SB275 H JUD AM #1
Casto 3264
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
CHAPTER 3. ELECTIONS.
ARTICLE 10. FILLING VACANCIES.
§3‑10‑3. Vacancies in offices of state officials, justices, judges, and magistrates.
(a) Any vacancy occurring in the offices of Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, or in any office created or made elective to be filled by the voters of the entire state, is filled by the Governor of the state by appointment and subsequent election to fill the remainder of the term, if required by §3‑10‑1 of this code. The Governor shall make the appointment from a list of three legally qualified persons submitted by the party executive committee of the same political party with which the person holding the office immediately preceding the vacancy was affiliated at the time the vacancy occurred. The list of qualified persons to fill the vacancy shall be submitted to the Governor within 15 days after the vacancy occurs, and the Governor shall duly make his or her appointment to fill the vacancy from the list of legally qualified persons within five days after the list is received. If the list is not submitted to the Governor within the 15‑day period, the Governor shall appoint, within five days thereafter, a legally qualified person of the same political party with which the person holding the office immediately preceding the vacancy was affiliated at the time the vacancy occurred: Provided, That the provisions of this subsection do not apply to §3‑10‑3(b), §3‑10‑3(c), §3‑10‑3(d), and §3‑10‑3(e) of this code.
(b) Any vacancy occurring in the offices of Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of a circuit court, or judge of a family court is filled by the Governor of the state by appointment and, if the unexpired term be for a period of more than two years, by a subsequent election to fill the remainder of the term, as required by §3‑10‑3(d) of this code. If an election is required under §3‑10‑3(d) of this code, the Governor, circuit court, or the chief judge thereof in vacation, is responsible for the proper proclamation by order and notice required by §3‑10‑1 of this code.
(c) Any vacancy in the office of magistrate is appointed according to the provisions of §50‑1‑6 of this code, and, if the unexpired term be for a period of more than two years, by a subsequent election to fill the remainder of the term, as required by §3‑10‑3(d) of this code.
(d) (1) When the vacancy in the office of Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of the circuit court, judge of a family court, or magistrate occurs after the 84th day before a general election, and the affected term of office ends on December 31 following the succeeding general election two years later, the person appointed to fill the vacancy shall continue in office until the completion of the term.
(2) When the vacancy occurs before the close of the candidate filing period for the primary election, and if the unexpired term be for a period of greater than two years, the vacancy shall be filled by election in the nonpartisan judicial election held concurrently with the primary election and the appointment shall continue until a successor is elected and certified.
(3) When the vacancy occurs after the close of candidate filing for the primary election and not later than 84 days before the general election, and if the unexpired term be for a period of greater than two years, the vacancy shall be filled by election in a nonpartisan judicial election held concurrently with the general election, and the appointment shall continue until a successor is elected and certified.
(e) When an election to fill a vacancy is required to be held at the general election, according to the provisions of §3‑10‑3(d) of this code, a special candidate filing period shall be established. Candidates seeking election to any unexpired term for Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of a circuit court, judge of the family court, or magistrate shall file a certificate of announcement and pay the filing fee no earlier than the first Monday in August and no later than 77 days before the general election.
§3‑10‑3a. Judicial Vacancy Advisory Commission.
(a) The Judicial Vacancy Advisory Commission shall assist the Governor in filling judicial vacancies. The commission shall meet and submit a list of no more than five nor less than two of the most qualified persons to the Governor within 90 days of the occurrence of a vacancy, or the formal announcement of the justice or judge by letter to the Governor of an upcoming resignation or retirement that will result in the occurrence of a vacancy, in the office of Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of a circuit court, or judge of a family court. The Governor shall make the appointment to fill the vacancy, as required by this article, within 30 days following the receipt of the list of qualified candidates or within 30 days following the vacancy, whichever occurs later.
(b) The commission shall consist of eight appointed members appointed by the Governor for six‑year terms, including four public members and four attorney members. The Governor shall appoint attorney members from a list of nominees provided by the Board of Governors of the West Virginia State Bar. The Board of Governors of the West Virginia State Bar shall nominate no more than 20 nor less than 10 of the most qualified attorneys for appointment to the commission whenever there is a vacancy in the membership of the commission reserved for attorney members. The commission shall choose one of its appointed members to serve as chair for a three‑year term. No more than four appointed members of the commission shall belong to the same political party. All members of the commission shall be citizens of this state. Public members of the commission may not be licensed to practice law in West Virginia or any other jurisdiction.
(c) (1) No more than two appointed members of the commission may be residents of the same state senatorial district, as provided in §1‑2‑1 of this code, at the time of appointment: Provided, That the members appointed to, and serving on, the commission prior to the enactment of this subdivision are not disqualified from service for the remainder of the member’s term based on the residency requirements of this subdivision.
(2) No more than three appointed members of the commission may be residents of the same congressional district: Provided, That, if the number of congressional districts in the state is reduced to two, then no more than four appointed members of the commission may be residents of the same congressional district: Provided, however, That the members appointed to, and serving on, the commission prior to the date on which the number of congressional districts in the state is reduced to two are not disqualified from service for the remainder of the member’s term based on the residency requirements of this subdivision.
(d) The Governor, or his or her designee, the President of the West Virginia State Bar, and the Dean of the West Virginia University College of Law shall serve as ex officio members of the commission.
(e) Members of the commission shall serve without compensation, except that commission members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in official commission activities in accordance with the guidelines of the Travel Management Office of the Department of Administration, or its successor entity. The Governor’s Office shall cooperate with the commission to ensure that all resources necessary to carrying out the official duties of the commission are provided, including staff assistance, equipment, and materials.
(f) The commission shall adopt written policies that formalize and standardize all operating procedures and ethical practices of its members, including, but not limited to, procedures for training commission members, publishing notice of judicial vacancies, recruiting qualified individuals for consideration by the commission, receiving applications from qualified individuals, notifying the public of judicial vacancies, notifying state or local groups and organizations of judicial vacancies, and soliciting public comment on judicial vacancies. The written policies of the commission are not subject to the provisions of chapter 29A of this code but shall be filed with the Secretary of State.
(g) A majority of the commission plus one shall constitute a quorum to do business.
(h) All organizational meetings of the commission shall be open to the public and subject to the requirements of §6‑9A‑1 et seq. of this code. An “organizational meeting” means an initial meeting to discuss the commission’s procedures and requirements for a judicial vacancy. The commission shall hold at least one organizational meeting upon the occurrence of a judicial vacancy. All other meetings of the commission are exempt from §6‑9A‑1 et seq. of this code.
(i) The commission shall make available to the public copies of any applications and any letters of recommendation written on behalf of any applicants. All other documents or materials created or received by the commission shall be confidential and exempt from the provisions of chapter 29B of this code, except for the list of the most qualified persons or accompanying memoranda submitted to the Governor in accordance with the provisions of subsection (j) of this section, which shall be available for public inspection, and the written policies required to be filed with the Secretary of State in accordance with subsection (f) of this section.
(j) The commission shall submit its list of the most qualified persons to the Governor in alphabetical order. A memorandum may accompany the list of the most qualified persons and state facts concerning each of the persons listed. The commission shall make copies of any list of the most qualified persons and accompanying memoranda it submits to the Governor available for public inspection.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2D. CERTIFICATE OF NEED.
§16‑2D‑16a. Transfer of appellate jurisdiction to Intermediate Court of Appeals.
(a) Notwithstanding any other provision of this article:
(1) The Office of Judges may not review a decision of the authority, issued after December 31, 2022, in a certificate of need review. On or before March 31, 2023, the Office of Judges shall issue a final decision in, or otherwise dispose of, each and every appeal, pending before the Office of Judges, of a decision by the authority in a certificate of need review.
(2) An appeal of a final decision in a certificate of need review, issued by the authority after December 31, 2022, shall be made to the West Virginia Intermediate Court of Appeals, as provided in §29A‑5‑1 et seq. of this code.
(b) If the Office of Judges does not issue a final decision or otherwise dispose of any appeal of a decision of the authority in a certificate of need review on or before March 31, 2023, the appeal shall be transferred to the Intermediate Court of Appeals. For any appeal transferred pursuant to this subsection, the Intermediate Court of Appeals shall adopt any existing records of evidence and proceedings in the Office of Judges, conduct further proceedings as it considers necessary, and issue a final decision or otherwise dispose of the case as provided in §29A‑5‑1 et seq. of this code.
CHAPTER 23. WORKERS’ COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23‑1‑1h. Powers and duties of Office of Judges transferred to Board of Review; definition of certain terms effective January 1, 2023.
(a) Notwithstanding any other provision of this code, with regard to an objection, protest, or any other decision issued after December 31, 2022, all powers and duties of the Workers’ Compensation Office of Administrative Law Judges, as provided in this chapter, shall be transferred to the Workers’ Compensation Board of Review.
(b) Notwithstanding any other provision of this code, the West Virginia Intermediate Court of Appeals has exclusive appellate jurisdiction over the following matters:
(1) Decisions or orders issued by the Office of Judges after December 31, 2022 and prior to its termination; and
(2) Decisions of the Workers’ Compensation Board of Review, issued after December 31, 2022, as provided in §23‑5‑8a and §51‑11‑1 et seq. of this code.
(c) Unless the context clearly indicates a different meaning, effective January 1, 2023, the following terms shall have the following meanings for the purposes of this chapter, except when used in §23‑5‑1 et seq. of this code:
(1) “Administrative law judge” means a member of the Workers’ Compensation Board of Review, or a hearing examiner designated by the board of review as authorized in §23‑5‑1 et seq. of this code;
(2) “Office of judges” means the “Workers’ Compensation Board of Review”; and
(3) “Workers’ Compensation Board of Review” or “board of review” when used in reference to an appeal of a board of review decision, means the West Virginia Intermediate Court of Appeals, created by §51‑11‑1 et seq. of this code.
