To CME or Not to CME

To CME or Not to CME
With apologies to The Bard –

“To CME, or not to CME: that is the question; Whether ‘this nobler in the mind to suffer The slings and arrows of outrageous medical opinions, Or to take arms against a CME, And by opposing end them?”

Authority for the ever-ubiquitous Commission’s Medical Exam (hereafter CMEs) can be found in C.G.S. §31-294(f) which provides in relevant part: “An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time, while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the Administrative Law Judge. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury…” The Guidelines of Cooperation provide that the CME is “selected on the premise that this physician is free of any bias or interest, thus enabling the physician to exercise independent medical judgment.” (June 10, 2023 Revision, p.20) The Workers’ Compensation Act mandates a process of informal dispute resolution to achieve the goal of fair and expeditious determination of claims. The thesis of this article is, to paraphrase a famous quote, that CMEs are like wasabi: they are very powerful and should be used sparingly. This author would argue that when they are used judiciously, they are an indispensable tool that can often move a case toward resolution quickly and fairly, but when they become the rule, rather than the exception, their pervasive use may become antithetical to the purpose of the Act.

While authority for CMEs has always been contained within the statute, their prominence became supercharged with additional thrust about 30 years ago beginning with Iannotti v. Amphenol/Spectra-Strip, 1829 CRB-3-93-9 (1995) aff’d, 40 Conn. App. 918 (1996) when the CRB announced: “Although we do not find error in the Commissioner’s failure to explain his credibility determination in this particular case, we want to stress the importance of a commissioner-ordered medical examination and the need for a commissioner to explain his or her reasoning in not crediting the examiner’s report.” The upshot of freighting CMEs with so much import is reflected in the advice that I typically gave to my own clients until about five years ago when another line of cases began to develop. Until that time, I said that a CME was not merely a tie-breaker between a treating physician’s opinion and a contrary RME; it was game over. The score was not merely two to one, it was ten to one.

The sea change or CME change began to emerge in the last five years when some intrepid Administrative Law Judges (hereinafter ALJs) began to show a willingness to diverge from the CME’s conclusions and to accept the CME simply as one more opinion. See Madden v. Danbury Hospital, 5745 CRB-7-12-4 (2013); Mauriello v. Craftsmen Litho, 6256 CRB-5-18-3 (March 22, 2019); Smith v. Regalcare at Waterbury, LLC, 6316 CRB-5-19-3 (March 10, 2020); Secula v. SBC/SNET, 6314 CRB-5-19-3.

(March 10, 2020); Goulbourne v. State of Connecticut/Department of Correction, 6329 CRB-1-19-5 (June 10, 2020); Reveron v. Compass Group, 6358 CRB-5-19-11 (Sept. 16, 2020); Rousseau v. Acranom Masonry, Inc., 6366 CRB-5-19-12 (Feb. 3, 2021) and Baldino v. Rondo of America, Inc., 6365 CRB-5-19-12 (April 7, 2021). In two of these cases, as noted in R. Carter, D. Civitello, J. Dodge, J. Pomeranz and L. Strunk, Connecticut Workers’ Compensation Law (Thomson West, Connecticut Practice Series Vol. 19, 2008) §17:13 specifically the Mauriello and Secula decisions, the CRB stated it was unnecessary for the trial commissioner to articulate the reasons why the CME’s opinion was not adopted, clearly retreating from the earlier line of cases and perhaps, thereby diluting the potency of the CME opinion. However, the authors of the treatise conclude that “…the commissioner’s examiner’s opinion is given great weight by the commissioners, and all else being equal, the commissioners will generally find in accordance with their examiners’ opinions.” Id.

With the exception of one of the above-cited cases, either the CME and/or the treating physician was deposed, and sometimes the RME. Clearly if one is going to assail the CME report, there is still a considerable financial and time-consuming burden to be successful. In two recent cases in which I needed to overcome the CME’s report, I brought in the treating physician to testify live at the formal. In both cases the ALJ was able to ask any relevant questions she needed answered on the medical issues in the case. Obviously, the cost of bringing in a physician to testify live at a formal is prohibitive and you can only do it in cases which would financially justify it. But I think in the right case a judge will be more impressed by a treating physician testifying live who can answer the judge’s questions than by a deposition transcript of an RME/CME.

