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By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 04/09/2021
The Impact of an Intermediate Court of Appeals in WV on Workers’ Compensation Defense

The West Virginia (WV) Legislature has passed a bill called the West Virginia Appellate Reorganization Act, which will establish an intermediate court of appeals in WV. Assuming that Governor Jim Justice signs the bill, and he is expected to do so, West Virginia will become the 46th state with an intermediate court of appeals, which will hear appeals from courts in civil matters and family court matters and from various administrative courts. This article, however, focuses on the ways in which the new court will impact workers’ compensation litigation in WV.

Workers’ Compensation Litigation and the New Intermediate Court of Appeals in WV

The introduction of an intermediate court of appeals in WV will have significant impacts on the legal procedures involved in workers’ compensation litigation in WV. While the following provides an overview of these changes, specific questions regarding workers’ compensation defense under the new system should be directed to your WV workers’ compensation attorney.

Changes to Workers’ Compensation Litigation in WV

Before the adoption of this new system, when a workers’ compensation claim administrator issued a decision to which the claimant objected, the claimant could file a protest with the Workers’ Compensation Office of Judges. An administrative law judge was assigned and would decide the protest. That decision was then appealable to the Workers’ Compensation Board of Review, a three-member panel that did not accept new evidence or testimony but reviewed the evidence offered before the lower tribunal and determined whether any reversible error was made. Both courts, the Office of Judges and Board of Review, heard only workers’ compensation cases. The Board of Review’s decision was appealable as a matter of right to the Supreme Court of Appeals of West Virginia.

Under the West Virginia Appellate Reorganization Act, the Office of Judges is eliminated. The new court of first jurisdiction is the Board of Review. There will be five Board of Review judges, which is significant because it is fewer than half the number of current administrative law judges. However, the new Board of Review will also employ an unspecified number of hearing examiners, who must be attorneys with at least four years’ experience in practice. The Board of Review may delegate duties to the hearing examiner, including consideration of procedural matters and motions, but all final decisions must be signed by one of the five judges. Hearing examiners may also submit recommendations to the judge as to the final outcome. Other than these changes, it sounds as if the Board of Review will function much like the Office of Judges.

The Board of Review’s decision will be appealable to the new intermediate court of appeals. The court of appeals will have three judges, who will initially be appointed but eventually elected. Each will serve a ten-year term, but the three initial appointments expire at the end of 2024, 2026, and 2028, respectively.

The court of appeals will not accept new evidence or testimony. One very significant change from the previous system is that the court clerk may charge a filing fee of $200 to the appealing party.

Oral argument of appeals is at the discretion of the court, which is the same as in the previous system. Decisions of the court of appeals will be citable authority, unlike opinions of the previous Board of Review. Also, unlike the previous system, appeals from the court of appeals to the state supreme court will be discretionary, i.e., the supreme court may refuse to hear the appeal.

Implementation of the Intermediate Court of Appeals in WV

The changes made by the West Virginia Appellate Reorganization Act take effect on July 1, 2022. The Office of Judges will continue to hear and decide protests to decisions issued on or before June 30, 2022; any claim decision rendered July 1, 2022 forward will fall under the exclusive jurisdiction of the Board of Review.

The Office of Judges will continue to exist until October 1, 2022 and will continue to decide protests of orders issued on or before June 30, 2022 until that time. If there are any remaining undecided protests as of October 1, 2022, they will be transferred to the Board of Review at that time.

When to Contact A WV Workers’ Compensation Attorney

Overall, there are many similarities between the “old” system and the “new” system, but there are also some very significant differences. If you have any questions about the new intermediate court of appeals in WV or any issue related to workers’ compensation litigation in WV, contact WV workers’ compensation attorney Steve Wellman and the Jenkins Fenstermaker, PLLC workers’ compensation defense team by calling (304) 523-2100 or completing the firm’s online contact form.