Workers' Compensation Office of Judges

OOJ Has Identified Protests Filed Prior to June 1, 1995

OOJ Has Improved Compliance with Final Decision Time Frame

Increase in Number of Permanent Total Disability Cases

Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex

(304) 347-4890

January 1999

The West Virginia Legislature created the Office of Judges (hereafter 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 (hereafter ALJ); however, he/she is a will and pleasure official. According to provisions of §23-5-9, the Chief ALJ has the statutory power to hear and determine all 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.

Prior to creation of the OOJ, the Commissioner of Workers' Compensation and their legal division were responsible for the dispute resolution process within the agency. However, the Workers' 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 Workers' Compensation Division, the OOJ was created by a special session of the West Virginia 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 West Virginia Legislature addressed the structural weaknesses within the Workers' 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 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 opportunity to respond and to present evidence (WVC §25-5-8). Second, the lack of substance within previous Workers' 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. The OOJ is still attempting to comply with this issue. Nevertheless, three issues compound the OOJ's problem of case management: the inherited 30,000 claim backlog (which the Chief ALJ claims to have largely eliminated), the conversion from a manual processing and record keeping system to an automated case management system, and the difficulty of changing the culture of the Workers' Compensation dispute resolution process.

On March 16, 1993, the West Virginia Supreme Court, citing section 2.50 of the American Bar Association's Standards Relating to Court Delay Reduction ("the court, not the lawyers or litigants, should control the pace of litigation.") 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's 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 TypeTime Standards
1) Compensability - Protests concerning whether an injury or disease occurred in the course of and as a 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 in 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 the compensable injury, is temporarily unable to perform the job he/she had at the time the injury occurred or at a later time if necessary. 6 Months (180 Days)
5) Dependent Benefits (104 Weeks) - Protest concerning whether an 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.18 Months (540 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 total 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 Identified the Number of Pre-June 1, 1995 Protests in Its Inventory

The performance evaluation that the Legislative Auditor conducted on the Office of Judges (OOJ) last year uncovered that the agency estimated that it had an estimated 6,000 to 8,000 protests that were in its inventory prior to June 1, 1995. The significance of June 1, 1995 is that it is the date that the OOJ's new computer system went online. At that time the new 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 around the end of June of this year that accurately identified the number of pre- June 1, 1998 protests that were in the OOJ's inventory. As of October 31, 1998, there were 3,595 pre- June 1, 1995 protests in the OOJ inventory (see Table 2). The OOJ stated that once these protests were identified, they were time framed for movement through the appeals process.


Compensability 53
Medical Treatment/Equipment75
Temporary Total Disability23
Dependent Benefit 104161
Dependent Benefit Fatal60
Permanent Partial Disability2852
Occupational Pneumoconiosis
Permanent Total Disability Threshold2
Permanent Total Disability Entitlement127
Permanent Total Disability Onset Date5
Permanent Total Disability 2nd Injury20
Miscellaneous 38
Recommendation 1:

The Office of Judges must make every attempt to complete all pre-June 1, 1995 protests through their appeals process in accordance with time standards as established in regulations.

Issue Area 2: The Office of Judges Has Improved Its Compliance to Making Final Decisions Within Thirty Days

The OOJ has improved its compliance with §23-5-9 of the West Virginia Code which requires that a decision be made within thirty days after the final hearing that either affirms, reverses or modifies the action of the Workers' Compensation Division. The OOJ compliance rate to rendering final decisions within the mandated thirty day time period fluctuated between 10% and 30% in last years report (see Figure 1). However, the months covered in this year's update, December 1997 through September 1998, which are identified as the last nine bar sets in Figure 1, showed some improvement. The compliance rate has shown a consistent fluctuation between 30% and 50% since May of this year.
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The Office of Judges has increased its monthly average for number of decisions written by almost 500 per month since last year. This average was 1433 decisions per month for the time period covered in last year's report. The time period for the update showed an increase to 1928 decisions per month (see Figure 2).

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In last year's report the OOJ had 3,254 protests which had a final hearing but were not yet decided. Of this number, approximately, 1,900 exceeded the thirty day time period for a final decision (see Table 3). The OOJ has reduced the number of protests that have had a final hearing and awaiting a final decision.