ARTICLE 5. REVIEW.
§23‑5‑1. Notice by commission or self‑insured employer of decision; procedures on claims; objections and hearing.
(a) The Insurance Commissioner, private carriers, and self‑insured
employers may determine all questions within their jurisdiction. In matters
arising under §23‑2C‑8(c), and under §23‑3‑1 et seq.
and §23‑4‑1 et seq. of this code, the Insurance
Commissioner, private carriers, and self‑insured employers, whichever
is applicable, shall promptly review and investigate all claims. The
parties to a claim are the claimant and, if applicable, the claimant’s dependants
dependents, and the employer, and, with respect to claims
involving funds created in §23‑2C‑1 et seq. of this code for
which he or she has been designated the administrator, the Insurance
Commissioner. In claims in which the employer had coverage on the date of the
injury or last exposure, the employer’s carrier has sole authority to act on
the employer’s behalf in all aspects related to litigation of the claim. With
regard to any issue which is ready for a decision, the Insurance Commissioner,
private carrier, or self‑insured employer, whichever is applicable, shall
promptly send the decision to all parties, including the basis of its decision.
As soon as practicable after receipt of any occupational pneumoconiosis or
occupational disease claim or any injury claim in which temporary total
benefits are being claimed, the Insurance Commissioner, private carrier, or
self‑insured employer, whichever is applicable, shall send the claimant a
brochure approved by the Insurance Commissioner setting forth the claims
process.
(b) (1) Except with regard to interlocutory matters, upon
making any decision, upon making or refusing to make any award, or upon making
any modification or change with respect to former findings or orders, as
provided by §23‑4‑16 of this code, the Insurance Commissioner,
private carrier, or self‑insured employer, whichever is applicable, shall
give notice, in writing, to the parties to the claim of its action. The notice
shall state the time allowed for filing a protest an objection to
the finding. The action of the Insurance Commissioner, private carrier, or self‑insured
employer, whichever is applicable, is final unless an objection to the
decision is protested properly filed within 60 days after the
receipt of such decision unless a protest is filed within the 60 day period,
the finding or action is final. This time limitation is a condition of the
right to litigate the finding or action and hence jurisdictional. Any
protest Any objection shall be filed with the Office of Judges
Workers’ Compensation Board of Review, as provided in §23‑5‑8
and §23‑5‑8a of this code, with a copy served upon the parties
to the claim, and other parties in accordance with the procedures set forth in
§23‑5‑8 and §23‑5‑9 of this code. An employer may protest
file an objection to a decisions decision incorporating
findings made by the Occupational Pneumoconiosis Board, decisions made by the
Insurance Commissioner acting as administrator of claims involving funds
created in §23‑2C‑1 et seq. of this code, or decisions
entered pursuant to §23‑4‑7a(c)(1) of this code.
(2) (A) With respect to every application for benefits filed
on or after July 1, 2008, in which an objection to a decision to
deny benefits is protested filed and the matter involves an issue
as to whether the application was properly filed as a new claim or a reopening
of a previous claim, the party that denied the application shall begin to make
conditional payment of benefits and must promptly give notice to the Office
of Judges Workers’ Compensation Board of Review that another
identifiable person may be liable. The Office of Judges Workers’
Compensation Board of Review shall promptly order the appropriate persons
be joined as parties to the proceeding: Provided, That at any time
during a proceeding in which conditional payments are being made in accordance
with the provisions of this subsection, the Office of Judges Workers’
Compensation Board of Review may, pending final determination of the person
properly liable for payment of the claim, order that such conditional payments
of benefits be paid by another party.
(B) Any conditional payment made pursuant to paragraph (A)
of this subdivision shall not be deemed an admission or conclusive finding of
liability of the person making such payments. When the administrative law
judge Workers’ Compensation Board of Review has made a determination
as to the party properly liable for payment of the claim, he or she the
Board of Review shall direct any monetary adjustment or reimbursement
between or among the Insurance Commissioner, private carriers, and self‑insured
employers as is necessary.
(c) The Office of Judges The member of the
Workers’ Compensation Board of Review assigned to an objection, as provided in
§23‑5‑9(b) of this code, may direct that:
(1) An application for benefits be designated as a petition to reopen, effective as of the original date of filing;
(2) A petition to reopen be designated as an application for benefits, effective as of the original date of filing; or
(3) An application for benefits or petition to reopen filed with the Insurance Commissioner, private carrier, or self‑insured employer be designated as an application or petition to reopen filed with another private carrier, self‑insured employer, or Insurance Commissioner, effective as of the original date of filing.
(d) Where an employer protests files an objection to
a written decision entered pursuant to a finding of the Occupational
Pneumoconiosis Board, a decision on a claim made by the Insurance Commissioner
acting as the administrator of a fund created in §23‑2C‑1 et seq.
of this code, or decisions entered pursuant to §23‑4‑7a(c)(1) of
this code, and the employer does not prevail in its protest objection,
and in the event the claimant is required to attend a hearing by subpoena, or
agreement of counsel, or at the express direction of the Office of Judges
Workers’ Compensation Board of Review, then the claimant, in addition to
reasonable traveling and other expenses, shall be reimbursed for loss of wages
incurred by the claimant in attending the hearing.
(e) The Insurance Commissioner, private carrier, or self‑insured
employer, whichever is applicable, may amend, correct, or set aside any order
or decision on any issue entered by it which, at the time of issuance or any
time after that, is discovered to be defective, or clearly erroneous, or the
result of mistake, clerical error, or fraud, or with respect to any order or
decision denying benefits, otherwise not supported by the evidence: but Provided,
That any protest objection filed prior to entry of the
amended decision is a protest from an objection to the amended
decision unless and until the administrative law judge before whom the
matter is pending Workers’ Compensation Board of Review enters an
order dismissing the protest objection as moot in light of the
amendment. Jurisdiction to issue an amended decision pursuant to this
subsection continues until the expiration of two years from the date of a
decision to which the amendment is made unless the decision is sooner affected
by an action of an administrative law judge the Workers’ Compensation
Board of Review or other a judicial officer or body: Provided,
however, That corrective actions in the case of fraud may be taken at any
time.
(f) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023.
§23‑5‑3. Refusal to reopen claim; notice; objection.
(a) If it appears to the Insurance Commissioner,
private insurance carriers, and self‑insured employers, whichever is
applicable, that an application filed under §23‑5‑2 of this code
fails to disclose a progression or aggravation in the claimant’s condition, or
some other fact or facts which were not previously considered in its former
findings, and which would entitle the claimant to greater benefits than the
claimant has already received, the Insurance Commissioner, private insurance
carriers, and self‑insured employers, whichever is applicable, shall,
within a reasonable time, notify the claimant and the employer that the
application fails to establish a prima facie cause for reopening the claim. The
notice shall be in writing stating the reasons for denial and the time allowed
for objection to the decision of the commission. The claimant may, within 60
days after receipt of the notice, object in writing to the finding. Unless the
objection is filed within the 60‑day period, no objection shall be
allowed. This time limitation is a condition of the right to objection and
hence jurisdictional. Upon receipt of an objection, the Office of Judges
Workers’ Compensation Board of Review shall afford the claimant an
evidentiary hearing as provided in §23‑5‑9 of this code.
(b) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023.
§23‑5‑5. Refusal of modification; notice; objection.
(a) If in any case it appears to the commission,
the successor to the commission Insurance Commissioner, other
private insurance carriers, and self‑insured employers, whichever is
applicable, that the application filed pursuant to §23‑5‑4 of this
code fails to disclose some fact or facts which were not previously considered by
the commission in its former findings, and which would entitle the
employer to any modification of the previous award, the commission, the
successor to the commission Insurance Commissioner, other private
insurance carriers, and self‑insured employers, whichever is applicable,
shall, within 60 days from the receipt of the application, notify the claimant
and employer that the application fails to establish a just cause for
modification of the award. The notice shall be in writing stating the reasons
for denial and the time allowed for objection to the decision of the commission,
the successor to the commission Insurance Commissioner, other
private insurance carriers, and self‑insured employers, whichever is
applicable. The employer may, within 30 days after receipt of the notice,
object in writing to the decision. Unless the objection is filed within the 30‑day
period, no objection shall be allowed. This time limitation is a condition of
the right to objection and hence jurisdictional. Upon receipt of the objection,
the Office of Judges Workers’ Compensation Board of Review shall
afford the employer an evidentiary hearing as provided in §23‑5‑9
of this code.
(b) The amendments to this section made during the 2020 regular session of the Legislature shall become effective on January 1, 2023.
§23‑5‑6. Time periods for objections and appeals; extensions.
(a) Notwithstanding the fact that the time periods
set forth for objections, protests, and appeals to or from the Office of
Judges Workers’ Compensation Board of Review are jurisdictional, the
periods may be extended or excused upon application of either party within a
period of time equal to the applicable period by requesting an extension of the
time period showing good cause or excusable neglect, accompanied by the
objection or appeal petition. In exercising discretion, the administrative
law judge, appeal board Workers’ Compensation Board of Review or
court, as the case may be, shall consider whether the applicant was represented
by counsel and whether timely and proper notice was actually received by the
applicant or the applicant’s representative.
(b) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023.
§23‑5‑8. Designation of Transfer
of powers and duties of the Office of Administrative Law Judges to the
Workers’ Compensation Board of Review; powers of chief administrative
law judge the Workers’ Compensation Board of Review in relation to
review of objections.
