dissenting.
The essence of the dispute in this case is whether a showing of “due diligence” required claimant to pay for and compel the attendance of an expert witness at hearing. Although the majority’s opinion does not explicitly state that *495requirement, its decision accepts the rationale underlying such a conclusion, and I write to elucidate the errors in that rationale.
I add to the facts as stated by the majority only that claimant sought a continuance to allow her treating physician, Dr. Calhoun, to prepare a written report in rebutted to live testimony by SAIF’s expert, Dr. Gambee, and that SAIF had the opportunity to cross-examine Calhoun at its own expense, if it so desired. SAIF argues that to rebut SAIF’s expert required the treating neurosurgeon to sit through the hearing to determine if the neurosurgeon’s rebuttal testimony was necessary.
SAIF arrives at that conclusion by selectively construing two rules together. The first rule is OAR 438-006-0091, which states that “[cjontinuances are disfavored” but nevertheless commits to the administrative law judge’s (ALJ) discretion the ability to grant a continuance
“[u]pon a showing of due diligence 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[.]”
The second rule is OAR 438-007-0016, which requires parties to disclose prior to hearing the identity of expert witnesses to be called at hearing. SAIF argues that allowing claimant to continue the hearing for expert rebuttal evidence without fulfilling that notice requirement obviates the policy that the parties “shall be prepared to present all of their evidence at the scheduled hearing.” OAR 438-006-0091. Thus, according to SAIF, claimant did not establish due diligence.
That argument is incorrect. Nothing in the workers’ compensation statutes or administrative rules requires coupling the rules in that manner. Instead, OAR 438-007-0016 permits the ALJ, “in his or her discretion, [to] allow the testimony of expert witnesses not disclosed as required by this rule,” taking into consideration the reasons for, and any prejudice caused by, the failure to provide notice. The notice *496requirement therefore is not rigid but rather admits flexibility in order to effect “substantial justice,” which is the “overriding principle” of the claim adjudication proceedings. OAR 438-005-0035. Substantial justice allows an ALJ to deviate from “common law or statutory rules of evidence [as well as] * * * technical or formal rules of procedure” in conducting hearings. ORS 656.283(7). Furthermore, OAR 438-005-0035 requires the ALJ or Board to consider “the relative financial hardship of the parties” in determining whether continuance of a hearing is warranted.1 The touchstone of due diligence is substantial justice and not whether claimant gave timely notice of her expert’s appearance at hearing.
I believe the majority’s analysis is selective. Without any discussion, the majority explains that claimant’s mere request of her right under OAR 438-007-00232 to present rebuttal evidence does not show due diligence. The issue of the necessity of a continuance to prepare rebuttal evidence, OAR 438-006-0091(3), appears more important to the majority than due diligence. That significance reveals the underlying motive driving the majority’s analysis. The majority finds that claimant did not establish that a continuance was necessary to prepare the rebuttal evidence because claimant had Gambee’s report in advance of hearing. Further, claimant could have had her expert prepare any rebuttal testimony from Gambee’s report. The majority is primarily focused on the fact that claimant did not obtain the presence of her treating physician at hearing rather than on the ALJ’s considerations of “substantial justice” in determining whether a continuance was, in his discretion, warranted.
I believe that the ALJ correctly concluded that claimant established a need for the continuance. I think it is within the ALJ’s purview to consider that, because SAIF called Gambee to testify rather than rely on his written report, it indicated that Gambee’s testimony would differ *497from his written opinion. This was a battle between two expert witnesses on a complex issue of medical causation. The ALJ could have concluded that, if Gambee’s testimony would have been different from his report, then time was needed for claimant’s expert to rebut and respond to Gambee’s testimony. Therefore, the ALJ properly determined that substantial justice necessitated a continuance to prepare rebuttal expert evidence.3
The Board correctly noted the ALJ’s conclusion that claimant had shown due diligence in her request for a continuance. While the majority relies on the fact that the ALJ expressly failed to articulate a finding of due diligence, the ALJ implicitly found that claimant exercised due diligence in concluding that the continuance was warranted.4 The failure to expressly articulate a finding of due diligence is not fatal because we review whether, as a matter of law, the facts would support findings consistent with the ALJ’s ultimate conclusion. In deciding whether a continuance was warranted, the ALJ was required to look at the financial burden on the claimant. OAR 438-005-0035. The ALJ found substantial justice weighed in favor of the continuance due, in part, to the financial burden on claimant to require the presence of her neurosurgeon at hearing.5 Thus, due diligence did not require the presence of the expert witness at hearing.
The ALJ had additional factors by which to weigh whether claimant’s request was diligent. First, SAIF knew its expert would likely add evidence to that contained in his report. SAIF also knew that claimant, as the party with the burden of proof, had the right to present the first and last evidence. Thus, SAIF could have reasonably expected that claimant would want to present rebuttal evidence and would need time to do so, given the expert nature of the evidence. Second, claimant requested the continuance at the beginning *498of the hearing, giving SAIF notice of the continuance. Importantly, claimant requested an opportunity to submit written rebuttal testimony. That is consistent with OAR 438-007-0005, which favors written testimony over live testimony. Finally, SAIF was free to cross-examine Calhoun, if it desired to do so. This is simply not a situation where SAIF was denied fundamental fairness by claimant’s request for a continuance.
Given the financial hardship on claimant to require the presence of her expert witness at hearing, the timing of the continuance request, the nature and form of both experts’ evidence, the lack of surprise or likely prejudice to SAIF from the request, and the strong policy allowing the party with the burden of proof to present the last evidence, I conclude, as a matter of law, that claimant’s request showed due diligence. Further, the ALJ did not abuse his discretion in concluding that the continuance was warranted to achieve substantial justice.
I dissent.
It should be noted that when the injured worker brings an expert to hearing the injured worker pays the expert. When the self-insured employer or insurer demands cross-examination of the injured worker’s expert, it must pay the cost of the expert’s cross-examination.
OAR 438-007-0023 provides that “[t]he party bearing the burden of proof on an issue in a hearing has the right of first and last presentation of evidence and argument on the issue.”
Support for that conclusion can be found in the ALJ’s statement that “[claimant] has the last opportunity to rebut, and it seems to me if [claimant] hasn’t heard the testimony, [she] can’t rebut it. I’m going to hold the record open * *
Neither SAIF nor the majority disputes the fact that the question of whether claimant was duly diligent was expressly raised for the ALJ’s consideration in determining whether the continuance was warranted.
The ALJ explained that “[i]t would be ludicrous to bring somebody in here to rebut something that he doesn’t even know what it is.”