OR-OSHA v. Loy Clark Pipeline, Co.

OAR 438-085-0526 provides: “(1) Unless otherwise provided by the Administrative Law Judge, amendments to the citation and to the request for hearing, including affirmative defenses, shall be allowed up to the date and time set for hearing. (2) An amendment made by OR-OSHA under this rule may not allege a new violation or increase a penalty.”

Oregon Occupational Safety and Health Administration (OR-OSHA) sought review of a Workers’ Compensation Board order which concluded that OR-OSHA failed to establish a violation arising from an excavation in NW Portland. Prior to the hearing, OR-OSHA filed an amendment to the original citation, which was dismissed by the Administrative Law Judge (ALJ), requiring OR-OSHA to proceed at the hearing on the original citation. On review, OR-OSHA assigned error to the ALJ’s decision to strike the amended citation because OAR 438-085-0526 provides OR-OSHA the right to amend a citation until the date and time set for the hearing. OAR 438-085-0526 provides: “(1) Unless otherwise provided by the Administrative Law Judge, amendments to the citation and to the request for hearing, including affirmative defenses, shall be allowed up to the date and time set for hearing. (2) An amendment made by OR-OSHA under this rule may not allege a new violation or increase a penalty.” The Court reasoned that the words “shall be allowed” provided a limitation on the ALJ’s authority to restrict amendments to either the citation or responsive pleadings. The Court held that an ALJ may limit when amendments are allowed but must inform the parties if they require an amendment to be served and filed at a time earlier than the “date and time set for hearing.” Reversed and remanded.