(a) The Workers’ Compensation Office of Administrative
Law Judges previously created pursuant to chapter twelve, acts of the
Legislature, 1990, second extraordinary session, is hereby continued and
designated to be an integral part of the workers’ compensation system of this
state. The Office of Judges shall be under the supervision of a
chief administrative law judge who shall be appointed by the Governor with the
advice and consent of the Senate.
(a) The Workers’ Compensation Office of Administrative Law Judges, referred to as the Office of Judges, shall terminate on or before April 1, 2023 as provided in §23‑5‑8a of this code. All powers and duties of the Office of Judges to review objections, protests, or any other matter authorized by this chapter, shall be transferred to the Workers’ Compensation Board of Review on January 1, 2023: Provided, That any objection or other matter filed pursuant to this chapter and pending before the Office of Judges upon its termination, in which a final decision has not been issued, shall also be transferred to the Workers’ Compensation Board of Review as provided in §23‑5‑8a of this code.
(b) The chief administrative law judge shall be a
person who has been admitted to the practice of law in this state and shall
also have had at least four years of experience as an attorney. The chief
administrative law judge’s salary shall be set by the workers’ compensation
board of managers. The salary shall be within the salary range for comparable
chief administrative law judges as determined by the state Personnel Board
created by section six, article six, chapter twenty‑nine of this code.
The chief administrative law judge may only be removed by a vote of two‑thirds
of the members of the Workers’ Compensation Board of managers. Upon transfer of
the office of judges to the Insurance Commissioner, the chief administrative
law judge shall continue to serve as chief administrative law judge until
December 31, 2007. Thereafter, appointments of the chief administrative law
judge shall be for terms of four years beginning January 1, 2008, and the chief
administrative law judge may be removed only for cause by the vote of four
members of the Industrial Council. No other provision of this code purporting
to limit the term of office of any appointed official or employee or affecting
the removal of any appointed official or employee is applicable to the chief
administrative law judge.
(c) (b) The chief administrative law
judge Pursuant to §23‑5‑11(n) of this code, the Workers’
Compensation Board of Review shall employ administrative law judges hearing
examiners and other personnel that are necessary for the proper conduct of
a system of administrative review of orders issued by the Workers’
Compensation Commission which orders have been objected to by a party objections
to decisions of the Insurance Commissioner, private carriers, and self‑insured
employers, whichever is applicable, made pursuant to the provisions of §23‑5‑1
of this code and issued after December 31, 2022. The employees shall be
in the classified service of the state. Qualifications, compensation and
personnel practice relating to the employees of the office of judges other than
the chief administrative law judge shall be governed by the provisions of this
code and rules of the classified service pursuant to §29‑6‑1 et
seq. of
this code. All additional administrative law judges All hearing
examiners hired by the Workers’ Compensation Board of Review shall be
persons who have been admitted to the practice of law in this state and shall
also have had at least two four years of experience as an
attorney. The chief administrative law judge chair of the Workers’
Compensation Board of Review shall supervise the other administrative
law judges hearing examiners and other personnel of the board,
which collectively shall be referred to in this chapter as the office of
judges Workers’ Compensation Board of Review.
(d) The administrative expense of the office of judges
shall be included within the annual budget of the Workers’ Compensation
Commission and, upon termination of the commission, the Insurance Commissioner.
(e) The office of judges
shall, from time to time, promulgate rules of practice and procedure for the
hearing and determination of all objections to findings or orders of the office
of judges. The office of judges shall not have the power to initiate or to
promulgate legislative rules as that phrase is defined in §29A‑3‑1 et seq. of this
code. Any
rules adopted pursuant to this section which are applicable to the provisions
of this article are not subject to sections nine through sixteen, inclusive,
article three, chapter twenty‑nine‑a of this code. The office of judges shall
follow the remaining provisions of chapter 29A of this code for giving notice
to the public of its actions and the holding of hearings or receiving of
comments on the rules.
(f) (c) The chief administrative law
judge Workers’ Compensation Board of Review has the power to hear
and determine all disputed claims objections in accordance with
the provisions of this article, establish a procedure for the hearing of disputed
claims objections, take oaths, examine witnesses, issue subpoenas,
establish the amount of witness fees, keep records, and make reports that are
necessary for disputed claims reviewing objections, and exercise
any additional powers, including the delegation of powers to administrative
law judges or hearing examiners that are necessary for the proper conduct
of a system of administrative review of disputed claims objections.
The chair of the Workers’ Compensation Board of Review shall make
reports that are requested of him or her by the workers’ compensation board
of managers Insurance Commissioner.
(g) (d) Effective upon termination of the commission
Office of Judges, the office of judges and the board of review shall
be transferred to the Insurance Commissioner, which shall have the oversight
and administrative authority heretofore provided to the executive director and
the board of managers the Insurance Commissioner shall have oversight
and administrative authority over the Workers’ Compensation Board of Review as
heretofore provided to the Insurance Commissioner over the Office of
Judges.
(e) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023.
§23‑5‑8a. Transfer of jurisdiction to review objections to Workers’ Compensation Board of Review; termination of Office of Judges; appeals of board decisions to Intermediate Court of Appeals.
(a) The Office of Judges has no jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self‑insured employer, whichever is applicable, made pursuant to the provisions of this chapter and issued after December 31, 2022. The Workers’ Compensation Board of Review has exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self‑insured employer, whichever is applicable, made pursuant to the provisions of this chapter and issued after December 31, 2022.
(b) On or before March 31, 2023, the Office of Judges shall issue a final decision in, or otherwise dispose of, each and every objection or other matter pending before the Office of Judges according to the procedure and requirements for such appeals heretofore provided in this article. If the Office of Judges does not issue a final decision or otherwise dispose of any objection or other matter pending before the Office of Judges on or before March 31, 2023, the objection or other matter shall be transferred to the Workers’ Compensation Board of Review. For any objections transferred from the Office of Judges to the Workers’ Compensation Board of Review, the board of review shall adopt any existing records of proceedings in the Office of Judges, conduct further proceedings and collect evidence as it determines to be necessary, and issue a final decision or otherwise dispose of the case according to the procedural rules promulgated pursuant to §23‑5‑11(m) of this code.
(c) Upon the Office of Judges’ disposition of every matter pending before the office, or on April 1, 2023, whichever occurs earlier, the Office of Judges is terminated.
(d) The West Virginia Intermediate Court of Appeals, created in §51‑11‑1 et seq. of this code, has exclusive appellate jurisdiction over the following:
(1) Decisions or orders issued by the Office of Judges after December 31, 2022 and prior to its termination; and
(2) All final orders or decisions issued by the Workers’ Compensation Board of Review after December 31, 2022.
§23‑5‑9. Hearings on objections to Insurance Commissioner; private carrier or self‑insured employer decisions; mediation; remand.
(a) Objections to a decision of the Insurance
Commissioner, private carrier, or self‑insured employer, whichever is
applicable, made pursuant to the provisions of §23‑5‑1 of this
code, shall be filed with the office of judges Workers’ Compensation
Board of Review. Upon receipt of an objection, the office of judges Workers’
Compensation Board of Review shall notify the Insurance Commissioner, private
carrier, or self‑insured employer, whichever is applicable, and all other
parties of the filing of the objection. The office of judges Workers’
Compensation Board of Review shall establish by rule, promulgated in
accordance with the provisions of §23‑5‑8(e) §23‑5‑11(m)
of this code, an adjudicatory process that enables parties to present evidence
in support of their positions and provides an expeditious resolution of the
objection. The employer, the claimant, the Insurance Commissioner, the
private carrier, or the self‑insured employer, whichever are
is applicable, shall be notified of any hearing at least 10 days in
advance. The office of judges shall review and amend, or modify, as
necessary, its procedural rules by July 1, 2007.
(b) The chair of the Workers’ Compensation Board of Review shall assign, on a rotating basis, a member of the board of review to preside over the review process and issue a decision in each objection that is properly filed with the board of review. The member of the Workers’ Compensation Board of Review assigned to an objection shall review evidence, conduct proceedings, and develop a record as is necessary for a full and thorough review of the objection: Provided, That the board member may delegate such duties to a hearing examiner employed by the board of review, pursuant to §23‑5‑8 and §23‑5‑11(n) of this code: Provided, however, That any order or decision of the board of review must be issued and signed by the member of the Board assigned to the objection, as provided in subsection (e) of this section: Provided further, That a time frame order, continuance order, show cause order, failure to prosecute order, or other interlocutory order as permitted by the Workers’ Compensation Board of Review’s procedural rules may be issued and signed by a hearing examiner only, and is not subject to the general requirement that orders be issued and signed by a member of the board.
(b) (c) The office of judges Workers’
Compensation Board of Review shall establish a program for mediation to be
conducted in accordance with the requirements of Rule 25 of the West Virginia
Trial Court Rules. The parties may agree that the result of the mediation is
binding. A case may be referred to mediation by the administrative law judge
the board of review member assigned to the objection on his or her own
motion, on motion of a party, or by agreement of the parties. Upon issuance of
an order for mediation, the office of judges Workers’ Compensation
Board of Review shall assign a mediator from a list of qualified mediators
maintained by the West Virginia State Bar.
(c) (d) The office of judges Workers’
Compensation Board of Review shall keep full and complete records of all
proceedings concerning a disputed claim an objection. Subject to
the rules of practice and procedure promulgated pursuant to §23‑5‑8(e)
§23‑5‑11(m) of this code, the record upon which the matter
shall be decided shall include any evidence submitted by a party to the office
of judges Workers’ Compensation Board of Review and evidence taken
at hearings conducted by the office of judges board of review.