PROTEST TYPE0-3 031-6 061-9 091-1 80181-36 0360 +TOTALS
Rehabilitation Services31219121276
Medical Treatment/Equipment21612854801720515

Temporary Total Disability
Dependent Benefits46420016
Dependent Benefit for Fatality116761334
Permanent Partial Disability52534528012925281332
Occupational Pneumoconiosis
Permanent Total Disability Threshold: 50% medical impairment2410018
Permanent Total Disability 277251481118227
Permanent Total Disability: Onset Date for calculation of benefits1710530136
Reopening of any previous claim7230153598169

As of October 31, 1998, the OOJ had 2,072 protests submitted for decision but not yet decided, a decrease of approximately 1,200 protests or 36% of last year's amount. Of this number, only 963 exceeded the thirty day time period which is half the number of protests as last year. Thirty-six percent of those cases were less than thirty days past the time limit (see Table 4). The number of protests that have been waiting for a decision for over a year dropped from 104 protests in 1997 to just 4 in 1998 (see Table 5). It should be noted that the current number of protests that have had their final hearing and awaiting final decision is approximately equal to the number of decisions that are written each month by the OOJ which is around 2,000.

PROTEST TYPE0-3031-6 061-9 091-18 0181-360360 +TOTALS
Rehabilitation Services143362028
Medical Treatment/Equipment15410184931235
Temporary Total Disability883337441167
Dependent Benefits110141017
Dependent Benefit for Fatality130040017
Permanent Partial Disability20913619543100593
Occupational Pneumoconiosis
Permanent Total Disability Threshold: 50% medical impairment0000000
Permanent Total Disability 92150017
Permanent Total Disability: Onset Date for calculation of benefits110200013
Permanent Total Disability: Second Injury1000001
Occupation Pneumoconiosis26152465040413
Reopening of any previous claim36245100075


0-3031-6061-9091-180181-36 0360+TOTALS
1997 Totals13367914923841471043254
1998 Totals11163453702092842072
Differenc e2204461221751191001182

Recommendation 2:

The Legislative Auditor recommends that an additional compliance monitoring and further inquiry update of the Workers' Compensation Office of Judges be conducted within the next year.

Issue Area 3: Backlog of Permanent Total Disability Cases Decided by the Workers' Compensation Division Is Beginning to Impact the Caseload of the OOJ

The 1997 report briefly identified a potential crisis looming on the horizon for the OOJ. The potential crisis is a backlog of approximately 4,000 Permanent Total Disability (PTD)cases that had been building up in the Workers' Compensation Division. Last year, the Supreme Court of Appeals of West Virginia recalled Judge James Holliday and situated him in the Circuit Court of Kanawha County to conduct all proceedings pertaining to Workers' Compensation on behalf of the Supreme Court of Appeals. On October 9, 1997, Judge Holliday signed an order requiring the Workers' 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" PTD cases by June 15, 1998.
The OOJ estimates that approximately two thirds of the cases will be appealed to them. If this happens, there will be an additional 2,680 additional PTD protests appealed to the OOJ in a short period of time. PTD protests are more complex than the other types of protests that the OOJ receives and are only assigned to its staff of administrative law judges. The OOJ has already experienced a significant increase in the number of PTD protests received (see Table 6). As can be seen the number of PTD protests appealed to the OOJ has increased 400% since last year and has increased 1,300% since 1996.


1/96 - 12/961129
1/97 - 10/9731031
11/97 - 10/981393116

The increases in the number of PTD protests closely correspond with the due date stated in Judge Holliday's order (see Table 7). Workers' Compensation Division was required to render decisions on approximately 1,500 backlogged "Old Law"PTD cases by February 15, 1998 and approximately 2,500 Ferral "Old Law" PTD cases by June 15, 1998. As can be seen from Table 5, there was significant increase in the number of PTD protests received in the months following the two due dates.

This has also led to an increase in the number of PTD protests that must be assigned to the administrative law judges. There are fifteen administrative law judges on staff at the OOJ assigned to do PTD cases. Presently, the average number of PTD decisions done by an administrative law judge each month is approximately two. This number will increase to approximately thirteen decisions by January 2000. This is almost a 700% increase in the number of PTD decisions that must be written every month by administrative law judges.

Month / Year
Number of PTD Protests ReceivedProjected Decision Month / Year*
November 199747February 1999
December 199756March 1999
January 199846April 1999
February 199857May 1999
March 1998104June 1999
April 1998150July 1999
May 199891August 1999
June 1998119September 1999
July 1998159October 1999
August 1998168November 1999
September 1998204December 1999
October 1998192January 2000
*The time standard for PTD protests is 15 months.

This potential problem is only temporary, but it can have adverse effects on the OOJ in terms of completing work on protests within the time standards. This will more than likely affect the compliance rate to writing final decisions within thirty days. It should be reiterated that PTD protests on average consume more resources of the OOJ because of their complexity. These more omplex decisions naturally take more time to prepare. Only administrative law judges are permitted to work on these protests and write the decisions for them. The OOJ does not allow their paralegal writing teams nor contract attorneys to handle these types of protests.

Recommendation 3:

The Compensation Programs Performance Council shall monitor the progress of the Office of Judges as it works to improve compliance with time standards.

Recommendation 4:

The OOJ should submit a plan to the Compensation Programs Performance Council for handling the increased Permanent Total Disability protests.