But the Commissioner Said…

At an informal hearing, the Commissioner’s role is that of an impartial mediator. She may make suggestions which the parties can adopt or ignore. Typically, in a contested case in which the respondents disclaim liability on the basis that they are awaiting more proof that the injuries sustained by the claimant are job-related, the Commissioner may “recommend” or “strongly recommend” that the insurance company pay six weeks of benefits, on a “without prejudice” basis. This is the Commissioner’s attempt to maintain the status quo by keeping the claimant financially afloat while the respondents conduct their investigation of the claim. It gives the claimant some financial breathing room, while allowing the respondents to maintain their denial of the claim, thus, on a without prejudice basis. It is typically six weeks between hearings, so if the claimant has established a connection between the injury and his workplace, the commissioner will recommend that the carrier pay the claimant while the respondents investigate the claim, as the claimant’s bills do not stop coming in the interim.

Claimants who attend such hearing often believe that because the commissioner has strongly recommended the payment of these benefits, that the respondents are required to make such payments. The commissioner has no authority at an informal or a preformal to make such a ruling. And the respondents are under no obligation to follow such recommendations. It is only at a formal hearing, or trial, that the commissioner has the authority to make such a binding ruling. The best that respondent’s counsel can do is to pass along the commissioner’s recommendation to the adjuster handling the file.

In the event the commissioner has made recommendations to pay indemnity benefits, especially if such recommendations are made in consecutive hearings, and if the claimant can establish that the respondents had no reasonable basis for continuing to contest payment of these indemnity benefits, then the claimant can push for undue delay penalties and attorney’s fees. A record of several informal hearings in which the commissioner has recommended payment of benefits will be helpful in prosecuting such claims.

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