MATTER OF ROSS, 58 Van Natta 2737 (Or. Work. Comp. 10/26/2006), WCB Case No. 04-05670.
| Decision Date | 26 October 2006 |
| Docket Number | WCB Case No. 04-05670. |
| Citation | 58 Van Natta 2737 |
| Parties | In the Matter of the Compensation of J. BRADLEY ROSS, Claimant. |
| Court | Oregon Workers' Compensation Division |
On August 14, 2006, we abated our July 14, 2006 Order on Review that affirmed an Administrative Law Judge's (ALJ's) order that: (1) found that claimant's injury claim for an L4-5 disc condition was untimely filed under ORS 656.265; and (2) upheld the insurer's denial of the claim. We took this action to consider claimant's argument that he timely filed an injury claim, within 90 days of the claimed September 18, 2003 incident. Having received the insurer's response, we proceed with our reconsideration.
In support of his argument, claimant attaches three documents that were not admitted at hearing. These documents include a one-page "Patient Copy" of a hospital "Registration Record," dated September 25, 2003; a one-page letter, dated November 11, 2003, from the insurer to the same hospital; and a one-page statement from the hospital, indicating that the insurer was billed on October 8, 2003 for services provided to claimant on September 25, 2003. Claimant requests remand to the ALJ for admission and consideration of this proposed evidence.
Because our review is limited to the record developed at hearing, ORS 656.295(5), we consider the proposed evidence only for the purpose of determining whether remand is appropriate. Judy A. Britton, 37 Van Natta 1262 (1985). We may remand to the ALJ for the taking of additional evidence if we determine that the record has been "improperly, incompletely or otherwise insufficiently developed." Id. There must be a compelling reason for remand to the ALJ for the taking of additional evidence. See SAIF v. Avery, 167 Or App 327, 333 (2000), rev den, 331 Or 583 (2001). Moreover, to merit remand for consideration of additional evidence it must be clearly shown that relevant, material evidence was not obtainable with due diligence at the time of the hearing and is reasonably likely to affect the outcome of the case. Compton v. Weyerhaeuser Co., 301 Or 641 (1986).
As we explained in our prior order, pursuant to ORS 656.265(1),1 notice of an accident resulting in an injury must be given to the employer by the worker within 90 days of the accident. Failure to give notice within that time frame bars a claim unless the notice is given within a year of the accident and the employer had knowledge of the injury within the 90-day period referred to in subsection (1) of the statute. ORS 656.265(4)(a);2 Keller v. SAIF, 175 Or App 78, 80 (2001), rev den, 333 Or 260 (2002).
In our initial order, we found that claimant provided written notice of the claim to the insurer within one year, but more than 90 days after the claimed incident. Consequently, we reasoned that the timeliness of the claim depended on whether the employer had "knowledge of the injury" within the 90 day time period provided by ORS 656.265(1). ORS 656.265(4)(a). After considering the record developed at hearing, the ALJ's order, and the parties' arguments, we concluded that the claim was not timely, because the employer did not have knowledge of the injury within 90 days of its alleged occurrence.
On reconsideration, claimant contends that the proposed evidence would establish that he filed an injury claim within 90 days. We disagree, based on the following reasoning.
It is undisputed that the proposed evidence addresses claimant's disability. Therefore, for purposes of evaluating claimant's motion of remand, the questions are whether the proposed evidence would be reasonably likely to affect the outcome of the case and whether the proposed evidence was unobtainable with due diligence at the time of hearing. Because we answer "no" to both questions, remand is not appropriate. We reason as follows.
Neither the November 11, 2003 letter from the insurer to the hospital nor the hospital billing statement (addressed to claimant) refer to a work injury or otherwise alert the employer or its insurer to the possibility that workers' compensation liability was a possibility. See Colvin v. Industrial Indemnity, 301 Or 743, 747 (1986) (); Godfrey v. Fred Meyer Stores, 202 Or App 673, 689 (2005) (). The "Patient Copy" of the hospital "Registration Record" does indicate that claimant reported an "on the job" accident to the hospital on September 25, 2003. However, this document does not indicate that it was provided to the employer or the insurer before the hearing. Instead, because it was the "Patient Copy," it appears that claimant alone had it.3
Thus, although the proposed evidence indicates that the insurer received notice of a hospital billing (but not notice of a work injury) within 90 days of the claimed incident, it does not indicate that the employer or the insurer had notice of any such work incident within the same 90 days.4 Under these circumstances, we conclude that the proposed evidence would not be likely to affect the outcome of the case, i.e., establish that the claim was timely filed under ORS 656.265.
Moreover, although the insurer's correspondence with the hospital (and the hospital bill submitted to the insurer) were probably not obtainable by claimant,5 the hospital patient registration form regarding claimant was "obtainable," because the form indicates that it was provided to claimant and he testified that he provided information on the form when it was filled out. (Tr. 14).
Finally, because claimant does not contend that he provided his hospital registration record to the employer or the insurer within 90 days of the incident reported therein (and the proposed evidence does not establish that either the employer or the insurer were otherwise notified or had...
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