Update of the

Office of Judges has Reduced
the Number of Pre-June 1995
Protests in Its Backlog
Office of Judges Has Eliminated
Its Backlog of Cases Ready
for Final Decision for
Over 90 Days
Backlog of "Old Law" Permanent Total
Disability Cases Created by the
Worker's Compensation Division
Continues to Decline
Office of Judges Has Reduced
Its Use of Contract Attorneys
Chief Administrative Law Judge Does Not
Comply With Reporting Requirements


The West Virginia Legislature created the Office of Judges (OOJ) as an independent organization headed by a Chief Administrative law Judge. The Governor, with the advice and consent of the Senate, appoints the Chief Administrative Law Judge (ALJ). The ALJ serves at the will and pleasure of the Governor. According to provisions in §23-5-9, as amended, the OOJ has the statutory power to hear and determine disputed claims in accordance with the provisions of this article, establish a procedure for hearing disputed claims, take oaths, examine witnesses, issue subpoenas, establish the amount of witness fees, keep such records and make such reports as are necessary for disputed claims, and exercise such additional powers, including the delegation of such powers to administrative law judges or hearing examiners as may be necessary for the proper conduct of an organization for administrative review of disputed claims, as stated in §23-5-8 of the West Virginia Code, as amended.

Prior to the creation of the OOJ, the Commissioner of Worker's Compensation and their Legal Division were responsible for the dispute resolution process within the agency. However, the Worker's Compensation appeals process was criticized for three obvious reasons: a lack of due process, a lack of substance within legal decisions, and a lack of expediency. To remedy this blatant deficiency of the Worker's Compensation Division, the OOJ was created by a special session of the Legislature in June 1990. Under West Virginia Code §25-5-1, the OOJ was granted jurisdiction over all new protest requests. The OOJ's administrative appellate power commenced on July 1, 1991. All cases, which were in the litigation process were transferred to the jurisdiction of the OOJ on January 1, 1991.

By creating the OOJ, the Legislature addressed the structural weaknesses within the Worker's Compensation dispute resolution process. First, the lack of due process was remedied by establishing the OOJ as an independent organization, which is headed by the Chief Administrative Law Judge (ALJ) who is appointed by the Governor and confirmed by the Senate. The Chief ALJ can only be removed by a vote of two thirds of the members of the Compensation Programs Performance Council and shall not be removed except for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then only after he or she has been presented in writing with the reasons for their removal and is given an opportunity to respond and to present evidence (WVC §25-5-8.) Second, the lack of substance with prior Worker's Compensation administrative law decisions was remedied by requiring that all OOJ decisions contain findings of fact and conclusions of law. Lastly, the West Virginia Legislature attempted to remedy the lack of expediency in processing cases by requiring that the OOJ manage and control the litigation process.

On March 16, 1993, the West Virginia Supreme Court of Appeals, citing section 2.5 of the American Bar Association's Standards Relating to Court Delay Reduction stated "under the current procedure, the time frame order is entered automatically, and, unless there is an objection, nothing more is done with the claim until the time frame expires (Lyons v. Richardson, 189 W. Va. 157,54.) As a result of the West Virginia Supreme Court of Appeals' ruling, the OOJ instituted Time Standards to comply with the Court's holding and expedite the dispute resolution process. Time Standards are shown in Table 1.

Table 1
Office of Judges Time Standards

Protest Type
Time Standards
1) Compensability - Protests concerning whether an injury or disease occurred in the course of and as the result of employment. 6 Months (180 Days)
2) Rehabilitation - Protests concerning whether an individual is entitled to receive physical or vocational rehabilitation benefits as a result of a compensable injury. 10 Months (300 Days)
3) Medical Treatment - Protest concerning whether an individual should receive a particular kind of medical treatment or medical equipment ain regard to a compensable injury. 4 Months for claimants (120 Days) 

6 Months for employers (180 Days) 

4) Temporary Total Disability Benefits - Protest concerning whether an individual, as a result of a compensable injury, is temporarily unable to perform the job that he or she had at the time the injury occurs or at a later time if necessary.
6 Months (180 Days)
5) Dependent Benefits (104 Weeks) - Protest concerning whether as individual is a dependent of a person receiving permanent total disability and whether that person is entitled to receive the 104 weeks of benefits provided by law. 
4 Months (120 Days)
6) Dependent Benefits (Fatal) - Protest concerning whether a compensable injury or disease was a material contributing factor to the death of a deceased claimant.
12 Months (360 Days)
7) Permanent Partial Disability - Protest concerning whether claimants have any permanent partial (not total) disability as a result of a compensable injury.
15 Months (450 Days)
8) Occupational Pneumoconiosis Non-Medical - Protest concerning whether an individual has been exposed to the hazards of occupational pneumoconiosis for the requisite time period provided by law whether any impairment is presumed to have been caused by such exposure, and whether any award should be allocated among different employers. 
9 Months (270 Days)
9) Permanent Total Disability Threshold- Protest concerning whether an individual has 50% whole body medical impairment resulting from compensable injuries so as to qualify that claimant for consideration for permanent total disability.
8 Months (240 Days)
10) Permanent total Disability Entitlement - Protest concerning whether a claimant is permanently and totally disabled in accordance with law.
15 Months (450 Days)
11) Permanent Total Disability Onset/Changeability - Protest concerning the date permanent total disability commenced once it has been determined that an individual is permanently and totally disabled.
4 Months (120 Days)
12) Permanent Total Disability Second Injury - Protest concerning whether a permanent disability award should be paid from the second injury fund.
4 Months (120 Days)
13) TTD Reopening - Protest concerning whether the claim of an individual who has suffered a compensable injury should be reopened.
5 Months (150 Days)