Typically, a CME is ordered when the RME has an opinion which is diametrically opposed to that of the treating physician. CMEs are a necessary tool to provide the trial judge with an expert opinion on a specific medical issue in difficult, contested cases where the judge may require additional information. When the CME is used prudently, and saved in the tool bag for special occasions, it is very helpful. For example, in a case involving whether chemical exposure caused cancer in an employee, the ALJ may well need additional help from a physician of her choosing to help clarify issues of causation. Similarly, where there is a question of whether a claimant suffers from PTSD, an ALJ may want a trusted psychiatrist to weigh in, or in a case of an electrocution injury, the opinion of a CME by a neurologist may be helpful to the ALJ.

These are examples where expert testimony may help inform the ALJ’s ultimate determination as the factfinder in an area of medicine about which she has little or no knowledge. But there is a strong temptation to use the CME as a shortcut to expedite a case, to force parties into a quick resolution of the claim. Is a CME’s opinion necessary when there is a question of causality in a garden variety disc herniation injury, or to determine whether a requested medical procedure is curative or palliative? The Chairman’s office does not track the percentage of cases that settle in the wake of a CME, but my guess, based on anecdotal evidence, would be that most cases settle after a CME.

The CME is a legal fiction in which a physician chosen by the trial judge may be temporarily cloaked with special powers whereby his or her opinion is accorded extraordinary weight. The parties and the trial judge are all asked to suspend their critical powers of analytical reasoning and accept that the CME will provide an objective opinion that is difficult to challenge. Within the framework of this legal fiction, the CME’s opinion may be fairly viewed as a rebuttable presumption on the issue in question, a presumption that can only be rebutted by clear and convincing evidence to the contrary. In reality, CME physicians are mere mortals who have their own busy practices and who are allotting perhaps one hour to reviewing the indexed records and five to ten minutes examining the claimant. After all, the same doctor, who enjoys the confidence and authority conveyed by the judge appointing him or her as an expert in a hearing at 10:30 a.m. may very well be disrobed and stripped of his superpowers when that physician is relegated to the pedestrian status of a treating physician at the 10:45 a.m. hearing. It’s not as if these anointed physicians are retired or selected from some sacrosanct stable of doctors who only engage in these exams. They are deputized, artificially and temporarily vested with special authority, and endowed with a gravitas that is necessary to create this fiction. It is clearly harder to subscribe to this fiction when the ALJ unilaterally decides whom to appoint without consultation of the litigants as will be discussed below in greater detail.

There are at least several common situations in which CMEs are ordered by the ALJ. Often, it is at the request of one of the parties. There are instances in which claimants counsel has a reputable, skilled physician, (perhaps even one who has performed many CMEs) who has provided a strong opinion counter to that of an RME whose credibility, having been too long in circulation, has come to resemble a coin that has been worn a little too smooth. Or the reverse is equally possible where claimant’s counsel has a weak report from an overly enthusiastic surgeon who wishes to proceed with surgery, but a thoughtful, cautious, well-regarded RME opposes the surgery. In each of those scenarios the party hoping for the CME is mobilizing the CME as part of a favorable litigation strategy, namely, that the CME will bolster a weak case that may not survive the formal. But arguably, there has not been a sufficient joinder of the material medical issue in such a case. Why give the opposing party a free shot at suddenly improving a bad case?

Another scenario in which an ALJ will sometimes request a CME is when each of the parties has a solid report from a reputable physician. In such cases there is clearly a joinder of issues in a case that is ready to litigate. Each of the parties may be loath to introduce a new opinion into the equation, yet the ALJ orders a CME to try to move the case toward a resolution, and perhaps save administrative resources. I would argue in a case where neither of the parties wishes to have a CME, the parties should be allowed to try their cases the way they stand. It is akin to a game of Blackjack in which both players want to stand pat with the cards they have but the dealer introduces a wildcard opinion that is likely going to cause one of the litigants to fold. While it is ultimately the trial judge’s prerogative to seek an expert opinion in addition to those of the treating.

