TN 11 (01-13)
DI 33015.021 Claimant Does Not Appear at Disability Hearing or Waives Right to Appear at Disability Hearing
A. Policy if claimant does not appear or waives right to appear
If a claimant waives his or her right to appear at the hearing, or does not appear (and there are no special handling circumstances), a disability hearing officer (DHO) will prepare a decision and issue the decision based on the information in the claims file. The decision will include any additional evidence obtained that results from the request for reconsideration.
NOTE: If a person requests a disability hearing but fails to attend the scheduled hearing, the DHO must be alert to special handling considerations.
B. Procedure if claimant does not appear
1. Claimant does not appear at requested hearing
The DHO must consider special handling considerations. These include:
Limited English Proficiency (LEP), and
communication-related disabilities (vision, speech, or hearing).
Follow procedures for special handling if the facts of the case indicate that the claimant needs accommodation or assistance to cooperate with a request to attend the hearing.
In any special handling situation:
carefully consider any request for accommodation (e.g., interpreter, additional time to comply);
NOTE: If POMS does not provide relevant instructions, consult your local business procedures.
document your actions in response to any request for accommodation; and
involve a designated third party whenever appropriate. See guidelines for involving appointed representatives, applicants, and third-party contacts with requests for claimant evidence or action in DI 23007.005D.
If the DHO can make a favorable determination without the claimant’s presence at a hearing, then the DHO will make the determination. If the DHO cannot make a favorable determination without the claimant’s presence at a hearing, and if any special handling situations are present, the DHO must attempt to contact the claimant by phone or call-in letter to determine if there was good cause for not attending the scheduled hearing. If the claimant does not respond to the call-in letter (or the claimant does not make phone contact) within 15 days, no good cause will be found and the DHO will make a determination based on the evidence of record. If there is good cause, reschedule the hearing to a different date.
The DHO may also reschedule a hearing if there is some unusual or unavoidable circumstance that prevented the individual from appearing at the scheduled hearing.
2. Writing the DHO’s determination
When writing the DHO’s determination, follow the instructions in DI 33015.020 with the following exceptions:
Focus independently on those relevant items necessary on the “Disability Hearing Officer's Report of Disability Hearing.” For example, rather than eliciting the issues that the DHO will decide at the hearing, frame the issues by reference to the documentary evidence. Also, evaluate any new documentary evidence submitted.
Remember the DHO may use observations the claims representative makes since they are part of the documentary evidence.