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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Phone (304) 523-2100

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By James Heslep Of Jenkins Fenstermaker, PLLC on 10/30/2022
The WV Workers’ Compensation Board of Review: Changes in WV Workers’ Compensation Litigation

In 2021, the West Virginia (WV) Legislature passed Senate Bill 275, creating an Intermediate Court of Appeals in WV. The legislation also initiated changes to the WV workers’ compensation litigation procedure that became effective on July 1, 2022. With the Office of Judges eliminated and the WV Workers’ Compensation Board of Review taking on the responsibility for initial claim objections, there are some details of which insurers, third-party administrators (TPAs), and employers need to be aware as they issue decisions on workers’ compensation claims.

Guidance on Litigation under the WV Workers’ Compensation Board of Review

To inform employers and insurers about updated regulations and changes in WV workers’ compensation litigation, the WV Office of the Insurance Commissioner (OIC) issued West Virginia Insurance Bulletin No. 22-07 regarding the content of written workers’ compensation claim decisions and the information that must be provided to claimants and other parties to the claim.

Failure to comply with this new guidance could result in delays, penalties, and other problems for insurers, TPAs, and self-insured employers who do not comply. For businesses in North Central WV that issue workers’ compensation claim decisions, the guidance of an experienced workers’ compensation defense lawyer, like the ones at the Clarksburg office of Jenkins Fenstermaker, PLLC, is an invaluable resource that can prevent regulatory action and adverse claims decisions that could result from mistakes in the claims administration process.

Changes to Workers’ Compensation in WV Starting in 2022

Senate Bill 275 nullified WV Code § 23-5-1, which outlined the process for claim objections to be submitted to the Office of Judges. Effective July 1, 2022, WV Code 23-5-1a became the governing statute. The new law sets forth the requirements for written decisions and objections to those decisions filed with the WV Workers’ Compensation Board of Review. Insurers and employers need to understand the new guidelines for issuing claims decisions so they can effectively manage workers’ compensation claims administration and avoid issues that could result from an omission or error in a workers’ compensation decision letter.

Who Must Receive Notice of Decisions Appealable to the WV Workers’ Compensation Board of Review?

As noted in the bulletin released by the IOC, workers’ compensation claim decisions must be sent to all parties involved in the claim and must contain specific elements and language. Parties who must receive a copy of a decision notice include the following:

  • The claimant;
  • The claimant’s dependents, if applicable;
  • The employer; and
  • The Insurance Commissioner, when claims are related to the Old Fund, the Self-Insured Employer’s Fund, the Self-Insured Employer Risk Guaranty Pool, the Uninsured Employer's Fund, or the Coal Workers' Pneumoconiosis Fund.

What Must Be Included in WV Workers’ Compensation Decision Notices?

Under WV Code § 23-5-1a(b)(1) and WV CSR § 85-1-7.2, letters containing decisions regarding workers’ compensation claims must include the allowed time the claimant has to file an objection to the decision, which is 60 days. If an objection is not filed within this timeframe, the decision becomes final. However, if the insurer or employer fails to notify the claimant or another party of the option to object and the appropriate timeframe in which to do so, this could create problems if litigation ensues.

Written workers’ compensation decision notices must also contain the following basic information:

  • The names of all parties to the claim;
  • The full name of the insurer, TPA, or self-insured employer that is issuing the decision;
  • A mailing address for the insurer, TPA, or employer, as applicable;
  • The Jurisdictional Claim Number (JCN);
  • The date of injury or date of last exposure for occupational pneumoconiosis and hearing loss claims;
  • The date of the notice of a decision;
  • The issue decided;
  • The decision made;
  • The basis for the decision; and
  • The allowed timeframe for objection.

Since the information above is required for parties to the claim to file objections with the Board of Review, failure to include these elements may result in delays or other problems for the insurance carrier, TPA, or self-insured employer.

Navigating Changes in WV Workers’ Compensation Litigation

Employers and insurance carriers in North Central WV who need guidance regarding workers’ compensation matters trust the counsel and representation of James “Mac” Heslep at the Clarksburg office of Jenkins Fenstermaker, PLLC. Our attorneys stay informed about changes in WV workers’ compensation litigation procedure so our clients can better focus on the daily aspects of running a business.

Whether you are revising policies to comply with new legislation and changes to workers’ compensation, defending against an objection before the WV Workers’ Compensation Board of Review, or otherwise need workers’ compensation assistance in North Central WV, Mac and the Jenkins Fenstermaker team can help. Call (304) 521-6120 or complete the firm’s online contact form to schedule a consultation.