The record may include evidence or documents submitted in electronic form or
other appropriate medium in accordance with the rules of practice and
procedure. The office of judges Workers’ Compensation Board of Review
is not bound by the usual common law or statutory rules of evidence.
(d) (e) All hearings shall be conducted as
determined by the chief administrative law judge Workers’
Compensation Board of Review pursuant according to the rules
of practice and procedure promulgated pursuant to section eight of this
article §23‑5‑11(m) of this code. If a hearing examiner
reviews an objection, the hearing examiner shall, at the conclusion of the
review process, submit the designated record to the member of the Workers’
Compensation Board of Review to whom the objection is assigned, along with the
hearing examiner’s recommendation of a decision affirming, reversing, or
modifying the action that was subject to the objection. Upon consideration
of the designated record and, if applicable, the recommendation of the
hearing examiner, the chief administrative law judge or other authorized
adjudicator within the office of judges member of the Workers’
Compensation Board of Review assigned to the objection shall, based on the
determination of the facts of the case and applicable law, render a decision
affirming, reversing, or modifying the action protested that was
subject to the objection. The decision shall contain findings of fact and
conclusions of law, shall be signed by the member of the Workers’
Compensation Board of Review rendering the decision, and shall be mailed to
all parties.
(e) (f) The office of judges Workers’
Compensation Board of Review may remand a claim to the Insurance
Commissioner, private carrier, or self‑insured employer, whichever is
applicable, for further development of the facts or administrative matters as,
in the opinion of the administrative law judge member of the board of
review assigned to the objection, may be necessary for a full and complete
disposition of the case. The administrative law judge member of the
Workers’ Compensation Board of Review assigned to the objection shall
establish a time within which the Insurance Commissioner, private carrier, or
self‑insured employer, whichever is applicable, must report back to the administrative
law judge board of review.
(f) (g) The decision of the office of
judges Workers’ Compensation Board of Review regarding any objections
to a decision of the Insurance Commissioner, private carrier, or self‑insured
employer, whichever is applicable, is final, and benefits shall be paid or
denied in accordance with the decision, unless an order staying the payment of
benefits is specifically entered by the Workers’ Compensation Board of
Review, created in §23‑5‑11 of this code a court with
appellate jurisdiction over the decision or by the administrative law
judge member of the board of review who granted the benefits. No
A stay with respect to any medical treatment or rehabilitation
authorized by the office of judges Workers’ Compensation Board of
Review may not be granted. If the decision is subsequently appealed
and reversed in accordance with the procedures set forth in this article, and
any overpayment of benefits occurs as a result of such the
reversal, any such the overpayment may be recovered pursuant to
the provisions of §23‑4‑1c(h) or §23‑4‑1d(d) of this
code, as applicable.
§23‑5‑10. Appeal from administrative law judge a
Workers’ Compensation Board of Review decision to appeal board the
Intermediate Court of Appeals.
(a) The employer, claimant, Workers’
Compensation Commission, the successor to the commission Insurance
Commissioner, other private insurance carriers, and self‑insured
employers, whichever is applicable, may appeal to the appeal board created
in §23‑5‑11 of this code West Virginia Intermediate Court of
Appeals, created by §51‑11‑1 et seq. of
this code, for a review of a decision by an administrative law judge
the Workers’ Compensation Board of Review. No appeal or review shall
lie unless application therefor be is made within 30 days of
receipt of notice of the administrative law judge’s Workers’ Compensation
Board of Review’s final action or in any event within 60 days of the date
of such final action, regardless of notice and, unless the application for
appeal or review is filed within the time specified, no such appeal or review
shall be allowed, such time limitation being hereby declared to be a condition
of the right of such appeal or review and hence jurisdictional.
(b) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023.
§23‑5‑11. Workers’ Compensation Board of Review generally; administrative powers and duties of the board.
(a) On January 31, 2004, the Workers’ Compensation
Appeal Board heretofore established in this section is hereby abolished.
(b) (a) There is created the The
Workers’ Compensation Board of Review, which may also be referred to as the
“board of review” or the “board”, is continued and granted Effective
February 1, 2004, the board of Review shall exercise exclusive jurisdiction
over all appeals from the Workers’ Compensation Office of Judges objections
to decisions of the Insurance Commissioner, private carriers, and self‑insured
employers, whichever is applicable, including any and all appeals matters
pending with the board of Appeals on January 31, 2004 before the
Office of Judges after March 31, 2023.
(c) (b) The board of review consists
of three members.
(d) (c) The Governor shall appoint, from
names submitted by the Workers’ Compensation Board of Review Nominating
Committee, with the advice and consent of the Senate, three qualified attorneys
to serve as members of the board of review. If the Governor does not select a
nominee for any vacant position from the names provided by the nominating
committee, he or she shall notify the nominating committee of that
circumstance, and the committee shall provide additional names for
consideration by the Governor. A member of the board of review may be removed
by the Governor for official misconduct, incompetence, neglect of duty, gross immorality,
or malfeasance and then, only after notice and opportunity to respond and
present evidence. No more than two of the members of the board may be of the
same political party. The members of the board of Review shall be paid an
annual salary of $85,000: Provided, That on and after July 1, 2008 the
Governor shall set the salary of the members of the board: Provided, however,
That the annual salary of a member of the board of review shall not exceed $110,000
$125,000. Members are entitled to be reimbursed for actual and necessary
travel expenses incurred in the discharge of official duties in a manner
consistent with the guidelines of the Travel Management Office of the
Department of Administration.
(e) (d) The nominating committee consists of
the following members: (1) The President of the West Virginia State Bar who
serves as the chairperson of the committee; (2) an active member of the West
Virginia State Bar Workers’ Compensation Committee, selected by the major trade
association representing employers in this state; (3) an active member of the
West Virginia State Bar Workers’ Compensation Committee, selected by the
highest‑ranking officer of the major employee organization representing
workers in this state; (4) the Dean of the West Virginia University School of
Law; and (5) the Chairman of the Judicial Investigation Committee.
(f) (e) The nominating committee is
responsible for reviewing and evaluating candidates for possible appointment to
the board of review by the Governor. In reviewing candidates, the nominating
committee may accept comments from, and request information from, any person or
source.
(g) (f) Each member of the nominating
committee may submit up to three names of qualified candidates for each
position on the board of review: Provided, That the member of the
nominating committee selected by the major trade organization representing
employers of this state shall submit at least one name of a qualified candidate
for each position on the board who either is, or who represents, small business
employers of this state. After careful review of the candidates, the committee
shall select a minimum of one candidate for each position on the board.
(h) (g) Of the initial appointments, one
member shall be appointed for a term ending December 31, 2006; one member shall
be appointed for a term ending December 31, 2008; and one member shall be
appointed for a term ending December 31, 2010. Thereafter, the appointments
shall be for six‑year terms.
(i) (h) A member of the board of review
must, at the time he or she takes office and thereafter during his or her
continuance in office, be a resident of this state, be a member in good
standing of the West Virginia State Bar, have a minimum of 10 years’ experience
as an attorney admitted to practice law in this state prior to appointment, and
have a minimum of five years’ experience in preparing and presenting cases or
hearing actions and making decisions on the basis of the record of those
hearings before administrative agencies, regulatory bodies, or courts of record
at the federal, state, or local level.
(j) (i) No member of the board of review may
hold any other office, or accept any appointment or public trust, nor may he or
she become a candidate for any elective public office or nomination thereto.
Violation of this subsection requires the member to vacate his or her office.
No member of the Board of Review may engage in the practice of law during his
or her term of office.
(k) (j) A vacancy occurring on the board
other than by expiration of a term shall be filled in the manner original
appointments were made, for the unexpired portion of the term.
(l) (k) The board shall designate one of its
members in rotation to be chair of the board for as long as the board may
determine by order made and entered of record. In the absence of the chair, any
other member designated by the members present shall act as chair.
(m) (l) The board of review shall meet as
often as necessary to hold review hearings conduct the board’s
administrative business and make rules of practice and procedure, at such
times and places as the chair may determine. Two members shall be present in
order to conduct review hearings or other administrative business
and make rules of practice and procedure. All decisions of the board upon
administrative matters, pursuant to this section, shall be determined by a
majority of the members of the board.
(n) (m) The board of review shall, make
general rules regarding the pleading, including the form of the petition and
any responsive pleadings, practice and procedure to be used by the board promulgate
rules of practice and procedure for the review and determination of all
objections filed with the board. The board does not have the power to initiate
or to promulgate legislative rules as that phrase is defined in §29A‑3‑1
et seq. of this code. Any rules adopted
pursuant to this section which are applicable to the provisions of this article
are not subject to §29A‑3‑9 through §29A‑3‑16,
inclusive, of this code. The
board shall follow the remaining provisions of chapter 29A of this code for
giving notice to the public of its actions and the holding of hearings or
receiving of comments on the rules.
(o) (n) The board of review may hire a
clerk, hearing examiners, and other professional and clerical staff
necessary to carry out the requirements of this article. It is the duty of the
clerk of the Board of Review to attend in person, or by deputy, all the
sessions of the board, to obey its orders and directions, to take care of and
preserve in an office, kept for the purpose, all records and papers of the
board and to perform other duties as prescribed by law or required of him or
her by the board. All employees of the board serve at the will and pleasure of
the board. The board’s employees are exempt from the salary schedule or pay
plan adopted by the Division of Personnel: Provided, That for the purpose of
any applicable Division of Personnel Class Specifications, hearing examiners
must be within a class with “attorney” in the class title. All personnel of
the board of review are under the supervision of the chair of the board of
review.
(o) The administrative expenses of the board of review shall be included within the annual budget of the Insurance Commissioner, and the Insurance Commissioner shall have administrative authority and oversight over the board of review.
