I-2-5-44.Action When ALJ Receives Medical Expert's Responses to Interrogatories
Last Update: 9/28/05 (Transmittal I-2-68)
When the ALJ receives an ME's response to his or her interrogatories, the ALJ must:
Provide a copy of the response to the claimant and the representative and notify them of the right to comment, submit further relevant evidence, propose additional interrogatories to the ME, and request a supplemental hearing with opportunity to question the ME at the supplemental hearing. The ALJ will provide the claimant and the representative with the opportunity to review the ME's response before making it an exhibit, unless they have waived the right to examine the evidence or the evidence supports a fully favorable decision. (See I-2-7-30, Proffer Procedures; I-2-7-35, Entering Posthearing Evidence; I-2-5-91, Sample-Letter to Representative Enclosing Copy of New Evidence; I-2-5-92 Sample-Letter to Unrepresented Claimant Enclosing Copy of New Evidence and I-2-6-99 Sample Waiver By Claimant of Right to Inspect Evidence After the Hearing.)
Rule on any objection or request by the claimant or the representative regarding the ME's response to the interrogatories. The claimant or representative may propose submission of additional interrogatories to the ME or request a supplemental hearing with opportunity to question the ME at the supplemental hearing. The claimant is entitled to ask the ME questions to the extent necessary to inquire fully into the matters at issue.
If the claimant requests a supplemental hearing, the ALJ must grant the request, unless the ALJ receives additional documentary evidence that supports a fully favorable decision. If the claimant requests the opportunity to question the ME at the supplemental hearing, the ALJ should apply the provisions of I-2-5-30, Medical or Vocational Expert Opinion — General, and I-2-5-40, Obtaining Medical Expert Opinion After the Hearing, to determine whether live testimony in person, by telephone, or by video teleconference is the most appropriate method to obtain the ME evidence.
If the ALJ requests the ME to appear at the supplemental hearing, and the ME declines to appear, the ALJ should apply the provisions of I-2-5-78, Use of Subpoenas — General, to determine if the claimant should be afforded use of the subpoena to compel the ME to appear. If a subpoena is issued, the procedures in I-2-5-80, Preparation and Service of a Subpoena, and those in I-2-5-82, Noncompliance with a Subpoena, apply.
Mark as exhibits and enter into the record all correspondence between the ALJ and the ME, admissible questions and responses, additional interrogatories and responses, and proffer documents, and include in the hearing decision the rationale for ruling against any objection.