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 102-1-11 - 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 a 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 Occupational
				Pneumoconiosis Board.
11.2.
				Referrals to the Occupational Pneumoconiosis Board during non-medical
				litigation shall be made at the discretion of the Board of Review 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
				relevant medical records and such other information in the record as the
				Occupational Pneumoconiosis Board deems relevant to the claimant's medical
				condition.
11.3. Hearings before
				the Occupational Pneumoconiosis Board
11.3.1.
				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.
11.3.2. Initial hearing.
				Upon request of any party, the Board of Review 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 Occupational
				Pneumoconiosis 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 Board of Review 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.
11.3.3. 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 Board of
				Review or when a party has timely requested a final hearing to examine or
				cross-examine the members of the Occupational Pneumoconiosis Board.
11.3.4. Extensions at hearing. Extension of
				time frames may be granted by the Board of Review 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 Board of Review has not yet acted upon this
				request.
11.3.5. 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 Board of Review 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 it is a
				party) within fifteen (15) days of the mailing of such order, the claim shall
				be set for hearing before the Occupational Pneumoconiosis Board.
11.3.6. Failure to prosecute. In protests in
				which no new evidence has been introduced before the Board of Review by the
				protesting party, or a request for hearing has not been made, the provisions of
				the section on "Failure To Prosecute Protest" shall apply.
11.3.7. 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.