(p) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023: Provided, That the Board is authorized to promulgate rules and hire staff, pursuant to subsection (m) and (n) of this section, respectively, prior to January 1, 2023, to the extent necessary to comply with the requirements of this article that become effective on that date.
(p) If considered necessary by the board, the board
may, through staffing or other resources, procure assistance in review of
medical portions of decisions.
(q) Upon the conclusion of any hearing, or prior
thereto with concurrence of the parties, the board shall promptly determine the
matter and make an award in accordance with its determination.
(r) The award shall become a part of the commission
file. A copy of the award shall be sent forthwith by mail to all parties in
interest.
(s) The award is final when entered. The award shall
contain a statement explaining the rights of the parties to an appeal to the
board of Review and the applicable time limitations involved.
(t) The board shall submit to the Insurance
Commissioner a budget sufficient to adequately provide for the administrative
and other operating expenses of the board.
(u) The board shall report monthly to the Industrial
Council on the status of all claims on appeal.
(v) Effective upon termination of the commission, the
board of Review shall be transferred to The Insurance Commissioner which shall
have the oversight and administrative authority heretofore provided to the
executive director and the board of managers.
§23‑5‑12. Appeal to of board decisions
to the Intermediate Court of Appeals; procedure; remand and supplemental
hearing.
(a) Any employer, employee, claimant, or dependent who
shall feel aggrieved at any final action of the administrative law judge
taken after a hearing held in accordance with the provisions of section nine of
this article by a decision of the Workers’ Compensation Board of Review
shall have the right to appeal to the board created in §23‑5‑11
of this code the West Virginia Intermediate Court of Appeals, created by
§51‑11‑1 et seq. of this code, for a review of such
action. The Workers’ Compensation Commission, the successor to the
commission Insurance Commissioner, other private insurance carriers,
and self‑insured employers, whichever is applicable, shall likewise have
the right to appeal to the board Intermediate Court of Appeals
any final action taken by the administrative law judge Workers’
Compensation Board of Review. The aggrieved party shall file a written
notice of appeal with the board of review Intermediate Court of
Appeals, with a copy to the office of judges Workers’
Compensation Board of Review, within 30 days after receipt of notice of the
action complained of or, in any event, regardless of notice, within 60 days
after the date of the action complained of: and Provided, That
unless the notice of appeal is filed within the time specified, no appeal shall
be allowed: Provided, however, That the time limitation is
a condition of the right to appeal and hence jurisdictional. The board shall
notify the other parties immediately upon the filing of a notice of appeal. The
notice of appeal shall state the ground grounds for review and
whether oral argument is requested. The office of judges Workers’
Compensation Board of Review, after receiving a copy of the notice of
appeal, shall forthwith make up a transcript of the any
proceedings before the office of judges board of review and
certify and transmit it to the board Intermediate Court of Appeals.
The certificate shall incorporate a brief recital of the proceedings in the case
matter and recite each order entered or decision issued and the
date thereof.
(b) The board Intermediate Court of Appeals
shall set a time and place for the hearing of arguments on each claim and shall
notify the interested parties thereof. The review by the board court
shall be based upon the record submitted to it and such oral argument as may be
requested and received. The board Intermediate Court of Appeals
may affirm, reverse, modify, or supplement the decision of the administrative
law judge Workers’ Compensation Board of Review and make such
disposition of the case as it determines to be appropriate. Briefs may be filed
by the interested parties in accordance with the rules of procedure prescribed
by the board court. The board Intermediate Court of
Appeals may affirm the order or decision of the administrative law judge
Workers’ Compensation Board of Review or remand the case for
further proceedings. It shall reverse, vacate, or modify the order or decision
of the administrative law judge Workers’ Compensation Board of
Review, if the substantial rights of the petitioner or petitioners have
been prejudiced because the administrative law judge’s board
of review’s findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction
of the administrative law judge board of review; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(c) After a review of the case, the board Intermediate
Court of Appeals shall issue a written decision and send a copy by mail to
the parties.
(1) All decisions, findings of fact, and conclusions of
law of the board of review Intermediate Court of Appeals shall be
in writing and state with specificity the laws and facts relied upon to
sustain, reverse, or modify the administrative law judge’s board of
review’s decision.
(2) Decisions of the board of review shall be made by a
majority vote of the board of review.
(3) (2) A decision of the board of review
Intermediate Court of Appeals is binding upon the executive
director and the commission and the successor to the commission, other private
insurance carriers, and self‑insured employers, whichever is applicable,
with respect to the parties involved in the particular appeal. The executive
director, the successor to the commission Insurance Commissioner,
other private insurance carriers, and self‑insured employers, employee,
employees, claimant, or dependents, whichever is applicable, shall have the
right to seek judicial review of a board of review decision final
decision of the Intermediate Court of Appeals, pursuant to §51‑11‑13
of this code. irrespective of whether or not he or she appeared or
participated in the appeal to the board of review.
(d) Instead of affirming, reversing, or modifying the
decision of the administrative law judge Workers’ Compensation Board
of Review, the board Intermediate Court of Appeals may, upon
motion of any party or upon its own motion, for good cause shown, to be set
forth in the order of the board court, remand the case to the chief
administrative law judge board of review for the taking of such new,
additional, or further evidence as in the opinion of the board court
may be court considers necessary for a full and complete
development of the facts of the case. In the event the board Intermediate
Court of Appeals shall remand the case to the chief administrative law
judge Board of Review for the taking of further evidence, the administrative
law judge Board of Review shall proceed to take new, additional, or
further evidence in accordance with any instruction given by the board court
within 30 days after receipt of the order remanding the case. The chief
administrative law judge Workers’ Compensation Board of Review
shall give to the interested parties at least 10 days’ written notice of the
supplemental hearing, unless the taking of evidence is postponed by agreement
of parties, or by the administrative law judge board of review
for good cause. After the completion of a supplemental hearing, the administrative
law judge Workers’ Compensation Board of Review shall, within
60 days, render his or her its decision affirming, reversing, or
modifying the former action of the administrative law judge Workers’
Compensation Board of Review. The decision shall be appealable to,
and proceeded with, by the board of review Intermediate Court of
Appeals in the same manner as other appeals. In addition, upon a finding of
good cause, the board court may remand the case to the Workers’
Compensation Commission, the successor to the commission Insurance
Commissioner, other private insurance carriers, and or self‑insured
employers, whichever is applicable, for further development. Any decision made
by the commission, the successor to the commission Insurance
Commissioner, other private insurance carriers, and or self‑insured
employers, whichever is applicable, following a remand, shall be subject to
objection to the office of judges Workers’ Compensation Board
of Review and not to the board Intermediate Court of Appeals.
The board Intermediate Court of Appeals may remand any case as
often as, in its opinion, is necessary for a full development and just decision
of the case.
(e) All appeals from the action of the administrative
law judge shall be decided by the board at the same session at which they are
heard, unless good cause for delay thereof be shown and entered of record.
(f) (e) In all proceedings before the board
Intermediate Court of Appeals, any party may be represented by counsel.
(f) The amendments to this section made during the 2020 Regular Session of the Legislature become effective on January 1, 2023.
§23‑5‑13. Continuances and supplemental hearings; claims not to be denied on technicalities.
(a) It is the policy of this chapter that the
rights of claimants for workers’ compensation be determined as speedily and
expeditiously as possible to the end that those incapacitated by injuries and
the dependents of deceased workers may receive benefits as quickly as possible
in view of the severe economic hardships which immediately befall the families
of injured or deceased workers. Therefore, the criteria for continuances and
supplemental hearings “for good cause shown” are to be strictly construed by
the chief administrative law judge and his or her Workers’
Compensation Board of Review and its authorized representatives to prevent
delay when granting or denying continuances and supplemental hearings. It is
also the policy of this chapter to prohibit the denial of just claims of
injured or deceased workers or their dependents on technicalities.
(b) The amendments to this section made during the 2020 Regular Session of the Legislature become effective on January 1, 2023.
§23‑5‑15. Appeals from final decisions of board to Supreme Court of Appeals prior to January 1, 2023; procedure; costs.
(a) As provided in §23‑5‑8a of this code, the provisions of this section do not apply to any decision issued by the Workers’ Compensation Board of Review after December 31, 2022.
(a) (b) Review of any final decision of the
board, including any order of remand, may be prosecuted by either party or by
the Workers’ Compensation Commission, the successor to the commission Insurance
Commissioner, other private insurance carriers, and self‑insured
employers, whichever is applicable, to the Supreme Court of Appeals within 30
days from the date of the final order by filing a petition therefor with the
court against the board and the adverse party or parties as respondents. Unless
the petition for review is filed within the 30‑day period, no appeal or
review shall be allowed, such time limitation is a condition of the right to
such appeal or review and hence jurisdictional. The clerk of the Supreme Court
of Appeals shall notify each of the respondents and the Workers’
Compensation Commission, the successor to the commission Insurance
Commissioner, other private insurance carriers, and self‑insured
employers, whichever is applicable, of the filing of such petition. The board
shall, within 10 days after receipt of the notice, file with the clerk of the
court the record of the proceedings had before it, including all the evidence.
The court or any judge thereof in vacation may thereupon determine whether or
not a review shall be granted. If review is granted to a nonresident of this
state, he or she shall be required to execute and file with the clerk before an
order or review shall become effective, a bond, with security to be approved by
the clerk, conditioned to perform any judgment which may be awarded against him
or her. The board may certify to the court and request its decision of any question
of law arising upon the record, and withhold its further proceeding in the
case, pending the decision of court on the certified question, or until notice
that the court has declined to docket the same. If a review is granted or the
certified question is docketed for hearing, the clerk shall notify the board
and the parties litigant or their attorneys and the Workers’ Compensation
Commission, the successor to the commission Insurance Commissioner,
other private insurance carriers, and self‑insured employers, whichever
is applicable, of that fact by mail. If a review is granted or the certified
question docketed, the case shall be heard by the court in the same manner as
in other cases, except that neither the record nor briefs need be printed.
