Virtual Formal Hearings Are Now Mandated

On June 1, 2020, the Chief Judge of the Office of Administrative Law Judges, United States Department of Labor, issued Administrative Order 2020-MIS-00008, which provides that due to the COVID-19 pandemic, effective immediately all formal hearings will be conducted by telephone or video. A presiding ALJ may order a formal hearing in person, but only for “compelling reasons.”

The Chief Judge’s Administrative Order and Notice tolling and suspending procedural deadlines lapsed at the close of business on June 1, 2020. Beginning June 2, 2020, procedural deadlines will be determined based on applicable regulation or order of the presiding ALJ. Deadlines for filings affected by the March 23, 2020 to June 1, 2020 tolling Order can be calculated by adding the number of days remaining as of March 23, 2020 to the period after June 1, 2020, unless otherwise ordered by the presiding ALJ.

The mandate of virtual formal hearings could significantly impact how the Employer and Carrier approach the defense of claims. A telephone hearing may not allow for an assessment of a witness’ credibility. Where the credibility of the Claimant is at issue, we recommend that a video formal hearing be requested so that the ALJ can assess the Claimant and see his or her response to questioning.

However, allowing for video formal hearings also may provide a benefit. Rather than submitting medical evidence by deposition, there could be benefit to having a medical provider give live testimony via video. Parties should carefully consider the issues in a particular claim in determining which format of formal hearing will best suit the defenses raised.