Whats New

November 20, 2007

AMENDED PROCEDURE FOR PETITION TO STAY
Please be advised that during the 2007 legislative session, the Legislature amended West Virginia Code § 23-5-9(g). The new section [now 23-5-9(f)], effective upon passage [3/10/07], provides:

“The decision of the office of judges 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 section eleven of this article or by the administrative law judge who granted the benefits. No stay with respect to any medical treatment or rehabilitation authorized by the office of judges may 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 reversal, any such overpayment may be recovered pursuant to the provisions of subsection (h), section one-c, article four, of this chapter or subsection (d), section one-d of said article, as applicable.”
(relevant part of amendment underscored)

Effective October 15, 2007, 93 CSR 1, sections 17.1-17.6, provides the process for filing for a stay.  Please note the following (changes made by latest amendment are underscored):

1. The Insurance Commissioner, private carrier, or self-insured employer may file a petition for stay of implementation of a Decision of Administrative Law Judge within ten (10) calendar days of the date of the Decision of Administrative Law Judge.  The petition must be received by the Office of Judges no later than the close of business on the 10th day following the date of the decision.
   
   
2. The petition may be filed with the Administrative Law Judge who issued the decision, or may be filed with the Workers’ Compensation Board of Review.  If filed with the Board of Review, the petition must accompany the Notice of Appeal.  (Note: this allows stays with the Board of Review to be filed later than the ten day limit if filed with the ALJ).
   
   
3. The preparation of, and filing of, a petition for stay and supporting argument is considered to be the practice of law. Therefore, petitions must be filed by an attorney licensed to practice in the State of West Virginia.
   
   
4. The petition, and any response, shall be filed with the Office of Judges on a ‘FORM’ provided by the Office of Judges.  A copy of the FORM can be found on this website under “FORMS”.
   
   
5. The petition shall include the following information:
   a.         Date of ALJ decision;
   b.         Indication that copy of petition was submitted to opposing side and counsel;
   c.         Statement of reasons why the stay is being sought; and
   d.         Statement of grounds for underlying appeal.
   
   
6. The amendment language does not provide for a stay to be automatically granted. Therefore, the burden is on the petitioning party to explain what unusual circumstances exist which justify the granting of a stay.
   
   
7. The party opposing implementation of a stay may file a response with the Administrative Law Judge, or Board of Review, within ten (10) calendar days of the date of certification of submission of the petition. Responses must be received no later than the close of business on the tenth day following the submission of the petition.
   
   
8. The Administrative Law Judge, or Board of Review, will rule upon the petition within ten (10) calendar days of the filing of the response, or the end of the response period, whichever occurs sooner. The ALJ may deny the stay without waiting for the filing of a response if the petition is clearly without merit or the arguments submitted are insufficient on a legal or factual basis to justify the granting of a stay.
   
   
9. Statutory time limitations to file notice of appeal are not tolled by the filing of a petition for a stay.
   
   
10. The carrier need not pay any award resulting from the ALJ decision while the petition for stay is being considered.
    
    
11. The Office of Judges’ decision to grant or deny the petition for stay is not appealable.

Legislation effective March 9, 2006, amended W.Va. Code §23-5-12 so that notices of appeals from ALJ decisions and orders are no longer filed with the Office of Judges. Notice of appeal must now be filed with the Board of Review. The filing time limits remain unchanged: within thirty days of receipt of the ALJ order or no later than 60 days from the date of the order.

Although the code section does state that a copy of the notice of appeal must be filed with the Office of Judges, the filing of a copy is not necessary because the Office of Judges and the Board of Review share a data base of all document images. You may safely ignore that requirement of the section.

The Board of Review has revised its Notice of Appeal Form. The new form may be found in our FORMS section of this web site.

Three new processes created for the Office of Judges by the 2005 amendments are now in place. The new processes are:

• Failure of Carrier to Act or Rule Timely on Claim Request
• Attorney Fee Awards for Unreasonable Denial of Claims
• Expedited Adjudication Option for Certain Issue Types

Each new process has its own section at this web site.

Many changes to the workers’ compensation law occurred in the amendments passed in the Special Session of 2005. Among those changes are:

• Settlements are no longer approved by the Office of Judges;
• Additional types of protest issues must now be expedited by the Office of Judges;
• Changes to the PTD evaluation and appeal process in §§ 23-4-6(j) and 23-4-6(n). [Not effective until termination of Commission]

Here is a Link to access a copy of the latest W.Va. workers’ compensation law reform, S.B. 1004.