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West Virginia Workers' Compensation

Photo of Steven Wellman

In past sessions, several bills were proposed that would have dismantled statutory reforms to the West Virginia Workers' Compensation Act and returned West Virginia to the days of "liberal" evidentiary interpretation in Workers' Compensation matters. Notably, these bills would have eliminated the medical management rule known as "Rule 20" and given the treating physician almost complete discretion and authority to offer any treatment and add any conditions to the claim; eliminated the preponderance of the evidence standard for evidentiary interpretation and reinstated the "rule of liberality;" and created or re-created benefits which are not currently payable. Similar measures have been introduced this session, but it is not expected that any of these proposals will gain traction.

There is a notable piece of proposed legislation that could impact litigated claims in West Virginia, however. Senate Bill 9 seeks to create an intermediate Court of Appeals. While appeals from the Workers' Compensation Board of Review are currently heard by the Supreme Court, the proposed intermediate court would have jurisdiction to hear appeals from the Board of Review. The legislation would permit the intermediate court to hear these appeals at its discretion and would not confer an appeal from the Board of Review as a matter of right.

This would represent a very significant change in Workers' Compensation jurisprudence in West Virginia. Currently, it can take a year or more for the Court to hear appeals from the Board of Review. Presumably, one goal of the new law is to reduce the number of appeals on the Courts' dockets and significantly accelerate the appeals process in cases deemed worthy of appellate consideration.

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