§ 306. Appeals—Hearing examiners

(a) The Commissioner of Labor shall appoint one or more hearing examiners, selected in accordance with section 312(b) of this chapter, to hear and decide appeals from determinations and redeterminations; Provided, however, that no person may be selected as a hearing examiner unless he is qualified by education and experience to hear and decide appeals under this chapter.

• Review by hearing examiners

  • (b) Any party entitled to notice of determination as provided in section 305(e) of this chapter or to notice of redetermination as provided in section 305(g) of this chapter may file an appeal from the determination or redetermination to a hearing examiner within the time specified in sections 305(f) or 305(g)(6) of this chapter. The parties to such an appeal shall include all those entitled to notice of the determination, and the Commissioner. Whenever an appeal involves a question whether service constitutes insured work, the hearing examiner shall give notice of the appeal to the other parties, including the employing unit for which such service was performed if it is not the appellant; and that employing unit, if not already a party, shall then become a party to the appeal. If an appeal from a determination is pending as of the date a redetermination is issued, the appeal (unless withdrawn) shall be treated as an appeal from such redetermination. Appeals may be withdrawn at the request of the appellant and with the permission of the hearing examiner if the record preceding the appeal and the request for the withdrawal support the correctness of the determination and indicate that no coercion or fraud is involved in the withdrawal. The hearing examiner may hear and decide any additional issue affecting the claimant’s rights to benefits not expressly ruled on in the determination or redetermination appealed or stated in the notice of hearing, if as of the date of the hearing the Commissioner has issued no final determination or redetermination concerning such additional issue or the Commissioner petitions the hearing examiner in regard to such additional issue pursuant to section 305(g)(4) of this chapter. Provided, however, that if any party is not prepared to proceed on such additional issue, a continuance of the hearing shall be granted.

• Hearing procedures and record

  • (c) A reasonable opportunity for a fair hearing shall be promptly afforded to all parties, at a time and place reasonably convenient to each of the parties. The hearing examiner shall inquire into and develop all facts bearing on the issues and shall receive and consider evidence without regard to statutory and common-law rules. With notice to the parties, the hearing examiner shall include in the record and consider as evidence all records of the Commissioner that are material to the issues. The Commissioner shall adopt regulations governing the manner of filing appeals and the conduct of hearings and appeals consistent with the provisions of this chapter. A record shall be kept of all testimony and proceedings in an appeal, but testimony need not be transcribed unless further review is initiated. Witnesses subpoenaed pursuant to section 312(f) of this title shall be allowed fees at a rate fixed by the Commissioner; and the fees of witnesses subpoenaed on behalf of the Commissioner or of any claimant shall be deemed part of the expense of administering this chapter. No hearing examiner shall participate in any appeal in which he has a direct or indirect interest. In such event another hearing examiner, if there is one, shall be assigned to hear and decide the appeal, and if there is no other hearing examiner, one shall be appointed by the Commissioner of Labor pursuant to sections 306(a), 312(b) and 153 of this title.

• Consolidated appeals

  • (d) When the same or substantially similar evidence is material to the matter in issue with respect to more than one individual, the same time and place for considering all such cases may be fixed, hearings thereon jointly conducted, a single record of the proceedings made, and evidence introduced with respect to one proceeding considered as introduced in the others, provided no party is prejudiced thereby and the time and place fixed for the hearing is reasonably convenient to each of the parties.

• Notice of hearing examiner’s decision and judicial review

  • (e)

    • (1) After a hearing a hearing examiner shall make findings and conclusions promptly and on the basis thereof affirm, modify, or reverse the Commissioner’s determination or redetermination. Each party including the Commissioner shall be furnished promptly a copy of the decision and the supporting findings and conclusions, together with a notice of the right to judicial review. This decision shall be final unless a party initiates judicial review by filing in the District Court of the Virgin Islands a petition for review within 30 days after the hearing examiner’s decision has been mailed to each party’s last known address, or otherwise delivered to him. The petition for review shall state the grounds upon which review is sought but need not be verified. Exceptions to rulings of the hearing examiner shall not be necessary to obtain judicial review nor shall a bond be required either as a condition of initiating a proceeding for judicial review of a hearing examiner’s decision as to benefit rights or of entering an appeal from the decision of the court upon such review.

