TN 4 (02-90)
DI 33015.032 Continuance of Disability Hearing
The adjourning and reconvening of the disability hearing at a later date.
2. Expert witnesses
Individuals who can offer professional testimony with regard to the claimant's impairment(s) or ability to work, i,e., physicians, recognized vocational experts, etc.
Continuances occur when either the claimant, representative or one or more witnesses have good cause (see CFR 404.914(c)(2) and 416.1414(c)(2)) for failing to appear at the scheduled hearing.
Continuances may be granted at the request of whoever appears at the hearing. (Those cases in which no one appears (or asks for postponement) are considered “No shows” and are decided on the record.)
The DHO is responsible for deciding whether to grant a continuance.
NOTE: See C. below for some factors to be used in assessing whether to allow a continuance initiated by the claimant.
Continuances may also be initiated by the DHO, e.g., when it appears at the hearing that an interpreter is unqualified to serve.
1. Claimant/Representative fails to appear
Elicit an explanation of the failure to appear as well as an allegation that the person's presence is necessary from the individual who has appeared and requested the continuance.
Explore the possibility of holding the hearing with the claimant or representative who has appeared. Make it clear that you will continue the hearing at a later date if the person appearing does not wish to proceed or if you believe the non-appearing person is crucial to that hearing.
Example: A claimant's attorney does not appear—claimant agrees to begin the hearing without the attorney; however, during the hearing the claimant alleges he does not wish to continue without the attorney. Adjourn and reconvene the hearing so the attorney can be present.
Use judgment in deciding whether to grant another continuance if more than one has already been granted.
2. Witness fails to appear
Hold hearing as scheduled.
Decide at the conclusion of the hearing if a continuance is warranted to obtain testimony from the absent witness(es).
Explain that the hearing is the necessary first step in determining if witness testimony is needed if the claimant/representative refuses to proceed with the hearing. Also explain that if the hearing is not held, the case will be decided on the record. Ensure that everyone understands the consequences of refusing to proceed.
Consider the following factors in deciding whether to grant a continuance for all witnesses. Use these factors as a balancing test and use discretion and judgment in making the decision.
Whether there is good cause for why the witness did not attend the hearing (emergency, surgery, etc.). Determine when the claimant (representative) was aware that the witness could not attend and whether an attempt was made to postpone the hearing.
Whether the testimony of the non-appearing witness is material or relevant to the disability determination. This will be based on a review of the entire record, including the evidence adduced at the hearing. This factor may play a critical role in the case of expert witnesses, e.g., the DHO may question the physician and elicit testimony on particular points in the adjudication process which may not be reflected in medical reports previously submitted.
Annotate the hearing report form to reflect that a continuance was requested and its disposition.
If continuance granted:
document the DHU and claims folder to reflect that the case was continued, at whose request, and the reason why granted,
schedule another hearing for the earliest date possible, and
assign the case to the same DHO if a substantive action was taken.