As of July 1, 2022, West Virginia (WV) employers are navigating a new WV workers’ compensation review system. While WV workers’ compensation law remains largely the same, the process for reviewing and adjudicating protests has a new roadmap. Here, we summarize what that process looks like now.
The Big Change in the WV Workers’ Compensation Review System
The biggest change employers will see in the WV workers’ compensation review system is the creation of the new WV Intermediate Court of Appeals. As a result, the path for adjudicating WV workers’ compensation protests has a new route that includes the new intermediate appellate court and eliminates a previous stop on the protest journey. WV workers’ compensation defense attorneys are adjusting accordingly how they handle WV workers’ compensation defense cases.
A Close-Up of the WV Workers’ Compensation Review System Changes
As you all may recall from previous editions of this newsletter, there was a restructuring of the West Virginia workers’ compensation adjudication system effective July 1, 2022. We are all still adjusting to the new system. One significant feature of the new system is that the WV Workers’ Compensation Board of Review is now the court of first jurisdiction over any protest in a workers’ compensation claim.
The old workers’ compensation system called for claimant to file a WV workers’ compensation protest with the Office of Judges, and the Office of Judges’ decision was then appealable to the Board of Review. The Board of Review has now replaced the Office of Judges, and appeals from the Board of Review will be heard by the new Intermediate Court of Appeals. This is a court of general jurisdiction and will hear appeals in most types of cases, including workers’ compensation.
One way in which this change will affect claims handling is in the issuance of decisions or “orders” regarding West Virginia workers’ compensation claims. As has always been the case, all decisions regarding a workers’ compensation claim in West Virginia must be issued in written form. This applies to the most complex and significant matters, like eligibility for permanent total disability benefits, down to the most routine and ordinary issues, such as eligibility for certain treatments, medications, etc. Almost all decisions must be made in written form, and these decisions almost always have to contain a clause informing the claimant of his or her right to file an objection to the decision, even when fully favorable to the claimant.
The need for a written order remains under the new WV workers’ compensation review system, but the language of the notice has changed. Under the new system, this clause should read:
"The claimant may object to this decision within 60 days from the date of receipt of this decision or notice. The claimant must send a written objection, along with a copy of this decision, to the Workers’ Compensation Board of Review, P.O. Box 2628, Charleston, WV 25329-2628, and must serve a copy of the objection upon all parties to a claim."
The above clause should be included in all claims decisions.
There is a limited exception for those carriers and claim administrators with an approved managed health care plan, in which case medical treatment decisions are subject to the managed health care plan’s grievance procedure before issuance of any order subject to litigation. West Virginia’s medical management rules also contain certain exceptions for certain types of treatment that do not require pre-authorization. Otherwise, a written decision, including the clause informing claimant of his or her right to file an objection, must be issued on all requests for benefits.
Amid the Changes, Reliable WV Workers’ Compensation Counsel Is a Must
While the changes to the WV workers’ compensation review system are in many ways mere rerouting of the path for processing protests, the process still demands assistance from experienced WV workers’ compensation defense attorneys. If you have questions regarding the reorganized litigation system for West Virginia Workers’ Compensation claims, the content requirements for written orders, the objection clause noted above, or other workers’ compensation defense matters, Steve Wellman at Jenkins Fenstermaker, PLLC can help. For a consultation, call Steve at (304) 523-2100 or complete this online contact form.