Issue Area 1: The Office of Judges has Reduced the Number of Pre-June 1995 Protests in Its Backlog.

The original performance evaluation conducted by the Legislative Auditor on the Office of Judges uncovered an estimated 6,000 to 8,000 protests that were in its backlog prior to June 1, 1995. The significance of the June 1, 1995 date is that it is the date that the OOJ's new computer system went online. At that time the computer system did not have a programmed report that identified active cases filed prior to June 1, 1995. Since then, the OOJ completed a project that accurately identified the number of pre-June 1, 1995 protests backlogged in its inventory. Since 1998, the number of pre-June 1995 protests has dropped significantly, from 3,595 to 619 (See Table 2 for a full breakdown of the type and number of protests). The OOJ needs continue to reduce the number of pre-June 1995 protests to zero since all of these protests have surpassed their respective time standards.

Table 2
Pre-June 1, 1995 Protests

Compensability 53 5 2
Rehabilitation 1 1 0
Medical Treatment/Equipment 75 20 3
Temporary Total Disability 23 5 1
Dependent Benefits 104 161 21 21
Dependent Benefits Fatal 60 121 38
Permanent Partial Disability 2,852 56 15
Occupational Pneumoconiosis (non-Medical) 123 349 50
Occupational Pneumoconiosis (PPD) NA 977 448
Permanent Total Disability Threshold 2 0 0
Permanent Total Disability Entitlement 127 55 32
Permanent Total Disability Onset Date 5 3 3
Permanent Total Disability 2nd Injury 20 3 2
Reopening 55 18 4
System Resolution Only NA 117 0
Miscellaneous 38 0 0
TOTAL 3,595 1,751 619

Recommendation 1:
The Office of Judges should complete all pre-June 1, 1995, protests through its appeals process in accordance with time standards as established in its regulations.

Issue Area 2: The Office of Judges Has Eliminated Its Backlog of Cases Ready for Final Decision for Over 90 Days.

In the original performance review, the OOJ had 3,254 protests which had a final hearing but were not yet decided. As of October 6, 2000, the OOJ had 2,802 protests awaiting a final decision. Of these decisions, 61% occur within thirty days. All decisions were completed within ninety days. This is a significant improvement over previous years (See Table 3 for a complete description of the type of protest and the number of days since the final hearing).

Table 3
Cases In The OOJ's System (10/06/00)

31-60 61-90 91-180 181-360 361+
Compensability 180 61 11 0 0 0 252
Rehabilitation Services 38 8 6 0 0 0 52
Medical Treatment/Equipment 170 22 10 0 0 0 202
Temporary Total Disability 165 35 44 0 0 0 244
Dependent Benefits 1 3 0 0 0 0 4
Dependent Benefits Fatal 24 28 8 0 0 0 60
OP Non-Med 152 63 26 0 0 0 241
PTD Threshold 0 3 1 0 0 0 4
PTD 55 24 88 0 0 0 167
PTD Onset 9 2 3 0 0 0 14
PTD Second Injury 0 0 1 0 0 0 1
Reopening 148 44 32 0 0 0 224
OP Board PPD 241 84 33 0 0 0 358
PPD Injury 290 329 43 0 0 0 662
Employer Treatment 245 62 10 0 0 0 317
2000 TOTAL 1718 768 316 0 0 0 2802
1999 TOTAL 1248 1311 740 122 0 0 3424
1998 TOTAL 1116 345 370 209 28 4 2072
1997 TOTAL 1336 791 492 384 147 104 3254

Issue Area 3: The Backlog of Permanent Total Disability Cases Decided by the Worker's Compensation Division Continues to Decline.

