20 C.F.R. § 702.336

Formal hearings; new issues

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(a) If, during the course of the formal hearing, the evidence presented warrants consideration of an issue or issues not previously considered, the hearing may be expanded to include the new issue. If in the opinion of the administrative law judge the new issue requires additional time for preparation, the parties shall be given a reasonable time within which to prepare for it. If the new issue arises from evidence that has not been considered by the district director, and such evidence is likely to resolve the case without the need for a formal hearing, the administrative law judge may remand the case to the district director for his or her evaluation and recommendation pursuant to, § 702.316.

(b) At any time prior to the filing of the compensation order in the case, the administrative law judge may in his discretion, upon the application of a party or upon his own motion, give notice that he will consider any new issue. The parties shall be given not less than 10 days' notice of the hearing on such new issue. The parties may stipulate that the issue may be heard at an earlier time and shall proceed to a hearing on the new issue in the same manner as on an issue initially considered.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 42552, Aug. 23, 1977]

Notes of Decisions

Cited in 6 cases, 1982–2009 · leading case: U. S. Indus./Fed. Sheet Metal, Inc. v. Dir., Off. of Workers' Comp. Programs, 455 U.S. 608 (1982).

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U. S. Indus./Fed. Sheet Metal, Inc. v. Dir., Off. of Workers' Comp. Programs, 455 U.S. 608 (1982). · cites it 2× “…of this and all other regulations governing LHWCA proceedings for the Review Board to resolve on remand. See also 20 CFR § 702.336 (a) (1981).”

Cornell Univ. v. Velez, 856 F.2d 402 (1st Cir. 1988). · cites it 5× “” 20 C.F.R. § 702.336 (a). If the record is so expanded, the parties, in the AU’s discretion, are to be given “a reasonable time within which to prepare for [the new issue],” if necessary.”

Josh Nelson v. Am. Dredging Co. & Signal Mut. Ins. Co., 143 F.3d 789 (3rd Cir. 1998). “See 20 C.F.R. § 702.336 (a) and § 702.317, cited by the Board in support of its rulings.”

Del Monte Fresh Produce v. Dir., OWCP, 563 F.3d 1216 (11th Cir. 2009). “See 20 C.F.R. § 702.336 (b). The Board has upheld an ALJ’s refusal to consider a new issue raised in a post-hearing brief when the party “failfed] to exercise diligence in developing [the] issue, which should have been anticipated prior to the hearing.”

Newport News Shipbld v. Just. (4th Cir. 1997). · cites it 2× “See 20 C.F.R. § 702.336 . Here, the administrative law judge provided the Employer almost two weeks to proffer evidence "tending to negate perma- nency;" the regulations require only ten days' notice.”

Ceres Marine Term v. Gemma (4th Cir. 1998). “20 C.F.R. § 702.336 (b) (1997). Although this notice is dis- cretionary, the ALJ abused his discretion here by failing to notify the parties that he would consider an issue that Gemma's own stipulation had removed from consideration at the hearing.”

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