Every review granted or certified question docketed prior to 30 days before the
beginning of the term, shall be placed upon the docket for that term. The
Attorney General shall, without extra compensation, represent the board in such
cases. The court shall determine the matter brought before it and certify its
decision to the board and to the commission. The cost of the proceedings on
petition, including a reasonable attorney’s fee, not exceeding $30 to the
claimant’s attorney, shall be fixed by the court and taxed against the employer
if the latter is unsuccessful. If the claimant, or the commission (in case the
latter is the applicant for review) is unsuccessful, the costs, not including
attorney’s fees, shall be taxed against the commission, payable out of the Workers’
Compensation Fund, or shall be taxed against the claimant, in the discretion of
the court: But there shall be no cost taxed upon a certified question.
(b) (c) In reviewing a decision of the board
of review, the Supreme Court of Appeals shall consider the record provided by
the board and give deference to the board’s findings, reasoning, and
conclusions, in accordance with subsections (c), and (d) and (e)
of this section.
(c) (d) If the decision of the board
represents an affirmation of a prior ruling by both the commission and the
Office of Judges that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the Supreme Court of Appeals
only if the decision is in clear violation of constitutional or statutory
provision, is clearly the result of erroneous conclusions of law, or is based
upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo
reweighing of the evidentiary record. If the court reverses or modifies a
decision of the board pursuant to this subsection, it shall state with
specificity the basis for the reversal or modification and the manner in which
the decision of the board clearly violated constitutional or statutory
provisions, resulted from erroneous conclusions of law, or was based upon the
board’s material misstatement or mischaracterization of particular components
of the evidentiary record.
(d) (e) If the decision of the board
effectively represents a reversal of a prior ruling of either the commission or
the Office of Judges that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the Supreme Court of
Appeals only if the decision is in clear violation of constitutional or
statutory provisions, is clearly the result of erroneous conclusions of law, or
is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning, and
conclusions, there is insufficient support to sustain the decision. The court
may not conduct a de novo reweighing of the evidentiary record. If the court
reverses or modifies a decision of the board pursuant to this subsection, it
shall state with specificity the basis for the reversal or modification and the
manner in which the decision of the board clearly violated constitutional or
statutory provisions, resulted from erroneous conclusions of law, or was so
clearly wrong based upon the evidentiary record that even when all inferences
are resolved in favor of the board’s findings, reasoning, and conclusions,
there is insufficient support to sustain the decision.
§23‑5‑16. Fees of attorney for claimant; unlawful charging or receiving of attorney fees.
(a) An attorney’s fee in excess of 20 percent of any award granted may not be charged or received by an attorney for a claimant or dependent. In no case may the fee received by the attorney of the claimant or dependent be in excess of 20 percent of the benefits, to be paid during a period of 208 weeks. The interest on disability or dependent benefits, as provided in this chapter, may not be considered as part of the award in determining the attorney’s fee. However, any contract entered into in excess of 20 percent of the benefits to be paid during a period of 208 weeks, as herein provided, is unlawful and unenforceable as contrary to the public policy of this state and any fee charged or received by an attorney in violation thereof is an unlawful practice and renders the attorney subject to disciplinary action.
(b) On a final settlement an attorney may charge a fee not to exceed 20 percent of the total value of the medical and indemnity benefits: Provided, That this attorney’s fee, when combined with any fees previously charged or received by the attorney for permanent partial disability or permanent total disability benefits may not exceed 20 percent of an award of benefits to be paid during a period of 208 weeks.
(c) Except attorney’s fees and costs recoverable pursuant to §23‑2C‑21(c) of this code, an attorney’s fee for successful recovery of denied medical benefits may be charged or received by an attorney and paid by the private carrier or self‑insured employer, for a claimant or dependent under this section. In no event may attorney’s fees and costs be awarded pursuant to both this section and §23‑2C‑21(c) of this code.
(1) If a claimant successfully prevails in a proceeding
relating to a denial of medical benefits brought before the commission,
successor to the commission Insurance Commissioner, other private
carrier, or self‑insured employer, whichever is applicable, as a result
of utilization review, arbitration, mediation, or other proceedings, or a combination
thereof, relating to denial of medical benefits before the Office of Judges
Workers’ Compensation Board of Review, or a court, there shall
additionally be charged against the private carriers or self‑insured
employers, whichever is applicable, the reasonable costs and reasonable hourly
attorney’s fees of the claimant. Following the successful resolution of the
denial in favor of the claimant, a fee petition shall be submitted by the
claimant’s attorney to the Insurance Commissioner or his or her successors,
arbitrators, mediator, the Office of Judges Workers’ Compensation
Board of Review or a court, whichever enters a final decision on the
issue. An attorney representing a claimant must submit a claim for attorney’s
fees and costs within 30 days following a decision in which the claimant
prevails and the order becomes final.
(2) The Insurance Commissioner or his or her successors,
arbitrators, mediator mediators, the Office of Judges Workers’
Compensation Board of Review, or a court shall enter an order within
30 days awarding reasonable attorney’s fees not to exceed $125 per hour and
reasonable costs of the claimant to be paid by the private carriers or self‑insured
employers, whichever is applicable, which shall be paid as directed. In no
event may an award of the claimant’s attorney’s fees under this subsection
exceed $500 per litigated medical issue, not to exceed $2,500 in a claim.
(3) In determining the reasonableness of the attorney’s
fees to be awarded, the Insurance Commissioner, arbitrator, mediator, Office
of Judges Workers’ Compensation Board of Review, or court shall
consider the experience of the attorney, the complexity of the issue, the hours
expended, and the contingent nature of the fee.
(d) The amendments to this section made during the 2020 regular session of the Legislature become effective on January 1, 2023.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 5. CONTESTED CASES.
§29A‑5‑4. Judicial review of contested cases.
(a) Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means of review, redress, or relief provided by law.
(b) Proceedings for review of any final order or decision issued on or before December 31, 2022, shall be instituted by filing a petition, at the election of the petitioner, in either the Circuit Court of Kanawha County, West Virginia, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, or with the judge thereof in vacation, within 30 days after the date upon which such party received notice of the final order or decision of the agency. Notwithstanding any provision of this code to the contrary, proceedings for judicial review of any final order or decision issued after December 31, 2022, must be instituted by filing an appeal, at the election of a party desiring appeal, to the Intermediate Court of Appeals as provided in §51‑11‑1 et seq. of this code. A copy of the petition shall be served upon the agency and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, or both. No appeal bond shall be required to effect any such appeal.
(c) The filing of the petition shall not stay enforcement
of the agency order or decision or act as a supersedeas thereto, but the agency
may stay such enforcement, and the appellant, at any time after the filing of
his or her petition, may apply to such circuit court for a stay
of or supersedeas to such final order or decision. Pending the appeal, the
court may grant a stay or supersedeas upon such terms as it deems proper.
(d) Within 15 days after receipt of a copy of the petition
by the agency, or within such further time as the court may allow, the agency
shall transmit to such circuit court the original or a certified copy of
the entire record of the proceeding under review, including a transcript of all
testimony and all papers, motions, documents, evidence, and records as were
before the agency, all agency staff memoranda submitted in connection with the
case, and a statement of matters officially noted; but, by stipulation of all
parties to the review proceeding, the record may be shortened. The expense of
preparing such record shall be taxed as a part of the costs of the appeal. The
appellant shall provide security for costs satisfactory to the court. Any party
unreasonably refusing to stipulate to limit the record may be taxed by the
court for the additional costs involved. Upon demand by any party to the
appeal, the agency shall furnish, at the cost of the party requesting same, a
copy of such record. In the event the complete record is not filed with the
court within the time provided for in this section, the appellant may apply to
the court to have the case docketed, and the court shall order such record
filed.
(e) Appeals taken on questions of law, fact, or both, shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued. The court or judge shall fix a date and time for the hearing on the petition, but such hearing, unless by agreement of the parties, shall not be held sooner than 10 days after the filing of the petition, and notice of such date and time shall be forthwith given to the agency.
(f) The review shall be conducted by the court without a jury and shall be upon the record made before the agency, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision, or order are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or jurisdiction
of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(h) The judgment of the circuit court or the Intermediate Court of Appeals, whichever is applicable, shall be final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals of this state in accordance with the provisions of §29A‑6‑1 of this code.
ARTICLE 6. APPEALS.
§29A‑6‑1. Supreme Court of Appeals.
(a) Any party adversely affected by the final judgment of the circuit court under this chapter may seek review thereof by appeal to the Supreme Court of Appeals of this state, and jurisdiction is hereby conferred upon such court to hear and entertain such appeals upon application made therefor in the manner and within the time provided by law for civil appeals generally: Provided, That a circuit court has no jurisdiction to review a final order or decision in a contested case issued after December 31, 2022.
(b) Any party adversely affected by the final order, decision, or judgment of the Intermediate Court of Appeals under this chapter may seek review thereof by petition to the Supreme Court of Appeals, pursuant to the requirements of §51‑11‑1 et seq. of this code.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51‑2A‑24. Review by Intermediate Court of Appeals; transfer of jurisdiction from circuit courts.
(a) Notwithstanding any provision of this code to the contrary, an appeal of a final order or decision entered by a family court after December 31, 2022, must be made to the Intermediate Court of Appeals, as provided in §51‑11‑1 et seq. of this code.
