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By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 08/22/2017
WV Workers Compensation Claims Adjuster Testimony: Can You Compel It?

An issue that has recently become prevalent in West Virginia (WV) workers’ compensation litigation is whether a claimant has a right to compel deposition testimony of the claims adjuster. The WV Workers’ Compensation Office of Judges (OJ) recently issued a decision that bears directly on the issue of workers’ compensation claims adjuster testimony.

Decision Addresses Workers’ Compensation Claims Adjuster Testimony in WV

The OJ’s decision, dated July 24, 2017, holds that a claims adjuster may NOT be compelled to testify, at least as it pertains to a petition alleging that a claim was unreasonably denied.  

The administrative law judge’s decision in the case was based on two primary findings. First, it is important to note that the claims adjuster worked in WV. The judge noted that out-of-state claims adjusters were beyond compulsory process (that is, subpoena power) and that it would be unjust to afford greater legal protections to out-of-state adjusters than to in-state adjusters like the one in the case before the judge.

Second, the issue that brought the case before the OJ was a petition alleging that the claim administrator had unreasonably denied the claim. The only relevant evidence in this type of claim is what the workers’ compensation claims adjuster knew and relied upon when rendering the decision. The judge held that the testimony of the adjuster would constitute new evidence, which could not be considered in an unreasonable denial petition. In discussing this point, the judge noted that if the claimant were to prevail in his unreasonable denial claim, the claim administrator would be responsible for payment of the claimant’s attorney’s fees and costs.

What Happens Next? Will the Decision on Claims Adjuster Deposition Testimony Stick?

At this point, it is unknown whether the judge’s ruling is indicative of OJ policy going forward or whether it is merely the result of a single judge’s analysis.

In addition, the judge’s ruling on the claims adjuster’s deposition is subject to an appeal process. First, the ruling on whether the claim was or was not unreasonably denied is appealable to the WV Workers’ Compensation Board of Review. In that appeal, the claimant will be able to argue that the Office of Judges’ ruling on the deposition of the claims adjuster was reversible legal error. In turn, the Board of Review’s decision will be appealable to the West Virginia Supreme Court of Appeals.

WV Claims Adjuster Depositions in Other Workers’ Compensation Cases

Also, the decision leaves open a broader question, which is whether a claims adjuster can be forced to testify in a “protest” rather than a petition alleging unreasonable denial.

In most if not all cases, the adjuster’s testimony will be irrelevant in a protest. In addition, his or her testimony will often simply duplicate the claims file produced in discovery. And, of course, the judge’s well-reasoned holding recognizing the disparity in the location of various adjusters—that in-state adjusters should be afforded the same legal protections as out-of-state adjusters—applies with equal force in a protest or any other proceeding. Therefore, this decision provides employers, carriers, and their counsel with an excellent argument that all claims adjusters are beyond compulsory process and cannot be forced to testify in any workers’ compensation proceeding.

If you need legal advice in a WV workers’ compensation matter, you can trust the experienced attorneys at Jenkins Fenstermaker, PLLC. Contact me, Steven K. Wellman, by calling (866) 617-4736 or by completing our Contact form.

This article should be considered advertising material, Steven K. Wellman, responsible attorney. This article is being provided for informational purposes only and should not be construed as legal advice pertaining to any particular situation or circumstance.