N.H. Admin. Code § Lab 204.07 - Conduct of Hearing

(a) The party requesting the hearing shall be responsible for compiling all written evidence to be considered by the hearing officer. This compilation shall be indexed, tabbed, paginated and in chronological order within each tabbed section. The final compilation shall be submitted to the hearing officer at the time of the hearing. Members of the department of labor staff or the hearing officer shall waive the provision upon a finding that a party cannot comply due to lack of financial or technical resources.

(b) All parties to a dispute subject to the provisions of this chapter shall disclose to all the other parties all medical evidence that is to be introduced at the hearing no later than 5 business days prior to the date of the scheduled hearing. Parties who are introducing non-medical evidence shall make all other parties aware of such evidence and submissions no later than 2 business days prior to the scheduled hearing.

(c) Any party other than the commissioner who wishes to compel attendance of a witness at a hearing shall follow the procedures set out in RSA 516. Depositions are allowed only upon agreement of all parties. Depositions shall be completed, and a transcript submitted to the department of labor and all parties at least 7 days prior to the hearing.

(d) If there is a clear dispute of facts between the parties in which the credibility of testimony might determine the outcome of the hearing, the hearing officer, on the request of a party, may sequester witnesses until they are called to testify. However a witness shall be sequestered only if each party, as appropriate, shall have one individual present throughout the process to ensure neither side is placed at an unfair advantage.

(e) A sound recording of the hearing shall be made by the hearing officer and the record shall be maintained by the department of labor for a period of 60 calendar days following the order or ruling by the hearing officer on the issues presented. Any party requesting a copy of the sound recording shall be granted access to it at reasonable times during business hours for copying purposes at any time after the hearing decision is mailed. If a party to the proceeding makes transcripts of hearing testimony and uses them for any purpose in any proceeding, a copy of such transcript shall be furnished to all parties of record. Copies of hearing tapes may be requested in writing from the department. A reasonable fee to cover the cost of the tape and processing fee, shall be included with the request. Any party may have a stenographer present at a hearing provided that that party bears the cost of the stenographer.

(f) If a person requests a transcript of the taped record, the department shall cause a transcript to be prepared and, upon receipt of payment for the cost of the transcription by the requesting party the department shall provide copies of the transcript to all parties.

(g) At the request of a party to any proceeding involving disciplinary action relative to an occupational license subject to the jurisdiction of the department, the record of the proceeding shall be made by a certified short hand court reporter provided by the agency at the requesting party's expense. A request for a certified shorthand court reporter shall be filed in writing at least 10 days prior to the day of the scheduled hearing.

(h) The hearing officer shall at the outset of the hearing record the place, date and issues of the hearing together with the names of those parties making appearances.

(i) Testimony of witnesses shall begin by the administration of oaths or affirmations by the hearing officer.

(j) Interpreters shall be administered an oath or affirmation to truthfully and accurately translate, to the best of their ability, all questions asked and answers given.

(k) The hearing officer shall regulate the course of the hearing and shall accept offers of proof together with all relevant evidence. The hearing officer shall conduct the hearing in such a manner as to best ascertain the rights of the parties and shall not be bound by common law or other rules of evidence or by common law or other rules of procedure other than those specified under Lab 200 and RSA 541-A. Any probative and relevant evidence shall be received by the hearing officer during the course of the hearing. However, the hearing officer shall exclude evidence upon finding that it is irrelevant, immaterial or unduly repetitious.

(l) Testimony shall be offered in the following order:

(1) The party or parties bearing the burden of proof and such witnesses as the party may call; and

(2) The party or parties opposing the party who bears the overall burden of proof and such witnesses as the party may call.

(m) Each party shall have the right to present a statement of his or her position immediately prior to the close of the hearing. The party having the burden of proof shall give its statement last. If the hearings officer finds it necessary for additional submission of memoranda, such submission shall be made within the time frame allowed by the hearings officer.

(n) A determination shall be made by the hearings officer on the basis of evidence presented at the hearing and the hearing officer shall not consider ex parte information, regardless of its source. If the submission of additional documentation is required or allowed by the hearing officer, copies of all such documents shall be provided within the time frame allowed by the hearing officer with copies to all opposing parties. The non-producing parties shall be afforded 10 calendar days to object to and comment upon such submission prior to the issuance of any order or ruling by the department. The order or ruling of the hearing officer shall be based upon reliable, probative and substantial evidence.

Notes

N.H. Admin. Code § Lab 204.07

#5041, eff 1-9-91; ss by #5235, eff 9-27-91, EXPIRED: 9-27-97

New. #6631, INTERIM, eff 11-16-97, EXPIRED: 3-16-98

New. #6806, eff 7-18-98; ss by #8682, INTERIM, eff 7-15-06, EXPIRED: 1-11-07

New. #8922-A, eff 7-1-07