(b) Notwithstanding any provision of this code to the contrary, a circuit court has no jurisdiction to review a final order or decision entered by a family court after December 31, 2022, if review of the final order or decision is within the jurisdiction of the Intermediate Court of Appeals, as provided in §51‑11‑5 of this code.
article 9. retirement system for judges of courts of record.
§51‑9‑1a. Definitions.
(a) As used in this article, the term “judge”, “judge of any court of record”, or “judge of any court of record of this state” means, refers to, and includes judges of the several circuit courts, judges of the Intermediate Court of Appeals, and justices of the Supreme Court of Appeals. For purposes of this article, the terms do not mean, refer to, or include family court judges.
(b) “Actuarially equivalent” or “of equal actuarial value” means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the retirement board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, “actuarially equivalent” shall be computed using the mortality tables and interest rates required to comply with those requirements.
(c) “Beneficiary” means any person, except a member, who is entitled to an annuity or other benefit payable by the retirement system.
(d) “Board” means the Consolidated Public Retirement Board created pursuant to §5‑10D‑1 et seq. of this code.
(e) “Final average salary” means the average of the highest 36 consecutive months’ compensation received by the member as a judge of any court of record of this state.
(f) “Internal Revenue Code” means the Internal Revenue Code of 1986, as it has been amended.
(g) “Member” means a judge participating in this system.
(h) “Plan year” means the 12‑month period commencing on July 1 of any designated year and ending the following June 30.
(i) “Required beginning date” means April 1 of the calendar year following the later of: (1) The calendar year in which the member attains age 70 and one‑half; or (2) the calendar year in which the member retires or otherwise separates from covered employment.
(j) “Retirement system” or “system” means the Judges’ Retirement System created and established by this article. Notwithstanding any other provision of law to the contrary, the provisions of this article are applicable only to circuit judges, judges of the Intermediate Court of Appeals, and justices of the Supreme Court of Appeals in the manner specified in this article. No service as a family court judge may be construed to qualify a person to participate in the Judges’ Retirement System or used in any manner as credit toward eligibility for retirement benefits under the Judges’ Retirement System.
ARTICLE 11. The West Virginia APPELLATE REORGANIZATION ACT.
§51‑11‑1. Short title.
This article is known and may be cited as the West Virginia Appellate Reorganization Act of 2020.
§51‑11‑2. Findings.
The Legislature finds that:
(1) Section one, article VIII of the Constitution of West Virginia explicitly recognizes the power of the Legislature to establish an intermediate court of appeals;
(2) Section six, article VIII of the Constitution of West Virginia acknowledges that appellate jurisdiction “may be conferred by law exclusively upon an intermediate appellate court” and numerous additional references to the potential creation of an intermediate appellate court by the Legislature appear throughout the Constitution; and
(3) Section three, article VIII of the Constitution of West Virginia grants the West Virginia Supreme Court of Appeals supervisory control over all intermediate appellate courts in the state, including the power to promulgate rules for the procedures of an intermediate appellate court created by statute. The same constitutional provisions name the Chief Justice of the Supreme Court of Appeals the “administrative head” of such courts, empowering the chief justice to exercise supervisory control over an intermediate court of appeals.
§51‑11‑3. Definitions.
For the purpose of this article:
“Circuit court” means a circuit court of this state, as provided in §51‑2‑1 of this code.
“Clerk” means the Clerk of the West Virginia Supreme Court of Appeals, as provided in §51‑1‑11 of this code.
“Intermediate Court of Appeals” means the Intermediate Court of Appeals created by this article.
“Judge” means a person elected to serve as a judge for the Intermediate Court of Appeals, pursuant to this article, or a person appointed to fill a vacancy in the office of judge for the Intermediate Court of Appeals.
“Supreme Court of Appeals” means the West Virginia Supreme Court of Appeals.
§51‑11‑4. West Virginia Intermediate Court of Appeals created; geographical districts.
(a) In accordance with section one, article VIII of the Constitution of West Virginia, the Intermediate Court of Appeals is hereby created. The court shall be established and operable on January 1, 2023.
(b) The Intermediate Court of Appeals is composed of two geographical districts: The Intermediate Court of Appeals for the Northern District and the Intermediate Court of Appeals for the Southern District. Each district has jurisdiction over appeals of final decisions, judgments, or orders entered within the district’s designated counties, as follows:
(1) The Intermediate Court of Appeals for the Northern District has jurisdiction over appeals of decisions, judgments, or orders entered within the following counties: Barbour, Berkeley, Brooke, Doddridge, Grant, Hampshire, Hancock, Hardy, Harrison, Jefferson, Marion, Marshall, Mineral, Monongalia, Morgan, Ohio, Pendleton, Pleasants, Preston, Randolph, Ritchie, Taylor, Tucker, Tyler, Wetzel, Wirt, and Wood.
(2) The Intermediate Court of Appeals for the Southern District has jurisdiction over appeals of decisions, judgments, or orders entered within the following counties: Boone, Braxton, Cabell, Calhoun, Clay, Fayette, Gilmer, Greenbrier, Jackson, Kanawha, Lewis, Lincoln, Logan, Mason, McDowell, Mercer, Mingo, Monroe, Nicholas, Pocahontas, Putnam, Raleigh, Roane, Summers, Upshur, Wayne, Webster, and Wyoming.
(c) Each district of the Intermediate Court of Appeals shall convene, conduct proceedings, and issue decisions, rulings, and opinions of the court in panels of three judges.
(d) The Intermediate Court of Appeals for the Northern District shall conduct proceedings and have its usual and customary seat and offices for all judges and staff in the city of Clarksburg in Harrison County, but may conduct proceedings in other locations within its district by special assignment. The Intermediate Court of Appeals for the Southern District shall conduct proceedings and have its usual and customary seat and offices for all judges and staff in the city of Beckley in Raleigh County, but may conduct proceedings in other locations within its district by special assignment.
§51‑11‑5. Jurisdiction; limitations.
(a) The Intermediate Court of Appeals has no original jurisdiction.
(b) Unless specifically provided otherwise in this article, appeals of the following matters shall be made to the Intermediate Court of Appeals, which has appellate jurisdiction over such matters:
(1) Final judgments or orders of a circuit court in a criminal case, entered after December 31, 2022, or writs of habeas corpus issued by a circuit court after December 31, 2022;
(2) Final judgments or orders of a circuit court in a civil case, entered after December 31, 2022;
(3) Final judgments or orders of a family court, entered after December 31, 2022;
(4) Final judgments or orders of a circuit court concerning guardianship or conservatorship matters, pursuant to §44A‑1‑1 et seq. of this code, entered after December 31, 2022;
(5) Final judgments, orders, or decisions of an agency or an administrative law judge entered after December 31, 2022, heretofore appealable to the Circuit Court of Kanawha County pursuant to §29A‑5‑4 or any other provision of this code;
(6) Final orders or decisions of the Health Care Authority issued prior to December 31, 2022, in a certificate of need review, but transferred to the jurisdiction of the Intermediate Court of Appeals upon termination of the Office of Judges pursuant to §16‑2D‑16a of this code;
(7) Final orders or decisions issued by the Office of Judges after December 31, 2022, and prior to its termination, as provided in §16‑2D‑16 and §23‑5‑8a of this code; and
(8) Final orders or decisions of the Workers’ Compensation Board of Review pursuant to §23‑5‑1 et seq. of this code, entered after December 31, 2022.
(c) In appeals properly filed pursuant to subsection (b) of this section, the parties shall be afforded a full and meaningful review on the record of the lower tribunal and an opportunity to be heard.
(d) The Intermediate Court of Appeals does not have appellate jurisdiction over the following matters:
(1) Judgments or final orders issued in any juvenile proceeding pursuant to §49‑4‑701 et seq. of this code;
(2) Judgments or final orders issued in child abuse and neglect proceedings pursuant to §49‑4‑601 et seq. of this code;
(3) Orders of commitment, pursuant to §27‑5‑1 et seq. of this code;
(4) Final decisions of the Public Service Commission, pursuant to §24‑5‑1 of this code;
(5) Interlocutory appeals;
(6) Certified questions of law; and
(7) Extraordinary remedies, as provided in §53‑1‑1 et seq. of this code, and any appeal of a decision or order of another court regarding an extraordinary remedy: Provided, That this subdivision does not apply to appeals of writs of habeas corpus issued by a circuit court.
§51‑11‑6. Motion for direct review by Supreme Court of Appeals.
(a) Within 10 days after a petition for appeal is properly filed in the Intermediate Court of Appeals, a party to the petition may file a motion to the West Virginia Supreme Court of Appeals for direct review of a final judgment or order that is otherwise within the appellate jurisdiction of the Intermediate Court of Appeals pursuant to §51‑11‑5 of this code, in any of the following cases:
(1) The appeal involves issues of first impression;
(2) The appeal involves a question of fundamental public importance; or
(3) The appeal involves exigencies, in which time is of the essence, necessitating immediate direct review of the appeal by the Supreme Court of Appeals.
(b) Notwithstanding any other provision of this code, if the Supreme Court of Appeals grants a motion filed pursuant to this section within 20 days after such motion is filed, jurisdiction over the appeal is transferred to the Supreme Court of Appeals according to all applicable rules of the court: Provided, That the Intermediate Court of Appeals shall have jurisdiction over any matter remanded to the jurisdiction of the Intermediate Court of Appeals by the Supreme Court of Appeals.
(c) The Legislature requests that the Supreme Court of Appeals develop and adopt rules permitting parties to file a motion for direct appeal to the Supreme Court of Appeals, as described in this section, and that the rules provide for the granting of such a motion only in the extraordinary circumstances described in subsection (a) of this section.