Black’s Law Dictionary defines legal fiction as “An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists-which has never really taken place.”

physician and the RME, in the above scenario the ALJ might reconsider the urge to order a CME in favor of allowing the parties to prosecute their cases with the existing opinions.

The ALJ will sometimes ask for the input of counsel in selecting this physician which may make the selection process more palatable if counsel can agree upon an acceptable physician, but more often, the trial judge keeps her own counsel on this matter. Effectively, this gives counsel an opportunity to bolster an unfavorable opinion. One might ask why opposing counsel would rebuff an opportunity for another physician to weigh in on the matter. After all, isn’t this the ultimate purpose of having a CME, by helping the trier of fact understand the medical issue in the case?

The problem with that rationale is that it invites too many unintended consequences. The standard check-in-the-box forms utilized by most ALJs do not provide essential definitions for terms, such as “substantial contributing factor” or “reasonable medical probability”, terms necessary to provide a meaningful opinion. While many of the physicians who participate in the workers’ compensation system in Connecticut are facile with such nuanced definitions, many are not. (This author attended a seminar in which an orthopedist frequently used as a CME lectured about what criteria he needed to provide an opinion “beyond a reasonable doubt” in a workers’ compensation case). Further, there are some doctors whose opinions on certain medical issues are a foregone conclusion. For example, in a case involving a dispute about a concussion, there are certain doctors who still adhere to the outdated and disproven notion that if a patient does not lose consciousness, she did not have a concussion. There are orthopedists who disregard the concept of adjacent level disc disease. There are some physicians who do not believe in chronic regional pain syndrome, and other doctors who will automatically wean any patient from narcotic medication, without exception. When these doctors are utilized as CMEs, a more jaundiced practitioner might wonder whether the humanitarian spirit of the Act is being eroded in the name of a more expeditious resolution of the case.

The language of the statute states that the scope of a CME is “to determine the nature of the injury and the incapacity resulting from the injury.” It does not authorize the use of a CME when the issue to be resolved is whether medical treatment is reasonable or medically necessary. Yet there are countless CMEs routinely ordered to determine whether opioid medication should be continued, or whether a certain surgery is reasonable, or whether a claimant has a body mass index that makes a proposed surgery unreasonable. Arguably these issues are outside the authority conveyed by the statute, and would theoretically be subject to challenge, although this author is unaware of any cases on point.

In the rare instances in which, in this author’s opinion, a CME should be utilized, this author would strongly recommend Judge Barton’s approach of allowing the litigants to prepare the letter to the CME for the judge’s signature, to make sure that the CME addresses each of the relevant issues in the case, and that the doctor understands the legal threshold and definitions of specific terms such as “a substantial contributing factor.” To go even a step further, counsel should be allowed to agree upon the CME chosen as the examiner. If counsel are allowed to participate in the selection of the CME physician and the drafting of the letter to the CME, then it is much less likely that one party will come back to the judge to ask the CME for a clarification of the report, which will make the doctors’ and the judges’ lives easier. And if counsel agree on the CME to be selected, then the criteria for the disappointed lawyer to return to the ALJ to ask for a clarification of the CME’s opinion by way of a follow-up letter or deposition should be very high indeed.

In response to the protestations of CME physicians who are frequently asked to clarify a muddy report, some judges, who ultimately have to send the request for clarification to the CME, have been reluctant to send follow-up requests to the CME, but instead, direct the litigants to take the CME’s deposition. Due to the doctors’ busy schedules, this can often take several months to organize, sometimes more. In addition, this expense is borne by the attorney requesting the deposition, which in the claimant’s case, seems particularly onerous, especially when the attorney may have objected to the CME before it was ordered. Several years ago, this author was required to drive to Glastonbury on three separate occasions to take the CME’s deposition in three installments because the physician would only allow one hour of time—at 7am. This took approximately six months to play out. In the meantime, the case was put on ice and valuable time was wasted. (It was worth the trouble, ultimately, as the ALJ ignored the CME’s negative opinion at trial). Even worse, other judges are increasingly reluctant to entertain a request to take the CME’s deposition because of their legitimate concern that doctors who are too frequently deposed may not continue to participate in our system. Clearly this line of reasoning raises some due process implications, although this author in unaware of any cases on point. Yet.

