants remand. We also do not find good cause for the untimeliness of claimant's request. We reason as follows.

An ALJ may conduct a hearing in any manner that will achieve subtantial justice. ORS 656.283(6). Our review is limited to the record developed at hearing. ORS 656.295(5). We may remand to the ALJ if we find that the case has been improperly, incompletely, or otherwise insufficiently developed. Id.

Claimant received written notice of his rights before the hearing convened. He availed himself of the opportunity to request postponement of the hearing to obtain legal representation, although he did not appear with an attorney at the hearing. At the hearing, the ALJ read a statement of claimant's rights, including the right to request a continuance to retain counsel or obtain further evidence. The ALJ also discussed the issues with claimant, which claimant stated he understood.

Although claimant did not expect to litigate the issue of the timeliness of his hearing request, he did not request a continuance at the hearing. Instead, he stated that he understood the issue. Further, he offered testimony explaining his failure to timely request the hearing.

The record establishes that claimant was fully apprised of the issues and of his rights. Under such circumstances, we do not find that the case was improperly, incompletely, or otherwise insufficiently developed. Judith Lynne, 53 Van Natta 48 (2001) (remand not warranted where the record established that the claimant was properly advised of her rights pursuant to ORS 183.413); but see Charles W. Brach, 52 Van Natta 1084 (2000) (remand warranted where the claimant was not read or otherwise made aware of his rights pursuant to ORS 183.413 and was not allowed to testify, despite his statement that he wished to correct inaccuracies in the record).

We also agree with the ALJ's reasoning regarding the untimeliness of claimant's hearing request. It is undisputed that claimant's request for hearing was made more than 60 days, and less than 180 days, after the mailing of the denial. Therefore, the hearing request confers jurisdiction on the Hearing Division only if claimant had good cause for the late filing. ORS 656.319(1); OAR 438-012-0060(2); Tracie L. Salustro, 52 Van Natta 1420 (2000). The standard for determining if good cause exists has been equated to the standard of "mistake, inadvertence, surprise, or excusable neglect." Hempel v. SAIF, 100 Or App 68, 70 (1990). Lack of diligence does not constitute good cause. Cogswell v. SAIF, 74 Or App 234, 237 (1984).

Claimant testified that he believed that his request for hearing would be timely if filed within 60 business days, rather than 60 calendar days. (Tr. 10). The denial itself, however, stated that a request for hearing must be filed "WITHIN 60 DAYS," rather than 60 business days. (Ex. 8). Claimant does not contend that he did not receive the denial or that he was misled regarding the 60-day period. Further, the record does not establish that claimant exercised diligence to determine the actual deadline for requesting a hearing.

Confusion regarding the contents of a denial does not, without reasonable diligence, constitute good cause. See John J. Wiseman, 52 Van Natta 1666 (2000) (the claimant's contention that the partial denial was confusing did not meet his burden of proving "good cause"); Bertha Vega, 45 Van Natta 378 (1993) (the claimant's inability to understand English did not establish good cause, nor did the claimant's daughter's mistaken translation...