West Virginia's New Intermediate Appellate Court Fundamentally Changes Workers' Compensation Litigation Practice
The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021. Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia. It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.
After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR. (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ. The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer. (W. Va. Code § 23-5-8b). Instead of the three-member panel currently comprising the BOR, the BOR will consist of five members appointed by the Governor. (W. Va. Code § 23-5-11a).
The OOJ will officially terminate on or before October 1, 2022. (W. Va. Code § 23-5-8a). On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ. (W. Va. Code § 23-5-8b(b)). If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR. (W. Va. Code § 23-5-8a). For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision. (W. Va. Code § 23-5-8b(b)). The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022. (W. Va. Code § 23-5-8b(e)).
The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR. (W. Va. Code § 23-5-9a). That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except timeframe orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection. (W. Va. Code § 23-5-9a). Hearing examiners must be persons admitted to the practice of law in West Virginia with at least four years of experience as an attorney. (W. Va. Code § 23-5-8a). The chair of the BOR will supervise hearing examiners. (W. Va. Code § 23-5-8a). If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested. (W. Va. Code §23-5-9a). The board member will render a decision with findings of fact and conclusions of law. (W. Va. Code § 23-5-9a).
An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice. (W. Va. Code § 23-5-10a). Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested. (W. Va. Code § 23-5-12a). A filing fee of $200 may be charged to the petitioner. (W. Va. Code § 51-11-7). Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered. (W. Va. Code § 23-5-12a).
The WV Intermediate Court of Appeals will have exclusive jurisdiction of:
- Decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and
- Final orders or decisions issued by the BOR after June 30, 2022.
(W. Va. Code § 23-1-1h). The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR. (W. Va. Code § 23-5-12a). It may also remand the case for further proceedings. (W. Va. Code § 23-5-12a). A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:
- In violation of statutory provisions;
- In excess of the statutory authority or jurisdiction of the BOR;
- Made upon unlawful procedures;
- Affected by other error of law;
- Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or
- Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(W. Va. Code § 23-5-12a). An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia. (W. Va. Code § 29A-6-1). The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision. (W. Va. Code § 51-11-10).
The Intermediate Court will be comprised of a three-judge panel. (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate. Then, after the initial appointment by the Governor, the judges will be elected. (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6). The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for five years prior to appointment or election. (W. Va. Code § 51-11-3).
This new legislation impacts workers’ compensation in several ways. Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia. New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only four years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions. The hearing examiners will also be supervised by the BOR chair. Hopefully, this will prevent the issuance of uneducated decisions. Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals. SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021). The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.