There are inevitable attendant delays occasioned by the appointment of a CME such as when the physician has an emergency surgery that preempts the CME appointment, resulting in a rescheduling delay measured in weeks, if not months. Or the CME may be habitually late in getting out his CME report, sometimes only responding after counsel has had to request a hearing or two to have the judge prod his CME to respond. Occasionally the CME is asked to comment upon one question, say whether a procedure is reasonable or necessary, and then gratuitously opines that the previously compensable injury was not causally related to work. Or, as in a case I recently tried, the CME to whom I vigorously objected, mistakenly believed he was being asked to provide his opinion about whether the claimant sustained an acute injury on a date certain rather than over a 34-year period of repetitive insult. The CME opined that there was no evidence of an accident on the last date of injurious exposure, and therefore, the “injury” was not compensable. Here again, the ALJ ignored her CME at trial, but this unnecessary detour caused a significant delay and ultimately did not assist the ALJ in deciding the issue of compensability.

Clearly every case cannot and should not be tried. Business needs to be moved, cases need to be resolved quickly and efficiently, but not at the expense of a fair and equitable resolution. There are instances in which CMEs must carry more weight than either the treating physician or the RME, especially if the litigants agree upon the CME beforehand, otherwise the legal fiction does not work its magic. At the same time, we must recognize that CMEs are neither inviolate nor invincible; they can and should be challenged when there is a legitimate basis for doing so, and when the financial ends justify the means. This is especially true when the CME is one of the “usual suspects” whose conclusion is foregone, and where the opinion is forced upon unwilling counsel. There has been a “market” correction in just how much value a CME should have, and while its value may have dropped, it still carries significant weight. If ALJs only use CMEs in the appropriately rare cases, counsel will avoid the expense and time of having to challenge them. As the old saw goes: too much of anything is good for nothing.

The Form 36: Notice of Intention to Reduce or Discontinue Payments

The Form 36: Notice of Intention to Reduce or Discontinue Payments

The Form 36: Notice of Intention to Reduce or Discontinue Payments
When a physician indicates that the claimant is capable of some type of work it means that the claimant is no longer totally disabled. In order to discontinue temporary total benefits the employers/insurers are required to file a Form 36, which must be signed by a Connecticut-licensed physician or attached to the physician’s report.

This form must be sent by certified mail to the claimant and the Administrative Law Judge in the proper District Office. The Administrative Law Judge will automatically approve the Form 36 within 15 days of receipt, unless contested by the claimant. If the notice of discontinuation is properly contested, the employer/insurer must continue to pay workers’ compensation benefits until an Informal Hearing is held on the matter.

TO THE CLAIMANT: If you receive a Form 36 and have reason to contest it…see the information on “Informal Hearings” in this Packet (beginning on page 12).
[NOTE: A Form 36 does NOT necessarily mean that ALL workers’ compensation benefits are being discontinued! For example, a claimant no longer eligible for Temporary Total Disability (TT) benefits may be entitled to further benefits for Temporary Partial Disability (TP) or Permanent Partial Disability (PPD).]

Form 43: Insurance Company

Form 43: Insurance Company Overview

Form 43 is a document commonly used in the insurance industry, primarily for the purpose of filing or reporting certain types of claims or transactions. It serves as an essential tool for both insurance companies and policyholders, ensuring the accurate reporting of specific details related to claims, coverage, and benefits.

While the exact usage and requirements for Form 43 may vary depending on the type of insurance (e.g., auto, health, workers’ compensation), it generally includes sections for the policyholder’s information, the insurance policy details, and the nature of the claim or event being reported. For example, in the context of workers’ compensation, Form 43 may be used to notify the insurance provider about an employee’s injury and initiate the claims process.

