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 93-1-11 - Occupational Pneumoconiosis

Current through Register Vol. XLI, No. 28, July 12, 2024
11.1.
				Non-medical Order
The order of the claim administrator determining whether the claimant has met the requirements set out in W. Va. Code §
									23-4-15b shall hereinafter be referred to as non-medical order. Litigation regarding such order including any issue regarding the chargeability of an employer, must be conducted by the parties during the non-medical litigation. The issue of chargeability shall not be litigated before the Occupational Pneumoconiosis Board during litigation on permanent partial disability awards for occupational pneumoconiosis, although medical questions involving the issue of causation of the claimant's occupational pneumoconiosis may be referred to the Board. The particular provisions of W. Va. Code § 23-5-15 b which make the final non-medical decision interlocutory and only appealable in conjunction with an appeal from an ALJ decision on a protest to the O.P. Board findings contradicts later amendments, to the same section, requiring a referral of the claim to the O.P. Board prior to the conclusion of non-medical litigation. It is the Office of Judges' interpretation of this conflict that the ALJ non-medical decision can be appealed even if no protest to the O.P. Board findings is currently pending at the time of the ALJ non-medical decision. It is not necessary for an employer to protest the Board's findings solely for the purpose of preserving their non-medical appeal rights.
11.2.
				Referrals to the Occupational Pneumoconiosis Board During Non-Medical
				Litigation
Referrals to the Occupational Pneumoconiosis Board during
				  non-medical litigation shall be made at the discretion of the Chief
				  Administrative Law Judge or his/her designee only when there is a reasonable
				  doubt about any medical question regarding the issues determined in the
				  non-medical Order. In making its opinion as to whether the claimant's
				  employment with a particular employer could have caused claimant's breathing
				  problems, the Occupational Pneumoconiosis Board shall review any other relevant
				  medical records and such other information in the record as the Board deems
				  relevant to the claimant's medical condition.
11.3. Hearings Before the Occupational
				Pneumoconiosis Board
A. Time Frames
The
				  procedure regarding requests for extensions of time frames and continuances of
				  hearings for claims involving permanent partial disability awards for
				  occupational pneumoconiosis shall be the same as in all other claims.
B. Initial Hearing
Upon
				  request of any party, the Office of Judges may set an initial hearing for the
				  sole purpose of examining the Occupational Pneumoconiosis Board members about
				  their findings based upon their examinations of the claimant upon which the
				  award in litigation was based. Requests for such hearings must be made no more
				  than ninety (90) days after the beginning of the protesting party's time frame.
				  At such initial hearing the parties shall not ask the Board to evaluate
				  evidence introduced in support of the respective positions unless it is agreed
				  by all parties that the claim shall be submitted for final determination at the
				  conclusion of that hearing. Initial hearings shall be set at the discretion of
				  the Office of Judges with due regard to the scheduling of all occupational
				  pneumoconiosis claims in litigation, particularly the amount of docket time
				  available before the Occupational Pneumoconiosis Board. The setting of such
				  hearings is discretionary and not a matter of right of any party.
C. Final Hearing
A final
				  hearing shall be scheduled after the expiration of the time frame. However, a
				  final hearing will be scheduled only when new evidence has been submitted to
				  the Office of Judges or when a party has timely requested a final hearing to
				  examine or cross-examine the members of the Occupational Pneumoconiosis
				  Board.
D. Extensions at
				Hearing
Extension of time frames may be granted by the presiding
				  Administrative Law Judge at hearings before the Occupational Pneumoconiosis
				  Board for good cause or if the requesting party can show that they have made a
				  request in a timely manner prior to the expiration of their time frame and that
				  the Office of Judges has not yet acted upon this request.
E. Hearing When Responding Party Is
				Unrepresented
In any case in which a non-protesting party (hereinafter
				  referred to as the responding party) is unrepresented, when new evidence has
				  been introduced before the Office of Judges by the protesting party, or a
				  request for hearing has been made, an Order may be issued at the end of the
				  protesting party's time frame requiring the responding party and the Offices of
				  the Insurance Commissioner, if a party, to show cause why the claim should not
				  be set for hearing after which the claim shall be submitted for final
				  determination. If no response is received or no good cause is shown by the
				  responding party or the Offices of the Insurance Commissioner, if a party,
				  within fifteen (15) days of the mailing of such Order, the claim shall be set
				  for hearing before the Occupational Pneumoconiosis Board.
F. Failure to Prosecute
In protests in
				  which no new evidence has been introduced before the Office of Judges by the
				  protesting party, or a request for hearing has not been made, the provisions of
				  section 10 [93-1-10 et seq.], "Failure To Prosecute Protest", shall
				  apply.
G. Scheduling of
				Hearing
In protests in which evidence has been introduced by either a
				  protesting or responding party, a hearing shall be scheduled before the
				  Occupational Pneumoconiosis Board after the expiration of the responding
				  party's time frame unless the parties agree that a hearing may be set
				  earlier.