West Virginia Code of State Rules › Agency 102 - Workers' Compensation Board Of Review › Title 102 - PROCEDURAL RULE WORKERS' COMPENSATION BOARD OF REVIEW › Series 102-01 - Rules of Practice and Procedure and Litigation of Protests › Section 102-1-6 - Litigation Process

Current through Register Vol. XLI, No. 28, July 12, 2024
6.1. Filing of
				protests and other documents. Electronic filing of documents may be required by
				the Board of Review. When electronic filing is required, the Board of Review
				may permit a party to submit a paper document if good cause is shown.
6.2. Time period for filing a protest. Any
				protest under this section shall be filed with the Board of Review within sixty
				(60) days after receipt of the notice set forth in W. Va. Code § 23-5-1a.
				As provided in W. Va. Code § 23-5-6a, the period within which a protest
				must be filed may be expanded to one hundred twenty (120) days for good cause
				or excusable neglect. Provided, however, that a protest filed alleging that a
				private carrier or self-insured employer, whichever is applicable, has failed
				to timely issue a ruling upon any application or motion as provided by law and
				as set forth in W. Va. Code §
									23-4-1c(a)(3), is not subject to the time
				periods set forth herein.
6.3.
				Acknowledgment of filing a protest. The Board of Review shall determine if a
				protest is timely filed, acknowledge receipt of timely filed protests, issue
				Time Frame Orders in regard to the litigation of such protests, order the
				parties to participate in mediation, order the expedited processing of the
				claim, or take such other action as the Board of Review deems necessary. If a
				protest does not include the order (ruling) to which the protest has been made,
				the Board of Review shall notify the party of the deficiency and provide the
				party with a time period within which to correct the deficiency. If a protest
				does not show that a copy was served on the claim administrator and all
				parties, the Board of Review shall provide a copy to the claim administrator
				and the parties and shall inform the protesting party that copies of future
				submissions must be provided to the claim administrator and the
				parties.
6.4. Time Frame Order. A
				Time Frame Order shall set forth the sequence in which evidence shall be
				presented by the parties and the time periods within which such evidence shall
				be presented. A Time Frame Order may include such other matters as deemed
				appropriate by the Board of Review. A Time Frame Order shall be interlocutory
				in nature and not subject to appeal. A Time Frame Order may be modified,
				amended or extended at the request of a party, but only for good cause shown.
				The Board of Review may modify or amend a Time Frame Order, without such a
				request, for appropriate administrative purposes. A request for modification,
				amendment, or extension, of the time frame must be in writing and must be made
				no later than ten (10) days prior to the expiration of the existing Time Frame
				Order. Any extension request filed later than ten (10) days prior to the
				expiration of the requesting party's existing Time Frame Order shall be denied
				unless good cause is found for the untimeliness of the request. Any request,
				timely or otherwise, for an extension of time must set forth the reason an
				extension is necessary and shall include a statement of the efforts the party
				has made to comply with the Time Frame Order.
6.5. Closing arguments and arguments in lieu
				of evidence. Except for purposes of the section on "Failure to Prosecute
				Protest," parties may file a closing argument within ten (10) days after the
				expiration of the final time frame. A closing argument filed later than ten
				(10) days after the expiration of the final time frame may be considered at the
				discretion of the Board of Review. As noted in the section on "Failure to
				Prosecute Protest," argument submitted in lieu of evidence must be filed within
				the protesting party's time frame.
6.6. Order of presentation of evidence.
				Evidence in regard to a protest shall be presented either concurrently or
				consecutively as set forth by Time Frame Order. The protesting party shall have
				the burden of going forth with evidence first in those protests with
				consecutive time frames. In the event that the claimant and at least one
				employer have protested, the parties shall proceed concurrently.
6.7. Manner and receipt of notice. Any notice
				required by these Rules shall be deemed adequate if served upon counsel of the
				other parties (or upon the party if not represented by counsel) as may be
				permitted in Rule 5 of the West Virginia Rules of Civil Procedure or by
				electronic means. Receipt of notice shall be presumed seven (7) calendar days
				after the date of notice. If service at the last known address is returned by
				the United States Postal Service as undeliverable, a party shall notify the
				Board of Review and thereafter need not continue serving notices at that
				address. It is the duty of each party to notify the Board of Review and all
				other parties of any change of address.
6.8. Further action. The Board of Review
				shall review the transcripts of the hearings, testimony, the evidence, and
				arguments, and take such action with regard to the issues as shall be
				appropriate. The Board of Review may order further action in a protest when it
				appears that a legal issue has not been sufficiently addressed, or when the
				record appears to have been burdened with excessive submissions or
				designations. Any further action so ordered shall be limited to those matters
				specifically referenced in the order. Such further action may include
				additional hearings, the requirement of the filing of briefs or closing
				arguments, the requirement of an explanation of the relevance and materiality
				of any evidence, or such other action as may promote the ends of justice and
				judicial economy. If the Board of Review finds that a protest relates to an
				application for benefits that has been mischaracterized or misclassified by the
				claim administrator, the Board of Review may
sua sponte
, or
				upon motion by either or both of the parties, remand the matter in litigation
				to the claim administrator for correction, without ruling upon the merits of
				the protest. The remand order may be in the form of either an interlocutory or
				an appealable decision, within the reasoned discretion of the Board of
				Review.