For insurance companies, this form serves as a way to maintain a record of claims filed and ensure that the necessary information is documented for processing benefits. It also facilitates compliance with legal and regulatory requirements in the insurance industry.

Policyholders may be required to complete Form 43 when submitting claims or when certain adjustments are needed to their coverage. It is crucial to fill out the form accurately and submit it promptly to avoid delays in claim processing or coverage issues.

Documentation

Work-Related Injury Documentation: A Guide

Proper documentation of work-related injuries is essential for ensuring compliance with workplace safety laws, facilitating claims, and protecting both employees and employers. Accurate records can support workers’ compensation claims, identify safety hazards, and serve as evidence in legal proceedings if necessary.

When an injury occurs, the first step is to report it immediately to a supervisor or designated workplace representative. Employers are typically required to provide an incident report form, where employees should detail the date, time, location, and circumstances of the injury. Including specifics, such as the tasks being performed and the equipment involved, adds clarity to the report.

Employers must also document the incident, including witness statements, photographs of the scene, and records of any immediate corrective actions taken. Employees should seek medical attention promptly, ensuring that healthcare providers document the injury and its connection to workplace activities. Copies of medical reports, treatment plans, and any related expenses should be kept for future reference.

Maintaining detailed records not only aids in processing workers’ compensation claims but also helps employers identify patterns or hazards that require corrective measures. Timely, thorough, and accurate documentation is key to protecting the rights and well-being of all parties involved.

Mileage Reimbursement

Mileage Reimbursement: Understanding the Basics

Mileage reimbursement is a system used by employers to compensate employees for the costs incurred when using personal vehicles for work-related purposes. This policy ensures fairness and helps cover expenses such as fuel, maintenance, insurance, and wear and tear on the vehicle.

The reimbursement is typically calculated based on a per-mile rate, which is often determined by government guidelines or company policies. In the United States, the Internal Revenue Service (IRS) sets a standard mileage rate annually, which serves as a benchmark for many organizations. Employers may also establish custom rates, but these should align with actual costs to ensure compliance and fairness.

Employees are usually required to track and report their mileage accurately. This often involves documenting details like the date, purpose of the trip, starting and ending locations, and total miles driven. Many companies use mileage tracking apps to streamline this process and ensure transparency.

Reimbursed mileage is generally not considered taxable income for employees if it falls within IRS-approved rates. For employers, offering mileage reimbursement can boost employee satisfaction and demonstrate fairness. Clear policies, effective tracking, and compliance with tax regulations are essential to implementing a successful mileage reimbursement system.

Job Searches

Job Searches

“Light Duty” Work Guidelines and Job Search
If you are released for “light duty” or “restricted” work, the Workers’ Compensation Commission suggests that you follow the procedures outlined below:

1. Apply to your employer for the type of light or restricted work your attending physician says you can do. If no such work is offered, register with the Connecticut Job Service and initiate a job search for any type of suitable work in your geographical area, even if it is not your ordinary type of work.

2. Inform the insurance carrier of your change in status and make arrangements to send a list of your employment contacts on a weekly basis to the adjuster that is handling your case. (You can find a form you may use for this purpose in the Forms section beginning on page 24 of this Packet.)

3. Confirm that the adjuster will be sending you a weekly check for temporary partial benefits for every week that your list of job searches is received. Your TP benefit rate will be equal to your original weekly benefit rate subject to the maximum and minimum benefit amounts.

4. If you find work that pays you less than what you would usually earn in your regular work, notify the adjuster. You should receive wage differential benefits from the insurer, until your attending physician either says that you can return to your regular work or you have reached your maximum level of medical improvement. You will need to send copies of your pay stubs to the adjuster in order to receive this payment, which is 75% of the difference between what you are currently earning and what you would have been earning in your original job.

Once your attending physician indicates that you have reached Maximum Medical Improvement (MMI) and issues a Permanent Partial Disability (PPD) evaluation or rating, the employer/insurer MUST issue you a Voluntary Agreement. (See pages 14-15 for information on the Voluntary Agreement and PPD). At this time, job searches are no longer necessary.

