Creation of West Virginia Intermediate Court of Appeals and Impact on Workers’ Compensation Practice

In April 2021, the West Virginia Appellate Reorganization Act was enacted with an effective date of July 1, 2022. In addition to creating an intermediate appellate court (the West Virginia Intermediate Court of Appeals) below the West Virginia Supreme Court of Appeals (previously the only appellate court in the state), the statute also reorganized the workers’ compensation litigation structure.

Prior to the new law, a claimant could file a protest to the administrative order (claim decision) issued by an insurer or employer’s third party administrator relative to compensability or request for benefits, which would then be assigned to the Office of Judges (OOJ) for initial adjudication. A potentially aggrieved party could then file an appeal to the Workers’ Compensation Board of Review (BOR). A party could also appeal an opinion issued by the BOR to the Supreme Court of Appeals, which was obligated to hear the appeal as a matter of right.

The new law eliminates the current OOJ and establishes a “new” BOR as the initial adjudicator of protests. Protests will begin to be assigned to the BOR for adjudication as of July 1, 2022. The OOJ will remain operational and continue to issue decisions on protests currently in litigation through October 1, 2022, when the OOJ will dissolve. Any protests before the OOJ on which no decision has been issued will be transferred to the BOR at that time. Appeals from the BOR will be heard by the new Intermediate Court of Appeals as of right. Appeals to the Supreme Court of Appeals from the BOR to the Supreme Court can be accepted at the Court’s discretion. Importantly, there will now be a $200.00 filing fee to appeal to the Intermediate Court from a BOR opinion.

Mechanically, the BOR will be increased from its current three (3) members to five (5). Board members will be appointed by the Governor. A chair will also be appointed on a rotating basis, who will be responsible for assigning protests to the other individual Board members. The BOR also has discretion to hire hearing examiners and clerks to assist with the adjudication process. Hearing examiners must be attorneys with at least four (4) years of litigation experience (not necessarily workers’ compensation). The BOR can delegate duties to the hearing examiners, such as issuing interim rulings on motions and conducting hearings. The hearing examiners can also make recommendations to the BOR on final adjudications. However, the assigned Board member must sign off on a final decision.

The West Virginia Offices of the Insurance Commissioner (OIC) enacted new Procedural Rules for the BOR practically identical to those earlier enacted for the OOJ. On May 12, 2022, the OIC issued an Insurance Bulletin addressing the content of claim decisions issued by insurers and third party administrators. Substantively, an insurer’s and administrator’s obligations remain virtually identical. As with current claim decisions, a claim decision must state the time allowed to protest, which remains sixty (60) days from the date of a claimant’s receipt of the claim decision. However, insurers and administrators must now advise claimants that they can file a protest with the Workers’ Compensation Board of Review rather than the OOJ, as had been the case.

Of note, we do not expect the new adjudication structure to procedurally impact administration of claims at the adjusting level. But for the notification language required for protestable claim decisions, the obligations of insurers and administrators remain virtually identical.

However, the new adjudication structure will undoubtedly impact claims that go into litigation. From a procedural perspective, we expect the new BOR to function much like the current OOJ. However, the substantive impact of the new structure is uncertain. The current and new BOR members are experienced in workers’ compensation law. However, the experience of the hearing examiners and law clerks retained by the BOR is unknown. Given that BOR members must issue final decisions and that hearing examiners will be supervised by the BOR chair, we are hopeful that uneducated decisions will be avoided.

The $200 filing fee for appeals to the Intermediate Court was undoubtedly enacted to discourage the filing of unwarranted appeals, which has been an issue with the Supreme Court. There has been some discussion for waiving the filing fee for claimants, but at present the filing fee remains in place for all parties.

The BOR has advised practitioners to anticipate a slow transition and bumps in the procedural road as the stakeholders adjust. Fortunately, we anticipate that the OOJ will continue to actively adjudicate claims assigned to it through the date of its dissolution on claims, so hopefully the transition to the BOR will not cause undue delay or hardship for claimant’s, employers, and insurers.

Questions about this case can be directed to Evan Jenkins at (412) 926-1419 or ejenkins@tthlaw.com.