Last Update: 9/28/05 (Transmittal I-2-68)
Live testimony in person, by videoconference or telephone conference with opportunity to question the ME is the preferred method for obtaining ME opinion, but written interrogatories may be used. Written interrogatories are often used when an ALJ receives posthearing evidence, but can be used at other times in the hearing process. The claimant or representative may ask the ALJ to obtain interrogatories, or the ALJ may decide to use them on his or her own initiative.
When preparing interrogatories, the ALJ must:
phrase each question in a way that will not suggest any specific conclusion, but will elicit a clear and complete response that can ultimately be expressed (to the extent possible) in lay terms (See I-2-5-93, Sample-Interrogatories to Medical Expert.); and
leave sufficient space between the questions for the answers.
Before releasing interrogatories to the ME, the ALJ must transmit the proposed interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they object to the use of interrogatories in general, object to any particular interrogatory, or wish to propose other interrogatories. (See I-2-5-97 Sample-Letter to Transmit Interrogatories to Claimant or Representative.) In DGS, select “CE and Evidence Request,” and then click on “Medical Expert Interrogatories.” The Letter to Transmit will be generated automatically in accordance with the information entered into the user form.
If the claimant or representative objects to the use of interrogatories in general, the ALJ must consider the claimant's or representative's reason(s) for believing that the ALJ cannot establish facts relevant to the issues in the case by means of written interrogatories, and rule on the objection. Factors that the ALJ may consider in determining whether to grant a claimant's or representative's request to question an ME at a hearing or supplemental hearing include, but are not limited to:
The preference of live testimony, in person, by telephone, or by video teleconference as the method for obtaining expert opinion evidence (See I-2-5-30, Medical or Vocational Expert Opinion — General.);
Whether a hearing is needed to address the claimant's or representative's allegations of bias on the part of the ME; and
Whether a hearing is needed to address questions about the ME's qualifications.
If a claimant or representative objects to a particular interrogatory or proposes other interrogatories, the ALJ must rule on the objection or proposal. Factors that the ALJ may consider in determining whether to revise or expand the interrogatories include, but are not limited to, whether the claimant's or representative's comments or proposed additions are material to the issues in the case and are based on the evidence of record.
If the ALJ rules against the claimant's or representative's objection(s) or proposal(s), he or she must:
inform them in writing of the ruling, and the reason(s) for it;
enter a copy of the ruling into the record as an exhibit; and
address the objection(s) or proposal(s) and provide the rationale for the ruling in the hearing decision.
If the ALJ revises or expands the interrogatories, he or she must submit the revised or expanded interrogatories to the claimant or representative for further comment. (See I-2-5-97 Sample, Letter to Transmit Revised Interrogatories to Claimant or Representative.)
After the claimant or representative has responded to the ALJ's proposed interrogatories and all issues have been resolved, or after the claimant or representative fail to respond, the ALJ will send the interrogatories to the ME along with the following:
a. A letter explaining the request and the requested method of response. (See I-2-5-95 Sample-Letter to Expert Witness, Written Interrogatories.)
Include all identifying information in the letter.
Request a response within 10 calendar days.
Mark one copy of the letter as an exhibit and place it in the CF.
Place a copy of the letter in the HO file.
b. Copies of the medical evidence and other evidence designated by the ALJ to be sent to the ME, arranged in chronological order. Include the following:
c. A list identifying the exhibits sent to the ME (Form HA-540, Exhibits List) (to access Form HA-540 go to DGS, click on the “Exhibit” tab; then click on “Exhibit List” tab); and
A copy of the ME's professional qualifications for verification.
NOTE:
Do not include the professional qualifications of any other sources.
d. A transcript or summary of any pertinent testimony provided in an earlier hearing.
A statement of the issues in the case.
A Contractor's Invoice created in WebBass for signature by the ME. The contractor's invoice, HA-590, can also be accessed through the Document Generation System (DGS). Go to DGS, click on the tab “Contractor's Invoice.”
NOTE:
If OHA does not have a BPA with the ME, provide any pertinent ME orientation materials available, and use Optional Form 347 (Order for Supplies or Services) to obtain payment.
The name and telephone number of an HO contact person.
A self-addressed, postage paid envelope large enough for the ME to return all enclosures and responses to the interrogatories.
When an ALJ receives new evidence after an ME has provided testimony or responded to interrogatories, and decides to forward the new evidence to the ME for review with interrogatories to determine if it affects the prior testimony or response, the ALJ must:
Transmit the interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if he or she has any objection or proposal, and rule on any objection or proposal. (See I-2-5-42 A. through C.)
After the claimant or representative has responded and all issues have been resolved, or after the claimant or representative fail to respond, send the interrogatories to the ME with:
A letter explaining the request and the requested method of response (See I-2-5-96 Sample-Transmittal Letter to Expert Witness — Evidence Received After Interrogatories. Include all identifying information in the letter and request a response within 10 days.);
A photocopy of the new evidence;
Copies of the evidentiary documents the ME previously reviewed if they were not maintained by the ME at the request of the ALJ for possible further proceeding ; and
The name and telephone number of an HO contact.
Distribute the letter as follows:
send the original to the ME;
send copies to the claimant and the representative;
mark one copy of the letter as an exhibit and place it in the CF; and
place a copy in the HO file.
Diary the case for the requested response date, and make the appropriate follow-up contacts.