One of the easiest ways to contribute to a law blog is to look at your e-mail outbox. What issues have been discussed or litigated lately? In this post, I am going to share a few thoughts about venue–the location of an injured worker’s formal hearing.
Keep two distances in mind: 75 miles and 100 miles. The relevant statutes and regulations use both distances, but for different reasons. First, formal hearings typically take place within 75 miles of the claimant’s residence unless there is good cause for having the formal hearing elsewhere. See 20 C.F.R. § 702.337. The 75-mile rule is not an absolute edict; it is a guideline.
The 100-mile rule applies to witnesses who are not parties to the litigation. Basically, courts cannot require non-party witness to travel more than 100 miles. Section 24 of the Longshore and Harbor Workers’ Compensation Act provides a 100-mile jurisdictional limit for witnesses. See 33 U.S.C. § 924. This 100-mile boundary is echoed in the new Rules of Practice and Procedure Before the Office of Administrative Law Judges. Rule 18.55 discusses the use of depositions when “the witness is more than 100 miles from the place of hearing . . . .” See 29 C.F.R. § 18.55(a)(6)(ii). The 100-mile limit is also mentioned in Rule 18.56. A subpoena ordering a witness’s attendance may be quashed if it requires a non-party “to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person . . . .” See 29 C.F.R. § 18.56(c)(3)(i)(B); see also 29 C.F.R. § 18.56(c)(3)(ii)(C) (permitting a judge to quash or modify a subpoena if it requires a “person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend the formal hearing.”)
So, what if a party wants to have the formal hearing more than 75 miles from the claimant’s residence? Does it matter whose asking for the venue change? I think so. More likely than not, the claimant will ask for the venue change to get a faster formal hearing. The Benefits Review Board has referred to the 75-mile rule as an “option” for a claimant. See Stokes v. George Hyman Constr., 19 BRBS 110, *4 (1986). Still, the decision whether to grant a change in venue falls within an administrative law judge’s discretion. See Jordan v. Dyncorp Int’l, LLC, 2016 WL 1403226 (Ben. Rev. Bd. Mar. 7, 2016).
Pulling everything together, the rules obviously permit a party to request a hearing location outside of the 75-mile radius established for a claimant’s benefit. In my opinion, a claimant can choose to waive the 75-mile rule, which the Board referred to as an “option,” provided that the claimant can demonstrate the existence of good cause. Perhaps good cause exists when a claimant receives no medical or indemnity benefits and their health and financial solvency is dwindling rapidly. The assigned administrative law judge has discretion to determine whether the motion to change locations should be granted. The judge will weigh competing interests, such as the gravity of the good cause, whether the new hearing location would cause witnesses (including experts) to travel more than 100 miles, whether the parties could submit witness depositions instead of live testimony, etc.
Attribution: Photo courtesy of Flickr user Dave Winer.
