Introduction
The Workers’ Compensation Board of Review issues written decisions in protests (also called objections) from decisions issued by insurance carriers, self-insured employers, the Offices of the Insurance Commissioner, or their claim administrators. Our goal is to resolve these protests in a fair, efficient, and timely manner. We are strictly neutral and do not assist, or take the side of, the injured worker (claimant), the employer, or the claim administrator. The claimant may seek representation by an attorney or may proceed without an attorney (pro se).
The Workers' Compensation Board of Review uses e-filing for all protests. Attorneys must file through the e-filing portal, which can be found at https://bor.wvinsurance.gov/. To protect the right to protest for all parties, unrepresented claimants who do not have access to e-filing may file by submitting their documents by mail or fax. There are demonstration videos under the Board of Review Navigation section of this website to assist you in using the online filing portal. When you submit a protest, you need to include a copy of the claim administrator’s order, sign and date your protest, send copies of the protest to the other parties, and write on your protest that you sent copies to the other parties.
For unrepresented claimants who do not have access to e-filing, submit your protest to the following address:
Workers’ Compensation Board of Review
PO Box 2628
Charleston, WV 25329-2628
After the Board of Review receives your protest, the Board issues an “Acknowledgement of Protest and Automatic Time Frame Order.” This Order will include a deadline to submit evidence in support of your protest. The Board of Review does not have access to evidence that was submitted to the claim administrator, so you must submit all of your evidence to the Board, send copies to the other parties, and write on your documents that you sent copies to the other parties. If you do not submit evidence or argument in support of your protest, the Board will issue an order upholding the claim administrator’s order.
Several different protests in your claim may be pending before the Board of Review at the same time. Evidence submitted for one protest does not automatically get considered in all protests. Make sure that you identify each protest in which you want your evidence considered. Use the “Document Submission Form,” found in the Forms section of this website, so we will know for which protest the evidence is intended.
The Board of Review has a "Description of Physical Evidence” form which is to be used when parties wish to submit physical evidence. Physical evidence consists of video tapes, audio tapes, photos, dust samples, x-rays, etc. The purpose of this form is to ensure that certain basic information that is needed to properly index the document is provided. Do not submit CDs containing medical records. The medical records you want the Board of Review to consider should be printed and submitted with the "Document Submission Form."
The Board of Review schedules hearings when a party requests a hearing and shows good cause for the request. Testimony may be obtained during a deposition, which is then transcribed and submitted to the Board. Many issues can be decided based entirely on written documents without a hearing.
At the end of the Time Frame, we will issue a notice that contains a list of all the evidence received. If there is any mistake in that list, you must immediately call us and let us know of the error.
The Board’s final decision may be appealed by any party to the West Virginia Intermediate Court of Appeals.
Failure of Claim Administrator to Act or Rule Timely on Claim Request (e-file as a protest)
W.Va. Code § 23-4-1c(a)(3) provides a process by which claimants may submit a protest to the Board of Review when the claim administrator fails to timely rule or act upon any request in a workers’ compensation claim. Many common actions in workers compensation claims (rule on the compensability of the claim, schedule a doctor’s examination, act upon a doctor’s request, etc.) have legally established time limits for insurance carriers to act. Those time limits are found at various sections of Chapter 23 of the W.Va. Code and in several regulatory rules in Title 85 of the Code of State Rules.
The Board of Review’s Procedural Rule, West Virginia Code of State Rules § 102-1-17, provides the procedure for submitting this type of protest. The Rule may be accessed through the main menu of this website. Key provisions include:
- Upon receipt of a properly completed “Petition Alleging Employer or its Claim Administrator has Failed to Timely Act" form, the Board of Review will notify the claim administrator of the filing of the protest and will set forth a deadline for submission of any statements or evidence that any party wishes to submit.
- The Board of Review will report its findings and conclusions about the protest to the Offices of the Insurance Commissioner.
- The Offices of the Insurance Commissioner will then decide whether to impose fines, or other sanctions, upon the carrier.
- This process does not apply to claims administered by the Offices of the Insurance Commissioner and its third-party administrators.
