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 93-1-10 - Failure to Prosecute Protest

Current through Register Vol. XLI, No. 28, July 12, 2024
10.1.
				Introduction
The Workers' Compensation Office of Judges is provided with
				  limited resources with which to resolve many thousands of protests filed each
				  year. Frequently the protesting party fails to submit any evidence, offer any
				  testimony, or provide any argument explaining the basis for the protest.
This section does not imply, or create, a presumption that
				  the ruling of the claim administrator is correct. In fact, the Office of Judges
				  recognizes that there may occur occasion when claim administration decision is
				  incorrect on its face. Such an occasion should not require the party to submit
				  new evidence or testimony in order to prevail. However, the protesting party
				  should offer explanation as to why the ruling is believed to be
				  incorrect.
The Office of Judges might reasonably expect the protesting
				  party to formally withdraw its protest when no longer interested in pursuing
				  the protest, but the history of protest litigation reveals that, in many cases,
				  for many different reasons, the party will not always do so. An inefficient
				  protest resolution process is created when the Office of Judges must guess why
				  a party protested or if the party still intends to pursue the protest. The
				  Office of Judges' must divert resources from processing contested issues in
				  order to process the non-contested issues. Expenses are unnecessarily incurred
				  by the non-protesting parties in defending the protested decision. If the
				  protesting party does not submit evidence, testimony, or reason for the
				  protest, then the resources required for resolving a protest, which the party
				  may no longer be interested in pursuing, would better be utilized in resolving
				  actually disputed claims.
Accordingly, this section allows for an efficient resolution
				  of such protests where the party does not proceed, does not explain the basis
				  for the protest, and does not withdraw the protest.
10.2. Requirements
The party protesting
				  a decision of the claim administrator, has the burden of presenting evidence or
				  argument in support of its position. Evidence or argument must be filed before
				  the expiration of the protesting party's time frame. Unless the protesting
				  party timely files evidence or argument, the claim administrator's decision
				  will be affirmed.
The requirement of this section may be met by the filing, or
				  receipt, during the party's Time Frame, of any of the following:
A. Documentary or physical evidence in
				addition to that which was originally considered by the claim
				administrator;
B. Testimony at
				administrative hearing scheduled by the Office of Judges;
C. Argument in lieu of evidence (must be
				submitted during Time Frame);
D.
				Notice or motion identifying relevant documents from other protests involving
				same parties.
The requirement of this section shall not be met by a party
				  merely supplying the Office of Judges with a copy of any information already
				  submitted to the claim administrator, or with a copy of any order of the claim
				  administrator. The intent of the requirement is to compel the protesting party
				  to submit new information or, in the alternative, an explanation of the basis
				  for the protest.