If you return to work, you may now collect your weekly pay and receive your PPD benefits. If you do not have a job at this time and the Unemployment Office deems you eligible, you may collect your PPD benefits while you are also collecting unemployment benefits. To determine whether you are eligible for these benefits, contact the nearest Department of Labor Unemployment Office (usually listed in the blue pages of your phone book).

Hearings and Appeals
Most employees with work-related injuries or illnesses will have undisputed cases in which their medical treatment, wage replacement benefits, and other benefits proceed smoothly and expeditiously. These employees will not need a workers’ compensation hearing, because there will be no dispute to settle; all parties agree on the compensability of the accident or illness and on the medical treatment and benefits due the employee as a result. However, for those cases in which there is some level of difference of opinion, disagreement, or misunderstanding, the Workers’ Compensation Act provides for several levels of hearings in which to resolve disputes.

Of all disputed cases, over 95% are settled in Informal Hearings. In a very small number of cases, usually involving very complex issues or matters of law, disputes are taken to Formal Hearings for resolution. Decisions rendered at Formal Hearings may be appealed to the Compensation Review Board (CRB). [Cases may also be appealed past the CRB to the Appellate Court and to the State Supreme Court, but this is very rare indeed.] Sec. 31-290a cases, involving Discharge and Discrimination, do not get appealed to the CRB, but directly to the Appellate Court.

Hearings may also be held for reasons other than disputes. For instance, a claimant must request an Informal Hearing before an Administrative Law Judge to request discretionary “308a” wage differential benefits or to have a scar or disfigurement evaluation.

Informal Hearings
An Informal Hearing is an informal conference held at a Workers’ Compensation Commission District Office and presided over by an Administrative Law Judge. The purpose of the conference, which usually lasts about 15 minutes, is to resolve disputes in workers’ compensation cases, or to make appropriate awards of benefits such as “308a” or scar and disfigurement benefits. An Administrative Law Judge presiding over an Informal Hearing will not “represent” either party in a case, but will serve as an impartial fact finder and mediator between the two parties. Either party—claimant or respondent—may request an Informal Hearing by contacting the District Office having jurisdiction. However, an effort must be made to resolve the dispute prior to requesting the hearing.

Both the claimant and the employer or its workers’ compensation insurance carrier attend the Informal Hearing. (An Informal Hearing will not be postponed if one party fails to attend, unless both parties have agreed ahead of time to such a postponement.) A claimant may come alone to an Informal Hearing or may come with an interpreter (if needed) and may also be represented by an attorney, union official, or other workers’ compensation representative. Employers and insurers often have an insurance adjuster and/or attorney as their representative(s).

As a claimant, you have the right to attend hearings involving your case, including when represented by counsel.
The Informal Hearing is informal in nature, simply including a discussion of the issues and evidence, and most often a recommendation by an Administrative Law Judge as to how to resolve the dispute. There are no stenographic records of such hearings.

The party requesting the hearing should clearly explain to the Administrative Law Judge any issues that are in dispute. Evidence (such as medical reports, test results, evaluations, or any documents supporting the request) should have been attached to the Hearing Request so that the Administrative Law Judge will have them in the file. After reviewing evidence presented and discussing the issues, the Administrative Law Judge will usually make a recommendation to resolve the dispute. If both parties agree, the recommendation(s) will be binding upon the parties as an award made by the Administrative Law Judge.

When a resolution cannot be determined and agreed upon in one Informal Hearing, another one is usually scheduled for more discussion, presentation of evidence, or for whatever other reason(s) the Administrative Law Judge deems necessary. In cases where the parties cannot reach agreement after one or more Informal Hearing(s), it may be necessary to request a Formal Hearing.

Pre-Formal Hearings
If an Administrative Law Judge determines that a dispute cannot be resolved informally, or one of the parties requests a Formal Hearing, a Pre-Formal Hearing may be held prior to the scheduling of the Formal Hearing. Where possible, a party who has not been represented by an attorney during the Informal Hearings may wish to consider retaining counsel, as discussed in the section on Formal Hearings (below).

