West Virginia Code of State Rules › Agency 93 - Workers' Compensation Office Of Judges › Title 93 - PROCEDURAL RULE WORKERS' COMPENSATION OFFICE OF JUDGES › Series 93-01 - Litigation Of Protests › Section 93-1-7 - Evidence; Exchange and Filing

Current through Register Vol. XLI, No. 28, July 12, 2024
7.1.
				Introduction
Evidence submitted to the Office of Judges is generally of
				  three types: documentary evidence (i.e., reports, affidavits, treatment
				  records, etc.); testimony of witnesses (either obtained during Office of Judges
				  scheduled administrative hearings or during depositions scheduled by the
				  parties); and physical evidence (i.e., photographs, video recordings, etc.).
				  This section of the Rule relates to the obtaining, presenting, exchanging, and
				  identifying for the Office of Judges, of all evidence regardless of
				  type.
7.2. Rules
A. Rules of Evidence
The Office of
				  Judges shall not be bound by the usual common law or statutory rules of
				  evidence, or by formal rules of procedure, except as provided by these rules.
				  An Administrative Law Judge or Hearing Examiner shall receive the relevant
				  testimony and other timely evidence of the parties and witnesses, as may
				  further be limited by subsections 8.1 and 8.5 [93-1-8.1 & 93-1-8.5] of this
				  rule, and subject to objection by any party. Provided, that the parties shall
				  not burden the record with cumulative, redundant, or repeated filing of similar
				  evidence. All evidence filed must be relevant, material, credible and reliable.
				  Evidence submitted or filed after the expiration of a time frame, and evidence
				  which was not copied to all other parties, shall be rejected by the Office of
				  Judges and shall not be part of the record upon which the decision is made.
				  Untimely evidence may be accepted upon a showing of good cause.
B. Discovery
1. Generally
Amendments to the W. Va.
				  Code in 2003 and 2005 transferred to claim administrators the authority to
				  decide claim issues. With this control over the process, claim administrators
				  can, and should, begin the discovery process early instead of waiting until
				  after formal litigation has commenced. The early start of discovery is
				  particularly important when the issue appealed is required by law to be
				  expedited.
The entitlement of all parties to due process of law
				  requires the Office of Judges to allow for a reasonable opportunity to discover
				  evidence relevant to the protest. However, for those issues that the
				  Legislature has mandated the Office of Judges to provide an expedited process,
				  in W. Va. Code §
												23-4-1c(a)(3) and elsewhere, the time available for
				  discovery must be limited. The expedited process cannot be circumvented merely
				  by a request for discovery opportunity. All discovery and presentation of
				  evidence must be completed during the existing time frame. An extension may
				  only be granted as provided in the rules controlling the extension of expedited
				  hearing Time Frames.
2.
				Interrogatories
(a) Written interrogatories
				may be utilized in the discovery process but only for those protests where the
				time frame exceeds sixty (60) days.
(b) Each party shall be limited to a maximum
				of thirty (30) written interrogatories, with each part or subpart of a numbered
				interrogatory being construed as a separate interrogatory.
(c) Each interrogatory shall consist of a
				single question, and shall be answered separately and fully in writing under
				oath, unless it is objected to, in which event the reasons for objection shall
				be stated in lieu of an answer. The party upon whom the interrogatories have
				been served shall serve a copy of the answers within thirty (30) days after
				service of the interrogatories. A shorter or longer period of time for
				answering or objecting to an interrogatory may be allowed for good cause shown.
				If the party issuing interrogatories does not comply with the provisions and
				limitations of this Rule, then the responding party need not respond to any
				part or subpart of the proffered interrogatories. Issues regarding
				interrogatories not resolved between the parties may be dealt with by Motion to
				the Office of Judges.
(d) The
				Office of Judges may issue an Order to Compel completion of interrogatories
				upon a showing of unjustified failure to cooperate. If a party fails to comply
				with an Order to Compel, the Office of Judges will issue an Order to Show
				Cause. Absent sufficient response, the Office of Judges may, in its discretion,
				impose any of the following sanctions:
(1)
				Decide the issue against the non-cooperating party;
(2) Issue an order dismissing the protest of
				the non-cooperating party;
(3) Take
				other actions as justified.
3. Medical Authorization.
Pursuant to W.
				  Va. Code §
												23-4-7(b) the claimant agrees by filing an application for
				  benefits that any physician may release certain medical information to the
				  claimant's employer or its representative, to the Offices of the Insurance
				  Commissioner, and to any private carrier involved in the claim. Notwithstanding
				  this statutory language, many hospitals and other medical providers require a
				  signed medical authorization prior to releasing medical information to anyone
				  other than the claimant. The claimant has a duty to sign a medical
				  authorization that is in compliance with all applicable statutes and applicable
				  case law in order to provide the employer with relevant medical records.
The Office of Judges may issue an Order to Compel the signing
				  of the authorization upon a showing of unjustified failure to cooperate. If a
				  party fails to comply with an Order to Compel, the Office of Judges will issue
				  an Order to Show Cause. Absent sufficient response, the Office of Judges may,
				  in its discretion, impose any of the following sanctions:
(a) Decide the issue against the
				non-cooperating party;
(b) Issue an
				order dismissing the protest of the non-cooperating party;
(c) Take other actions as justified.
C. Rebuttal
				Evidence
The Office of Judges recognizes that the parties may, at times,
				  need to offer rebuttal evidence. Rebuttal evidence may, and should, be filed
				  during any Time Frame or extension. In cases where evidence is filed at or near
				  the end of the existing Time Frame, an extension may be granted in accordance
				  with the rules controlling the extension of Time Frames. Rebuttal may take the
				  form of, but not be limited to, cross-examination of witness, examination of
				  the claimant, or filing of expert reports; provided, that additional
				  examination of the claimant may not exceed the limit on the number of
				  examinations that may be obtained under the provisions of subsection 7.4
				  [93-1-7.4] of this Rule.