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By Steven K Wellman of Jenkins Fenstermaker, PLLC on 02/19/2021
Trying Again for a WV Intermediate Court of Appeals

Once more unto the breach, dear friends, once more!

For the last several years in a row, there has been an effort to enact legislation creating an intermediate appellate court in West Virginia. Currently, West Virginia is one of only a handful of states in which cases go directly from the trial court or court of original jurisdiction to the state’s highest appellate court. Despite the many proposals that have been made, the West Virginia Legislature has thus far failed to enact any law creating a WV intermediate court of appeals.

Arm Yourself with Information about the Proposed WV Intermediate Court of Appeals

The 2021 legislative session is now underway, and, sure enough, there is another bill under consideration to create a WV intermediate court of appeals. In prior years the legislature has considered similar bills to establish an intermediate court of appeals such as SB 275 in 2020, which had the support of Governor Jim Justice.

This year, the legislature is again working to lighten the load on our highest and only appellate court. If passed, how would this impact workers’ compensation in our state? Below is an overview of WV Senate Bill 4 to give you some insight.

What’s in WV SB 4?

As introduced, WV SB 4 establishes an intermediate appellate court that would hear appeals in certain types of cases before they could proceed to the West Virginia Supreme Court of Appeals. The bill specifically contemplates workers’ compensation cases among those within the new intermediate court’s jurisdiction. Of course, the bill may be amended before being enacted, but the current version of the bill would merge the WV Workers’ Compensation Office of Judges and WV Workers’ Compensation Board of Review into a single tribunal.

Under current law, when an insurer or claim administrator renders a decision in a workers’ compensation case, that decision may be “protested” to the Office of Judges, and the protest is heard by an administrative law judge or “ALJ.” The ALJ’s decision is then appealable to the Board of Review, and the Board of Review’s decision is then appealable as a matter of right to the West Virginia Supreme Court of Appeals. By merging the two agency review tribunals and creating an intermediate appellate court, the new legislation would change this system significantly.

How the Proposed Changes to Workers’ Compensation Appeals in WV Would Affect the Review Process

The bill would merge the Office of Judges into the Board of Review by June 30, 2022. After that date, a claimant who wished to challenge the decision of a carrier or claim administrator would file an “objection” with the Board of Review. A member of the Board of Review would be assigned to each litigated case and would employ hearing examiners to perform various litigation functions, but the Board of Review member would ultimately render and sign all substantive decisions.

Appeals from the Board of Review would be filed with the new intermediate court of appeals. This would be an appeal of right, meaning that the WV intermediate appellate court would have to hear and decide all appeals. The proposed law would allow the court of appeals to charge the appealing party a filing fee of up to $200, which would be a big change, especially if applied to WV workers’ compensation appeals. Currently, there is no such filing fee for appeals of WV workers’ compensation decisions. The appellate court may elect not to charge the fee, of course, but would have the discretion to do so.

The new appellate court would be divided into two judicial districts, north and south, and workers’ compensation appeals would presumably be heard by the southern district, since it covers Kanawha County, the seat of government and location of the Board of Review.

Thereafter, appeals from the WV intermediate appellate court to the Supreme Court of Appeals of West Virginia would be discretionary. The highest court could accept or deny a petition for appeal, which would be another significant change. Currently, all appeals may be pursued to the state’s highest court as a matter of right.

Are Legislators Fighting an Uphill Battle in the Fight for a WV Intermediate Court of Appeals?

It remains to be seen whether there will be sufficient legislative support for the court of appeals bill. Even if some form of it does pass, it’s too early to know whether the final legislation will resemble the structure outlined above. We will monitor closely and advise when there are significant developments. 

If you have questions about how a new WV intermediate court of appeals could affect your handling of workers’ compensation decisions or just how to navigate the minefield of workers’ compensation law, contact a WV workers’ compensation attorney from Jenkins Fenstermaker, PLLC. The depth of experience offered by Steve Wellman and his colleagues guarantees five-star service for employers dealing with workers’ compensation matters. For a consultation, call (304) 523-2100 or complete this online contact form.