The purpose of the Pre-Formal Hearing is to help the settlement of claims and to prepare a case for trial at a Formal Hearing by clarifying the issues in dispute. At the Pre-Formal Hearing, the parties should cover the issues to be decided at the Formal Hearing, the evidence that they expect to submit, the particular testimony to be addressed, and the names of persons being deposed. Once the hearing is concluded, the parties should know what the Administrative Law Judge expects of them for the Formal Hearing. They should not expect the Administrative Law Judge to consider issues or evidence, including testimony, that goes beyond the matters addressed at the Pre-Formal Hearing.

At the Pre-Formal Hearing, the parties should also agree to a timetable for preparing their respective cases. This timetable will be given to the Administrative Law Judge, who may either schedule a second Pre-Formal Hearing to confirm that the parties have followed the schedule, or proceed to schedule the Formal Hearing. The goal of a Pre-Formal Hearing is to streamline the overall process.

Formal Hearings
Unlike Informal Hearings, a “Formal Hearing” is a formal legal proceeding presided over by an Administrative Law Judge which may last up to several hours and may involve more than one session.

The purpose of Formal Hearings, like that of the Informal Hearings, is to resolve differences and disagreements. It is the second level of hearing available to adverse parties in a workers’ compensation case, although perhaps only about 3% or 4% of disputed cases ever reach this level. (NOTE: A Formal Hearing is scheduled ONLY when disputes are not resolved by an Administrative Law Judge at one or more Informal Hearings; they are NOT scheduled without previous attempts to reach agreement at the Informal Hearing level.)

Like the Informal Hearing, either party—claimant or respondent—may request a Formal Hearing, if earlier Informal Hearings have failed to produce an agreement between the adverse parties. Both the claimant and the respondent attend the hearing. Although a claimant may represent himself or herself (called “pro se”) at a Formal Hearing and they are not legally required to retain an attorney, it is almost always recommended that the claimant be represented at this level by legal counsel.

In Formal Hearings, which resemble court trials, evidence is submitted as exhibits, witnesses may be produced and provide testimony under oath, and a stenographic record of the proceedings is taken. Unlike regular court trials, however, an Administrative Law Judge is not as restricted by statutory rules of evidence or procedure. It is the Administrative Law Judge’s duty in a Formal Hearing to make inquiry (through oral testimony, deposition testimony, or through written or printed records) in a manner designed to ascertain each of the parties’ substantial rights and carry out the provisions of the Workers’ Compensation Act, as well as its intent.

Following a Formal Hearing the presiding Administrative Law Judge reviews the evidence presented, as well as any briefs filed with the Administrative Law Judge after the actual hearing, and renders a written decision called a “Finding and Award” or a “Finding and Dismissal” in which he or she issues any findings of fact and conclusions regarding the disputed issue(s) in the case. It must be delivered to both parties within 120 days after the conclusion of the hearing. This written decision is binding on all parties, unless appealed by either party to the Workers’ Compensation Commission’s Compensation Review Board (CRB).

Appeals
A small number of disputed workers’ compensation cases are appealed to the Workers’ Compensation Commission’s Compensation Review Board (CRB), which is a panel of two (2) Administrative Law Judges and the Workers’ Compensation Commission Chairman that regularly meets to review such appeals of decisions from lower level workers’ compensation hearings. The CRB may affirm, modify or reverse the decision of the Administrative Law Judge, subject to appeal to the Appellate Court.

After an Administrative Law Judge has rendered a Formal Hearing decision, either party to the claim has twenty (20) days in which to appeal the Administrative Law Judge’s decision to the CRB, which does NOT try the case again, but hears the appeal on the record of the earlier hearing. The CRB will not change an Administrative Law Judge’s decision from the earlier hearing, if that decision was based on the evidence presented. New evidence or testimony will be allowed ONLY if the CRB determines that such evidence or testimony is material and there were good reasons for failure to present it at the Formal Hearing.