SAIF Corp. v. Kurcin

LANDAU, P. J. Employer seeks review of an order of the Workers’ Compensation Board (Board) reversing employer’s denial of the compensability of claimant’s claim. Employer contends that the Board erred in granting claimant a continuance of the hearing without requiring claimant to show due diligence and the necessity of the continuance. We agree with employer and reverse and remand for reconsideration. The relevant facts are not in dispute. Claimant filed a claim for a herniated disc, which employer denied. Claimant requested a hearing. Well before the hearing, employer notified claimant that its medical expert would testify and employer provided claimant with a copy of the expert’s complete medical report. On the day of the hearing, claimant requested a continuance to prepare rebuttal testimony to the testimony of employer’s expert. Claimant cited a single ground for the continuance, namely, that, as the party with the burden of proof, she was entitled to present the last evidence: “Your honor, we have one more matter to take up prior to testimony, and that is if Dr. Gambee, in fact, testifies today, I would like the record left open to have a transcript submitted to the attending physician, Dr. Calhoun, for him to review and comment on. That is pursuant to Administrative Rule 438-007-[0]023, which states the party bearing the burden of proof has the right to present the last evidence. And, in this case, I will not have the opportunity to present the last evidence because Dr. Gambee will be the last evidence regarding compensability. So, based upon that rule on the fundamental fairness of Workers’ Compensation, we ask to have Dr. Calhoun comment on Dr. Gam-bee’s testimony.” Employer objected on the ground that it had informed claimant of its intention to call its expert four weeks before the hearing. Employer argued that it was incumbent upon claimant to explain why she could not have requested the continuance earlier. Claimant’s only response was that: “It may well be that after I hear Dr. Gambee testify that I don’t need to exercise that right. I, at least, want to have the opportunity.” [492] Claimant offered no explanation why the advance copy of the expert’s medical report did not afford her a reasonable opportunity to prepare her for cross-examination or rebuttal. The administrative law judge (ALJ) agreed with claimant. He stated as the reason for permitting claimant a continuance the rule that claimant “has the last opportunity to rebut.” According to the ALJ, claimants always are entitled to a continuance to rebut, because “if [s]he hasn’t heard the testimony, [s]he can’t rebut it.” The ALJ did not specifically find that claimant had acted with due diligence. When pressed by employer on the point, the ALJ at one point stated that he did not know whether claimant had exercised due diligence and at another point stated that he was not finding that claimant was not diligent. Nor did the ALJ address why, in view of the disclosure of employer’s expert’s medical report in advance of the hearing, a continuance was necessary to afford claimant a reasonable opportunity to prepare rebuttal. The Board affirmed on the ground that the ALJ had made a finding of due diligence and necessity and that he had not abused his discretion in doing so. It is that ruling that employer challenges. According to employer, applicable administrative rules require a showing of due diligence and a demonstration that a continuance is necessary to afford a reasonable opportunity to prepare rebuttal evidence. In this case, employer contends, claimant made no such showing. Claimant argues that such a showing is not required. She argues that, as the party bearing the burden of proof, she always has the right to present rebuttal: “Given that the party carrying the burden of proof has the opportunity for the last presentation of the evidence, pursuant to the administrative rule, requesting the right to rebut represented due diligence. OAR 438-007-0023.” According to claimant, merely requesting the continuance entitled her to the continuance. Whether to grant a continuance is a matter committed to the discretion of the Board. That discretion, however, is not without limit. In reviewing the Board’s decision, therefore, we apply the following standard: [493] “We will reverse the Board’s decision to grant claimant’s request for a continuance if the Board acted outside the range of discretion delegated to it by law or if it acted inconsistently with its own rules, because those rules are as binding on the agency as if the legislature itself had enacted them.” Georgia-Pacific Corp. v. Right, 126 Or App 244, 246, 868 P2d 36 (1994). OAR 438-006-0091 provides that “Continuances are disfavored.” It further provides that “[u]pon a showing of due diligence” a claimant may obtain a continuance “if necessary to afford reasonable opportunity for the party bearing the burden of proof to obtain and present final rebuttal evidence or for any party to respond to an issue raised for the first time at a hearing.” OAR 438-006-0091(3). By the terms of the applicable rules, to obtain a continuance, a claimant must establish “due diligence” and the necessity of the continuance “to afford a reasonable opportunity * * * [to] present final rebuttal evidence.” Id. In this case, claimant made no such showing. Her contention was that she did not need to make the showing, because, as the party bearing the burden of proof, she always has the right to put in the proverbial last word. Claimant’s argument, of course, is a non sequitur. It simply does not follow that, because one has the right to rebut, one also has the right to a continuance. Claimant and the dissent contend that she could not have shown necessity at the hearing, because she had not yet heard the expert’s testimony. The argument fails to account for the fact that employer, in accordance with applicable Board rules, disclosed both the identity of the expert and the full text of the medical report before the hearing. Claimant and the dissent insist — for the first time on review — that the continuance was necessary, because there was a risk that the expert would change his testimony. That, however, is a risk in any case. The rules, moreover, contemplate just that problem. If a claimant reasonably is surprised by a change in an expert’s testimony, then the claimant will have little difficulty establishing his or her need for a [494] continuance at that time. OAR 438-006-0091(3) expressly provides for a continuance to respond to an issue raised for the first time at a hearing. The dissent suggests that the continuance also was justified by considerations of substantial justice, including in particular, the financial hardship involved in requiring claimants to bring expensive experts to hearing. No one in this case, however, has suggested that claimant suffered a financial hardship, that financial hardship was the basis for the continuance request, or that the ALJ relied on financial hardship as a basis for the continuance. Considerations of financial hardship, therefore, are beside the point. The ALJ’s decision must be reviewed on the basis of the decision that he made, not on the basis of a decision that he might have made. Moreover, no one has argued that claimants always must bring an expensive expert to hearing, or that claimant in this case was required to do so. As we have explained, the rules are designed to avoid just that problem. They require employers to provide advance notice of their expert testimony. The point of those rules is to enable claimants to evaluate in advance of the hearing whether they will be required to retain an expert for rebuttal purposes. If the testimony at hearing turns out to be different from what the employers advertised, the rules make clear that claimants then will have grounds for a continuance to prepare appropriate rebuttal. There is no danger of requiring claimants to incur unreasonable expenses. The dissent’s complaint thus amounts to the pummeling of a straw man. We conclude that claimant made no showing of diligence or necessity, which OAR 438-006-0091(3) requires as a predicate to obtaining a continuance. The Board therefore erred in upholding the ALJ’s decision to allow the continuance. Reversed and remanded for reconsideration.