The 1997 performance review identified a potential crisis looming on the horizon for the OOJ. A backlog of approximately 4,000 Permanent Total Disability (PTD) cases had accumulated in the Workers Compensation Division. The West Virginia Supreme Court of Appeals recalled Judge James Holiday to conduct all proceedings pertaining to Worker's Compensation on behalf of the Court. On October 9, 1997, Judge Holiday signed an order requiring the Worker's Compensation Division to render decisions on approximately 1,500 backlogged "Old Law" PTD cases by February 15, 1998 and approximately 2,500 Ferral "Old Law" cases by June 15, 1998. The OOJ estimated that two thirds of the cases would be appealed to them.

PTD protests are the most complex received by the OOJ. They are only assigned to its staff of administrative law judges. Neither paralegal writing teams, nor contract attorneys are permitted to handle these types of protests because of their complexity. The OOJ received 253 PTD protests between October 1999 and September 2000, an average of 21 protests a month. This amount of protests is considered normal. Thus, the OOJ has successfully dealt with the PTD backlog created in 1998. Table 4 shows the total and average monthly number of protests from January 1996 to September 2000.

Table 4
Number of PTD Protests Received by the OOJ,
January 1996 to September 2000




1/96 - 12/96 112 9
1/97 - 10/97 310 31
11/97 - 10/98 1393 116
11/98 - 9/99 684 68
10/99 - 9/00 253 21

According to the OOJ, actual completion dates for these cases may vary substantially from the projections based on extensions requested by the parties involved.

Issue Area 4: The Office of Judges Has Reduced Its Use of Contract Attorneys.

The OOJ has had to use contract attorneys to write decisions for some of its protests. The goal of the OOJ has been to reduce and eliminate the need for contact attorneys and complete all decision writing in house. The OOJ has reduced its expenditures on contract attorneys since 1997. However, since the January 2000 Update, the OOJ has not significantly reduced its expenditures or reliance on contract attorneys. In 1997, the monthly average paid for contract attorneys was $135,633. In 1999 the monthly average was reduced by 75%. However, the OOJ expenditures for contract attorneys in 2000 decreased slightly.

Table 5
Expenditures For Contract Attorneys (1995-2000*)

1995 $1,862,807 $155,234
1996 $1,453,800 $121,150
1997 $1,627,600 $135,633
1998 $1,058,924 $88,244
1999 $470,262 $39,189
2000* $344,200
TOTAL $6,817,593
*Includes 1/00 through 9/00.

The OOJ claimed that the large number of PTD cases caused by the mandamus actions in regards to the Workers' Compensation Division was responsible for the continued use of contract attorneys. The January 2000 Update reported that the OOJ estimated that it would take six to ten months to complete these cases. The number of PTD cases received by the office of Judges has dropped significantly since the January 2000 update.

Recommendation 2:
The Legislative Auditor recommends that the Office of Judges should continue in its efforts to eliminate the use of contract attorneys and appear before the Joint Committee on Government Operations during the 2001 Interim Session to give an oral presentation and provide a written status report on this issue.

Issue Area 5: The Administrative Law Judge Does Not Comply With Reporting Requirements.

The Chief Administrative Law Judge is required by §93-2-3 of the Code of State Rules to file a report indicating the degree of compliance with time standards The section states:

On December 31, 1995 and on September 1, of each year thereafter, the Chief Administrative Law Judge shall file a report with the Governor, the Joint Legislative Committee on Government and Finance or such other committee as shall be designated by the President of the Senate and the Speaker of the House, and with the Compensation Programs Performance Council indicating the degree of compliance with these rules. Such report shall include, with respect to any area of non-compliance with these rules, the reason for non-compliance together with a plan to secure compliance with these rules.

The Joint Committee on Government and Finance does not receive this report. Nor does the Clerk of the House of Delegates. The Assistant Clerk of the State Senate informed the Legislative Auditor that:

The West Virginia Senate received an annual report from the Worker's Compensation Office of Judges in 1996. This has been the only year in which we received such report.

The chief ALJ informed the Legislative Auditor that the report had not been filed for either 1999 or 2000. According to the ALJ:

One June 30, 1999, an amended time standard rule was filed to reflect changes made to applicable Workers Compensation statutes. The effective date of the amended rule was August 1, 1999. The amended rule altered the reporting requirements in several substantial ways and the case management system in place at the time did not collect the data needed to report on the amended requirements. The Office of Judges was, therefore, unable to comply at that time with the reporting requirement of the rule.

The Office of Judges reports that they have been working on developing and implementing a new case management system. The new system was operational on April 27, 2000, however, there were substantial problems with it. There are several modules not functioning within the OOJ's information management system. One of the non-functioning modules is the reporting capability. The OOJ states that it will file a report with the Governor and the Legislature stating that a report will not be filed due to system problems it is experiencing. The OOJ's complete explanation of its failure to file these reports is available in Appendix A.

Recommendation 3:
The Workers' Compensation Office of Judges should make every attempt to compile the information and submit a report to the Joint Committee on Government and Finance, as required, before the 2001 Regular Legislative Session.