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The Potential Effect of an Intermediate Appellate Court on WV Workers' Compensation

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West Virginia is one of the few states to have a single appellate state court. Occasionally the West Virginia Legislature has considered bills to establish an intermediate appellate court in our state, but to date, none of those bills has gained traction. The effect of an intermediate appellate court on WV worker's compensation and other areas of law would be significant.

A potential legal change that is often brought up in the West Virginia (WV) Legislature is the creation of an intermediate appellate court in the Mountain State. Experienced WV workers' compensation attorneys recognize that such a change could substantially impact workers' compensation claims. This blog considers the potential effect of an intermediate appellate court on WV workers' compensation.

In the past, several bills have been 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 resulted in major changes like these:

· Eliminating the medical management rule, known as "Rule 20";

· Giving treating physicians almost complete discretion and authority to offer any treatment and add any conditions to claims;

· Eliminating the "preponderance of the evidence" standard for evidentiary interpretation and reinstating the "rule of liberality;" and

· Creating or re-creating benefits that are not payable under our current system

Where Workers' Compensation Fits in the WV Court System

West Virginia's state court system consists of the following courts:

· One appellate court: the West Virginia Supreme Court of Appeals (the "Supreme Court");

· Trial courts of general jurisdiction, known as "circuit courts"; and

· Lower courts with limited jurisdiction over specific matters, such as family courts, magistrate courts, and drug courts.

Among the decisions that the Supreme Court reviews are those from the West Virginia Workers' Compensation Board of Review (Board of Review). Because the Supreme Court is the only appellate court in the state, no other opportunities for appeal exist in WV. Unlike other states, WV does not have an intermediate appellate court.

What would be the effect of an intermediate court of appeals on WV workers' compensation?

During different legislative terms, notable pieces of proposed legislation have been introduced that could impact litigated claims in West Virginia. Two examples include Senate Bill 277 (2017) and Senate Bill 9 (2016), which were virtually identical. Both sought 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 had jurisdiction to hear appeals from the Board. The bills previously considered by the legislature would have permitted the intermediate court to hear these appeals at its discretion. If passed, these bills would not give an automatic appeal from the Board of Review.

The effect of an intermediate court of appeals on WV workers' compensation jurisprudence would be significant. Currently, it can take a year or more for the Supreme Court to hear appeals from the Board. Presumably, two goals of proposed laws like the bills noted above are to reduce the number of appeals on court dockets and to significantly accelerate the appeals process in cases deemed worthy of appeal.

Before 2010, the right to appeal was not guaranteed; the Supreme Court had discretion as to whether to hear a workers' compensation petition for appeal. Before the process was changed, West Virginia was the only state that had the discretion to hear an appeal, as opposed to having an appeal as a matter of right. Proposed legislation like the bills outlined above would purportedly allow for discretion, once again, within the workers' compensation system.

In general, adding an intermediate appeals process would often shorten the length of time for an appeal. However, this would also create an intermediate appellate court that could provide legal decisions that might aid in interpretation of the law. The concern for many plaintiff workers' compensation lawyers would be the loss of the absolute right to appeal.

Neither Senate Bill 277 (2017) nor Senate Bill 9 (2016) were heard by the committee to which they were referred. Therefore, both died without being considered. However, bills similar to these have been attempted in the past. It is extremely likely that bills such as these-along with the effect of an intermediate court on WV workers' compensation-will continue to be a potential issue in the legislative arena.

Need help understanding the effect of an intermediate appellate court on WV workers' compensation?

At Jenkins Fenstermaker, clients can find a workers' compensation, business law, labor and employment law, or litigation attorney who can meet their needs. Steve Wellman has been recognized nationally and locally as an expert in all facets of workers' compensation in WV. For assistance with your workers' compensation matter, you may call him directly at (866) 617-4736 or complete our firm's Contact form.

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