§51‑11‑7. Qualifications of judges.
A person must meet the following eligibility criteria to serve as a judge of the Intermediate Court of Appeals:
(1) The person must be a member, in good standing, of the West Virginia State Bar;
(2) The person must be admitted to practice law in the State of West Virginia for 10 years prior to election to the Intermediate Court of Appeals;
(3) The person must be a resident of the State of West Virginia for five years prior to election to the Intermediate Court of Appeals;
(4) The person must be a resident of the district of the West Virginia Intermediate Court of Appeals in which he or she serves; and
(5) The person may not be engaged in the practice of law while serving as a judge of the Intermediate Court of Appeals.
§51‑11‑8. Election of judges; vacancies; length of terms.
(a) Judges of the Intermediate Court of Appeals shall be elected on a nonpartisan basis to serve 10‑year terms, subject to the exception for the initial election to stagger terms, as provided in subsection (c) of this section. Each judge shall be elected by the voters of the counties within the geographical district of the court in which he or she will serve.
(b) If no candidate for judge of the Intermediate Court of Appeals receives more than 40 percent of the votes cast in the primary election, a runoff election shall be conducted concurrently with the general election. The ballot for the runoff election shall include a provision for selection only between those two candidates who received the highest and second highest number of ballots cast in the applicable division for judge of the Intermediate Court of Appeals in the election for that office held concurrently with the primary election.
(c) Initial Election. — The initial election of judges to the Intermediate Court of Appeals shall take place during the primary election of 2022. Each judge shall be elected to a term beginning on January 1, 2023, with one judge elected to serve a 10‑year term in each district, one judge to serve a six‑year term in each district, and one judge to serve a four‑year term in each district. For the purposes of the initial election of judges pursuant to this subsection, the Secretary of State shall, in each district, establish three separate divisions corresponding to the judicial terms on the ballot. The candidates for election in each numbered division shall be tallied separately, and the eligible candidate receiving the highest numbers of votes cast within a numbered division in his or her district shall be elected to serve the corresponding judicial term.
(d) Regular election of judges. — Following the initial election of judges pursuant to subsection (c) of this section, during the primary election in every year during which a sitting judge’s term will expire, a judge shall be elected to each district of the Intermediate Court of Appeals to serve a 10‑year term commencing on January 1 of the following year.
(e) Vacancies. — If a vacancy arises before the expiration of a judicial term, the vacancy shall be filled as provided in §3‑10‑1 et seq. of this code. A judge appointed to fill a vacancy must meet the requirements in §51‑11‑7 of this code at the time of appointment.
(f) The judges of each district of the West Virginia Intermediate Court of Appeals shall periodically select one judge to serve as chief judge for their respective district, pursuant to rules promulgated by the Supreme Court of Appeals.
(g) A person sitting as a judge of the Intermediate Court of Appeals may not retain his or her position as judge upon becoming a pre-candidate or candidate for any other elected public office, judicial or nonjudicial.
(h) The Legislature recognizes that the Chief Justice of the West Virginia Supreme Court of Appeals has authority to temporarily assign judges to the Intermediate Court of Appeals pursuant to section eight, article VIII of the Constitution of West Virginia, in the event that a judge is temporarily unable to serve on the court.
§51‑11‑9. Rules of practice and procedure; fees; deadlines.
(a) Unless specifically provided otherwise in this article, the pleadings, practice, and procedure in all matters before the Intermediate Court of Appeals are governed by rules promulgated by the Supreme Court of Appeals.
(b) Filing; records. —
All notices of appeals, petitions, documents, and records in connection with an appeal to the Intermediate Court of Appeals shall be filed in accordance with rules promulgated by the Supreme Court of Appeals.
(c) Fees. —
(1) The Clerk of the West Virginia Supreme Court of Appeals may charge a party appealing to the Intermediate Court of Appeals a filing fee in the amount of $200.
(2) All moneys collected pursuant to this subsection shall be deposited in the State Police Forensic Laboratory Fund, created by §15‑2‑24d of this code, and all expenditures from the fund shall comply with the requirements of that section.
(d) Appeal bonds. —
The court may order the payment of an appeal bond before an appeal to the Intermediate Court of Appeals may commence, pursuant to rules promulgated by the Supreme Court of Appeals, and when applicable, the requirements of §58‑5‑14 of this code.
§51‑11‑10. Administration of court.
(a) In accordance with section three, article VIII of the Constitution of West Virginia, the Intermediate Court of Appeals is subject to the administrative control, supervision, and oversight of the West Virginia Supreme Court of Appeals.
(b) Filing; records. — Appeals to the Intermediate Court of Appeals shall be filed with the Clerk of the West Virginia Supreme Court of Appeals. All appeals and other related documents shall be filed by electronic means, when available.
(c) Facilities. — The West Virginia Intermediate Court of Appeals shall hear arguments in the court’s respective districts in the locations specified in §51-11-4 of this code. The Administrative Director of the West Virginia Supreme Court of Appeals shall arrange for facilities in the required locations, where each district of the court will have its usual and customary seat and offices. Facilities may include, but are not limited to, courtrooms in county courthouses, courtrooms in federal courthouses, county commission rooms in county courthouses, rooms or facilities at institutions of higher education, and other suitable spaces in federal, state, county, or municipal buildings throughout the state.
(d) Oral argument. — The Intermediate Court of Appeals has discretion to determine whether appellate review of a case before the court requires oral argument.
(e) Staff. — The Administrative Director of the West Virginia Supreme Court of Appeals shall provide administrative support and may employ additional staff, as necessary, for the efficient operation of the Intermediate Court of Appeals. The budget for the payment of compensation and expenses of the Intermediate Court of Appeals staff shall be included in the appropriation to the Supreme Court of Appeals.
§51‑11‑11. Reporting of judicial information.
(a) The chief judge of each district of the West Virginia Intermediate Court of Appeals shall prepare a biannual report, available to the public, that contains the following information, as it pertains to the judge’s district:
(1) The number of motions that have been pending before the court for more than three months and the name and case number assigned to each appeal in which such motion has been pending; and
(2) The number of appeals that have not been disposed of within six months after filing and the name and case number assigned to each case.
(b) The chief judge of each district of the West Virginia Intermediate Court of Appeals shall submit and certify the list required by this section to the Supreme Court of Appeals and Joint Committee on Government and Finance on a biannual basis.
§51‑11‑12. Written opinions; precedential effect.
(a) The Intermediate Court of Appeals is a court of record and shall issue, as appropriate in each appeal, written opinions, orders, and decisions: Provided, That a written decision on the merits shall be issued as a matter of right in each appeal that is properly filed and within the jurisdiction of the Intermediate Court of Appeals.
(b) A written opinion, order, or decision of the Intermediate Court of Appeals is binding precedent for the decisions of all circuit courts, family courts, magistrate courts, and agencies that lie within the court’s district unless the opinion, order, or decision is overruled or modified by the Supreme Court of Appeals.
§51‑11‑13. Discretionary review by Supreme Court of Appeals by petition.
(a) A party in interest may petition the Supreme Court of Appeals for appeal of a final order or judgment of the Intermediate Court of Appeals in accordance with rules promulgated by the Supreme Court of Appeals.
(b) Upon the proper filing of a notice of appeal in the Supreme Court of Appeals, the order or judgment of the Intermediate Court of Appeals may be stayed pending the appeal, in accordance with rules promulgated by the Supreme Court of Appeals.
(c) The Supreme Court of Appeals has discretion to grant or deny the petition for appeal or certiorari of a decision by the Intermediate Court of Appeals.
(d) Any party who seeks to appeal a final order or judgment of the Intermediate Court of Appeals to the Supreme Court of Appeals, pursuant to this section, and who does not substantially prevail on said appeal, shall pay a post judgment interest rate on the underlying order or judgment from the circuit court in an amount double that authorized by §56-6-31 of this code from the date of the filing of the petition, pursuant to subsection (b) of this section, until the judgment is paid.
§51‑11‑14. Judicial compensation and benefits; expenses.
(a) The annual salary of a judge of the Intermediate Court of Appeals is $130,000. The budget for the payment of compensation and expenses of Intermediate Court of Appeals judges shall be included in the appropriation for the Supreme Court of Appeals.
(b) Intermediate Court of Appeals judges and staff shall be reimbursed for their actual and necessary expenses incurred in the performance of their duties under the guidelines prescribed by the Administrative Director of the Supreme Court of Appeals.
CHAPTER 58. APPEAL AND ERROR.
ARTICLE 5. APPELLATE RELIEF IN THE INTERMEDIATE court of appeals AND the SUPREME COURT OF APPEALS.
§58‑5‑1. When appeal lies.
(a) A party to a civil action may appeal to the Supreme Court of Appeals from a final judgment of any circuit court or from an order of any circuit court constituting a final judgment as to one or more but fewer than all claims or parties upon an express determination by the circuit court that there is no just reason for delay and upon an express direction for the entry of judgment as to such claims or parties: Provided, That an appeal of a final order or judgment of a circuit court entered after December 31, 2022, shall be to the Intermediate Court of Appeals, as required by §51‑11‑1 et seq. of this code.
(b) As provided in §51‑11‑13 of this code, a party in interest may petition the Supreme Court of Appeals for appeal of a final order or judgment of the Intermediate Court of Appeals in accordance with rules promulgated by the Supreme Court of Appeals.
(c) The defendant in a criminal action may appeal to the Supreme Court of Appeals from a final judgment of any circuit court in which there has been a conviction, or which affirms a conviction obtained in an inferior court.
Adopted
Rejected