Effective July 1, 2022 the West Virginia Office of Judges, which was previously the first step in the litigation process following the issuance of a protestable order by the claims administrator, ceased handling new protestable orders.

With any and all protestable orders issued July 1, 2022 and thereafter, the prior Board of Review replaced the Office of Judges and is now the initial step in the litigation process after the issuance of a protestable order by the claims administrator.

As a result, claims administrators are now required to reference the “new” Board of Review in the boilerplate language in protestable orders directing claimant’s to pursue their protests within 60 days of the receipt of the order  –  not to the “old” Office of Judges but rather to the “new” Board of Review.  This is a seemingly simple but fundamentally important change because the State of West Virginia places great expectations on claims administrators to provide the proper guidance and updated information to claimants, many of whom are pro se.

The West Virginia Office of the Insurance Commissioner has issued Bulletin Number 22 – 07 dated May 12, 2022 which provides a detailed explanation as to the required boilerplate language and a reminder of the additionally required information in all protestable orders.

The other standard information that has always been required in protestable orders remains unchanged and is reiterated in the Bulletin.

There are still a number of moving parts and uncertainties but based on the current information, the “new” Board of Review, which again has replaced the “old” Office of Judges, will consist of a hearing examiner who will make a recommendation to the Board, which will consist of five members.  The Board will then review the recommendation(s) and a decision will be issued.

Virtual hearings will be permitted at the new Board of Review and in person hearings will be allowed “for good cause,” but will need to be affirmatively requested.  In the case of hearings, evidence will need to be exchanged at least one day prior to the hearing with the exception of impeachment evidence and the testimony of in person witnesses.

In other words, it appears that the prior satellite hearing locations during the time of the Office of Judges will be or have been, eliminated.

The most updated information is that the new Board of Review will also handle failure to timely act complaints and that ultimately, an electronic filing and delivery system is planned to be up and running. In other words, instead of the old Office of Judges physically mailing out timeframe orders, opinions etc., ultimately, an electronic filing system will be set up that the new Board of Review will utilize to allow for electronic filing and delivery of notices, orders etc.

Ideally, an electronic “portal” will be developed that will allow for documents filed on each claim to be reviewed by the respective parties.

As a result of this change, the new litigation protocol, again effective July 1, 2022 for protestable orders issued as of July 1^st and thereafter are as follows:

1. Claims administrator issues protestable order;
2. Protest filed by claimant within 60 days of receipt to the new Board of Review;
3. Aggrieved party can pursue an appeal from the Board of Review to the newly created intermediate appellate court of appeals within 30 days.  The intermediate appellate court must hear the appeal.  The latest information is that the intermediate Court of Appeals will consist of three judges and be based in Charleston, West Virginia. The intermediate appellate court plans on having five satellite hearing locations to present oral argument virtually or in Charleston based on the claimant’s location.  There will also be an electronic filing system at this level as well;
4. Aggrieved party can then pursue an appeal to the Supreme Court of Appeals but that appeal will be discretionary, meaning the Supreme Court of Appeals does not need to necessarily consider it automatically.

These updates, in a fundamental way, change the litigation process in defending West Virginia Workers’ compensation claims.

Please direct any questions to James Maloney at jmaloney@semmes.com or (410) 963 – 9628.