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 102-1-7 - Evidence: Exchange and Filing

Current through Register Vol. XLI, No. 28, July 12, 2024
7.1. Evidence
				submitted to the Board of Review is generally of three types: documentary
				evidence (i.e., reports, affidavits, treatment records, etc.); testimony of
				witnesses (either obtained during Board of Review scheduled hearings or during
				depositions scheduled by the parties); and physical evidence (i.e.,
				photographs, video recordings, etc.). This section of the Rule relates to
				obtaining evidence, presenting evidence, exchanging evidence, and identifying
				evidence for the Board of Review.
7.2. Rules of evidence. The Board of Review
				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. The Board of
				Review shall receive the relevant testimony and other timely evidence of the
				parties and witnesses, as may further be limited in this Rule, and subject to
				objection by any party. 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 may be accepted upon a showing of
				good cause. Evidence which was not copied to all other parties may be rejected
				by the Board of Review.
7.3.
				Discovery
7.3.1. Claim administrators 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 Board of Review
				to allow for a reasonable opportunity to discover evidence relevant to the
				protest. However, for those issues that the Legislature has mandated the Board
				of Review to provide an expedited process, in W. Va. Code §
										23-4-1c(a)(3)
				and elsewhere, the time available for discovery should be limited. All
				discovery and presentation of evidence must be completed during the existing
				time frame.
7.3.2. Claim
				administrators shall provide a complete copy of the clam file to a party
				requesting the file within thirty (30) days of receipt of any such request. The
				claim administrator may require that any request for a file copy include a
				subpoena duces tecum or fully executed authorization from the claimant to
				release the material. The claim file shall include copies of all applications
				for benefits, all medical documents received in relation to the claim file, all
				orders and notices issued by the claim administrator, and all documents,
				records, or other materials upon which claim decisions were based. If the
				party's efforts to obtain the claim file from the claim administrator are
				unsuccessful, the party may submit to the Board of Review a motion to require
				the claim administrator to provide the claim file.
7.3.3. Interrogatories
7.3.3.a. Written interrogatories may be
				utilized in the discovery process.
7.3.3.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.
7.3.3.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 Board of Review.
7.3.3.d. The
				Board of Review 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 Board of Review may issue an order to show cause.
				Absent sufficient response, the Board of Review may, in its discretion, impose
				any of the following sanctions: decide the issue against the non-cooperating
				party, issue an order dismissing the protest of the non-cooperating party, and
				take other actions as justified.