Expedited Process (e-file as a motion)
W.Va. Code § 23-4-1c(a)(3) provides an expedited process, which is automatic in protests involving the “Failure of Claim Administrator to Act or Rule Timely” and which the claimant may request in the following three types of protests:
- Denial of compensability of a claim
- Denial of temporary total disability benefits
- Denial of medical authorization
The Board of Review’s Procedural Rule, West Virginia Code of State Rules § 102-1-9, provides the procedure for submitting a request for an expedited process. Key provisions include:
- The option must be made in writing and received by the Board of Review no later than fifteen (15) days after the date of the “Acknowledgement of Protest.”
- Electing this option shortens the Time Frame (deadline) allowed to obtain and file evidence.
- Electing this option shortens the time for a decision to be issued in your protest.
Attorney’s Fees for Unreasonable Denial (e-file as a protest)
W.Va. Code § 23-2C-21(c) provides that if an order denying compensability, temporary total disability, or authorization for medical benefits has been reversed, then the claimant may submit to the Board of Review an allegation that the denial was unreasonable. This process applies to orders issued by self-insured employers and private carriers. It does not apply to claims administered by the Offices of the Insurance Commissioner and its third-party administrators. If the Board of Review determines that the denial was unreasonable, then reasonable attorney’s fees and costs shall be awarded to the claimant.
The Board of Review’s Procedural Rule, West Virginia Code of State Rules § 102-1-18, provides the procedure for this request. Key provisions include:
- The relief is only available for three types of protests:
- Denial of compensability
- Denial of temporary total disability benefits
- Denial of authorization for medical benefits
- The request must be filed within ninety (90) days of the final decision that is issued at the conclusion of all appeals regarding the claimant’s protest of the specific, relevant denial. The claimant may use the "Request for Award of Claimant’s Attorney Fees and Expenses – WV Code §23-2C-21(c)” form.
- A denial is unreasonable if the claim administrator is unable to demonstrate that it had evidence or a legal basis supported by legal authority at the time of the denial which is relevant and probative and supports the denial.
- New evidence submitted during the protest process, which the claim administrator did not have at the time of the denial, will not be considered as part of the attorney’s fee award process.
- The Board of Review’s ruling does not set the actual amount of the attorney’s fee and expenses. If attorney’s fees are awarded under this process, then the claimant’s attorney must submit a petition for attorney’s fees to the private carrier or self-insured employer.
Attorney’s Fees for Denial of Medical Benefits (e-file as a motion)
W.Va. Code § 23-5-16a(c) provides that an attorney’s fee for successful recovery of denied medical benefits may be awarded against a private carrier or self-insured employer. Following the successful resolution of the denial in favor of the claimant, a fee petition shall be submitted by the claimant’s attorney within thirty days following a decision in which the claimant prevails and the order becomes final. If the Board of Review entered the final decision on the issue, then the petition is filed with the Board of Review. The Board shall enter an order within thirty (30) days of receipt of the claimant’s fee petition, awarding reasonable attorney’s fees not to exceed $125.00 per hour and reasonable costs of the claimant. In no event may an award of the claimant’s attorney’s fees exceed $500.00 per litigated medical issue, not to exceed $2,500.00 in a claim. The claimant’s attorney may use the "Petition for Award of Claimant’s Attorney Fees and Costs – WV Code §23-5-16a(c)" form.
Court Reporter Fees
The Offices of the Insurance Commissioner of West Virginia will pay reasonable and customary reporter fees for a deposition that is presented as evidence in workers' compensation litigation before the Board of Review. Use the “Court Reporter Invoice” found in the Forms section of this website.
Court Reporter Invoice for Appearance at Cancelled Deposition
The Insurance Commissioner will also pay reasonable and customary fees for those instances when a deposition is cancelled without prior notice. The purpose of this form is to verify that the court reporter is entitled to an appearance fee. Use the "Verification of Court Reporter's Appearance at Cancelled Deposition" found in the Forms section of this website.
Subpoenas and Subpoenas Duces Tecum
If you need to subpoena a witness, or a witness with records, we provide a subpoena form that may use and serve upon the witness by regular U.S. mail. Use the "Subpoena Packet" found in the Forms section of this website.