H. B. 3180
(By Delegates Webster, Hrutkay, Brown, Miley,
Kessler, Burdiss, Guthrie and Fleischauer)
[Introduced February 22, 2007; referred to the Committee on the
Judiciary.]
A BILL to amend and reenact §23-5-9 of the Code of West Virginia,
1931, as amended, relating to the granting of workers'
compensation benefits on review or appeal; implementation of
an award of workers' compensation benefits granted by an
administrative law judge's decision; and referencing the
mechanism for handling any overpayment which may result if a
favorable decision granting benefits is subsequently reversed.
Be it enacted by the Legislature of West Virginia:
That §23-5-9 of the Code of West Virginia, 1931, as amended,
be amended and reenacted as follows:
ARTICLE 5. REVIEW.
§23-5-9. Hearings on objections to commission or self-insured
employer decisions; mediation; remand.
a) Objections to a decision of the Workers' Compensation
Commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, made pursuant to the provisions of section one of this article shall be filed with the office of judges. Upon receipt of
an objection, the office of judges shall notify the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, and all other
parties of the filing of the objection. The office of judges shall
establish by rule promulgated in accordance with the provisions of
subsection (e), section eight of this article 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 and the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall be notified
of any hearing at least ten days in advance. The office of judges
shall review and amend, or modify, as necessary its procedural
rules by the first day of July, two thousand seven.
(b) The office of judges shall establish a program for
mediation to be conducted in accordance with the requirements of
rule twenty-five 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
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 shall assign a mediator from a list of qualified
mediators maintained by the West Virginia State Bar.
c) The office of judges shall keep full and complete records
of all proceedings concerning a disputed claim. Subject to the rules of practice and procedure promulgated pursuant to section
eight of this article, the record upon which the matter shall be
decided shall include any evidence submitted by a party to the
office of judges, evidence taken at hearings conducted by the
office of judges and any documents in the claim files which relate
to the subject matter of the objection. 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 is not bound by the usual common
law or statutory rules of evidence.
(d) All hearings shall be conducted as determined by the chief
administrative law judge pursuant to the rules of practice and
procedure promulgated pursuant to section eight of this article.
Upon consideration of the designated record, the chief
administrative law judge or other authorized adjudicator within the
office of judges shall, based on the determination of the facts of
the case and applicable law, render a decision affirming, reversing
or modifying the action protested. The decision shall contain
findings of fact and conclusions of law and shall be mailed to all
parties.
(e) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of October, two
thousand three. Until the rule is promulgated, any rules
previously promulgated shall remain in full force and effect.
(f) The office of judges may remand a claim to the commission,
the successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable, for further
development of the facts or administrative matters as, in the
opinion of the administrative law judge, may be necessary for a
full and complete disposition of the case. The administrative law
judge shall establish a time within which the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, must report back
to the administrative law judge.
(g) The decision of the workers' compensation office of judges
regarding any objections to a decision of the workers' compensation
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, is final and benefits shall be paid or denied in
accordance with the decision. unless 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 reversal, such overpayment may
be recovered pursuant to the provisions of subsection d, section
one-d, article four chapter twenty-three of this code.
Note: The purpose of this bill is to make it clear that
workers' compensation benefits which are directed to be paid by a
decision rendered by an administrative law judge are to be paid
while a decision is pending on appeal. The bill also references
the proper mechanism for handling any overpayments which may
result in the event that an administrative law judge's decision
awarding benefits is subsequently reversed on appeal.