I-2-1-45.Parties to the Hearing

Last Update: 8/29/14 (Transmittal I-2-116)

A. General

Any individual is a party to a hearing if:

  • He or she was a party to the initial, reconsidered, or revised determination; or

  • He or she shows in writing that his or her rights may be adversely affected by the hearing; or

  • The individual's rights may be adversely affected by the administrative law judge (ALJ) decision or dismissal.

See 20 CFR 404.932 and 416.1432.

However, note the following special situations:

  • A wage earner's (WE) survivor (widow(er), surviving divorced spouse, mother or father, or surviving child) has the same rights as a WE to appeal a change in or refusal to change the WE's earnings record. The survivor in such a case does not need to establish that he or she would be adversely affected by the ALJ's decision to be made a party to the hearing. A timely filed request in writing to be made a party to the hearing is sufficient.

  • When a request for hearing involves a determination regarding the crediting of self-employment income between a married couple, the ALJ will make both individuals parties to the hearing because the ALJ's decision regarding the income of one of the parties may adversely affect the rights of the other.

  • Workers' compensation representatives are not parties to the hearing. ALJs will deny requests to intervene filed by workers' compensation representatives.

  • If a claimant dies after filing a request for hearing, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-50 for substitute party issues and HALLEX I-2-4-35 for instructions on dismissals due to the death of a claimant.

B. Informing Individuals Who Are Parties to the Hearing

When the hearing office (HO) staff has identified the parties, the ALJ must inform each party of his or her rights, unless the individual waives his or her right to be a party to the hearing.

NOTE:

See HALLEX I-2-4-30 for information about a proper party for purposes of filing a request for hearing.

C. Multiple Parties

When there are multiple parties involved in a claim(s), one ALJ will have jurisdiction to resolve the issues for all parties. The ALJ will obtain testimony in one hearing if possible. The ALJ may allow the parties to testify in the presence of each other unless the ALJ determines it is not appropriate, or one or more of the parties requests to testify separately and the other parties consent. Additionally, subject to objections under HALLEX I-2-0-21, the ALJ may direct any party to the hearing to appear by video teleconferencing (VTC) or, in extraordinary circumstances, by telephone. See HALLEX I-2-1-45 D below.

The ALJ will issue one decision that addresses all issues and incorporates the proceedings of the hearing and any supplemental hearing. When the ALJ issues a decision, he or she will send copies to all parties with notice of the right to request review by the Appeals Council. For more information about ALJ decisions, see HALLEX I-2-8-0.

For more information on joining multiple cases in one hearing, see HALLEX I-2-1-65 B and I-2-6-60 D.

NOTE:

When corresponding with one party, an ALJ or HO staff must not disclose information about another party that is not relevant to the issues in the case and which the other party has requested that the agency not disclose. For example, an ALJ must not disclose a party's address to another party if the party has requested that it not be disclosed. If the address appears on an exhibit that must be disclosed, the HO staff must disclose only a copy of the exhibit with the address redacted. See also HALLEX I-1-4-3 E and I-2-1-15.

D. Geographic Considerations

The ALJ will not deny any proper party the right to a hearing or the right to present evidence because of geographic considerations. ALJs will encourage all parties, regardless of location, to attend the hearing. The ALJ will determine if a claimant or other party to the hearing will appear in-person, by VTC, or by telephone. See HALLEX I-2-0-15 for an overview of hearings by VTC or telephone. When a party is unable to attend a hearing, the ALJ may consider the following options:

  • The ALJ may schedule a supplemental hearing.

  • If a party requests to present sworn testimony instead of attending a hearing, the ALJ may use the procedures in HALLEX I-2-6-20.

E. Waiver of the Right To Appear at the Hearing

A claimant may waive the right to appear at an oral hearing and request that the ALJ decide the case on the evidence of record. The regulations also provide that the ALJ may schedule a hearing notwithstanding the waiver if he or she believes a personal appearance and testimony from the claimant are necessary to properly decide the case. See 20 CFR 404.950(b), 416.1450(b), and HALLEX I-2-6-1.

1. Receipt of Waiver

If a claimant states in the request for hearing that he or she waives the right to appear at a hearing, or otherwise notifies the HO that he or she waives the right to appear, the ALJ or the HO staff will take the following actions:

  • If the claimant is unrepresented, advise the claimant of the right to representation.

  • Advise the claimant of the advantages of appearing at a hearing; ensure that the claimant is fully advised of the possible consequences of his or her waiver; and explain that even though he or she has waived the right to appear, the ALJ may schedule and conduct a hearing if the ALJ deems it necessary.

  • If the claimant still elects to waive the right to appear at a hearing, obtain written documentation of the claimant's election on a Form HA-4608, Waiver of Right to Oral Hearing. To access Form HA-4608, access the Document Generation System (DGS), click on “Correspondence,” then click on “Prehearing” and then click on “Waiver of Oral Hearing.”

NOTE:

If a claimant waives the right to a hearing, the ALJ must afford the claimant the right to submit written comments, responses to interrogatories, or other evidence. See HALLEX I-2-7-0.

2. Prehearing Conference

An ALJ may schedule a prehearing conference, when necessary, to narrow and clarify issues. See HALLEX I-2-1-75. In region 1, see also 20 CFR 405.330.

3. Hearing Despite Waiver

When an ALJ schedules a hearing after the claimant has waived the right to a hearing, the ALJ will issue a more detailed notice of hearing to specify the facts and issues that require development at an oral hearing.

If an ALJ schedules and holds a hearing despite a waiver, the ALJ must proffer any evidence received at the hearing, unless the claimant also waived the right to examine the evidence and/or appear at a supplemental hearing. See HALLEX I-2-6-1, I-2-7-30, and I-2-7-35.

If the claimant or the representative does not appear at the scheduled hearing, the ALJ will explain in the decision:

  • The reason for requesting the claimant's appearance and the ALJ's efforts to put the claimant on notice of the need for the hearing; and

  • Any adverse presumptions regarding credibility, weight of the evidence, etc., which arose from the claimant's refusal to appear.

NOTE:

If circumstances suggest a representative is routinely advising his or her clients to waive appearance at a hearing or to ignore a scheduled hearing despite the waiver, the ALJ will ensure the claimant received notice that failure to appear at the scheduled hearing could jeopardize successful resolution of the claim and take any other necessary action to adjudicate the claim. The ALJ will also consider submitting a referral to the Office of the General Counsel under HALLEX I-1-1-50 for possible representative misconduct.