    • (2) All parties to the proceeding before the hearing examiner shall be parties to the review proceedings. If the Commissioner is a party respondent, the petition shall be served by leaving with him, or any representative whom he designates for that purpose, as many copies of the petition as there are respondents. The Commissioner shall file with the court certified copies of the record of the case together with his petition for review or his answer to the appellant’s petition. Upon the filing of a petition for review by the Commissioner or upon service of a petition upon him, the Commissioner shall send a copy of the petition to each party and such mailing shall constitute service upon the parties.

    • (3) The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the hearing examiner, if supported by substantial evidence regardless of statutory or common-law rules, shall be conclusive. Any additional evidence required by the court shall be taken before the hearing examiner; and the hearing examiner, after hearing such additional evidence, shall file with the court such additional or modified findings of fact or conclusions as he may make, together with transcripts of the additional record. All proceedings under this section shall be heard summarily and given precedence over all other civil cases except those arising under the Workers’ Compensation Administration Law of the Virgin Islands; appeals involving benefit rights shall be given precedence over all other cases arising under this chapter. An appeal may be taken from the decision of the District Court of the Virgin Islands to the United States Court of Appeals for the Third Circuit in the same manner, consistent with the provisions of this chapter, as provided for civil cases.

• Conclusiveness of final determinations and decisions

  • (f) Except insofar as there is a redetermination under section 305(g)(2) or (3) of this title, all final determinations, redeterminations and decisions shall be conclusive upon employing units with notice, the Commissioner, and the claimant. No final determination, redetermination or decision as to benefit rights shall be subject to collateral attack by an employing unit regardless of notice. The Commissioner shall reopen a determination and a hearing examiner shall reopen a decision or revoke permission for withdrawal of an appeal if: (1) he finds that a worker or employer has been defrauded or coerced in connection with the determination, decision, or withdrawal of the appeal, and (2) the defrauded or coerced person informs the Commissioner or hearing examiner of the fraud or coercion within 60 days after he has become aware of the fraud or within 60 days after the coercion has been removed.

• Rule of decision

  • (g) A final decision of a hearing examiner and the principles of law declared in its support shall be binding on the Commissioner and the hearing examiner, unless overruled by a later decision of a hearing examiner or of a court of competent jurisdiction. If in any subsequent case before the Commissioner for determination or redetermination, the Commissioner has serious doubts as to the correctness of any principles previously declared by a hearing examiner, or if there is an apparent inconsistency or conflict in final decisions of comparable authority, then the findings of fact in such case may be certified, together with the question of law involved, to a hearing examiner. After giving notice and reasonable opportunity for a fair hearing upon the law to all parties to the proceedings, the hearing examiner shall render his decision upon the entire case.

• Limitation of fees

  • (h) No claimant shall be charged fees or costs of any kind by the Commissioner, a hearing examiner, or by any court or any court officer, except that a court may assess cost against such claimant if it determines that the proceedings for judicial review have been instituted or continued without reasonable grounds.

• Representation of claimant

  • (i) Any claimant in any proceeding before a hearing examiner may be represented by counsel or other duly authorized agent. No such counsel or agent shall either charge or receive for such services more than an amount approved by the Commissioner.

• Fees of attorneys for claimants on appeals to court

  • (j) An attorney at law representing a claimant on appeal to the courts shall be entitled to counsel fees as fixed by the court not to exceed 10 percent of the maximum benefits at issue in such court action. In difficult cases the court to which the appeal was taken may, upon application of counsel for the claimant, increase such fees to an amount which the court deems reasonable. Such counsel fees shall be paid by the Commissioner out of the Employment Security Administration Fund in each of the following cases: (1) any court appeal from an administrative or judicial decision favorable in whole or in part to the claimant, (2) any court appeal by a claimant from a decision which reverses a decision in his favor, (3) any court appeal by a claimant from a decision denying or reducing benefits awarded under a prior administrative or judicial decision, (4) any court appeal as a result of which the claimant is awarded benefits, or (5) any other court appeal by a claimant if the court finds that a reasonable basis exists for the appeal.