Litigation Process Remains Time Consuming and Expensive
Under West Virginia law, virtually every claim decision a private carrier makes can be appealed (i.e. “protested”) through various litigation stages all the way to the state’s Supreme Court. In fact, almost every claim decision a private carrier issues on any topic can be protested by: 1) the private carrier’s insured (regardless of whether the policy prohibits such an appeal); and, 2) the claimant.
The West Virginia workers’ compensation law mandates an onerous process for the resolution of such contested claims decisions. First, the law requires that carriers must give written notice of all their claims decisions and that each of these notices must include a notice to the recipient of his/her right to protest the decision.
Once an objection (i.e. protest) has been filed, the contested decision is forwarded to the Office of Judges where all parties to the claim may produce evidence and participate in hearings on the disputed issue. This process typically takes about one year under the Office of Judge’s published time frame rules. (Most all claims are paid during this process; a “stay” is only rarely granted to permit the carrier to not pay.) In 2006, there were nearly 14,000 protests filed with the Office of Judges.
Corporate policyholders must be represented by legal counsel if they wish to participate in proceedings before the Office of Judges. Claimants nearly always retain legal counsel as well. At the conclusion of these proceedings, an administrative law judge issues a decision which either party may appeal to a three-person review tribunal known as the Board of Review.
The Board of Review will review the legal briefs filed by the parties and render a ruling that affirms or reverses the decision of the administrative law judge. There are approximately 5,000 appeals filed with the Board of Review annually.
If the claimant, policyholder or private carrier is dissatisfied with the Board’s ruling, a petition for appeal may be filed with the West Virginia Supreme Court of Appeals. If the Supreme Court elects to review the case, both parties must file legal briefs with this highest court in West Virginia. At last count, there were literally thousands of workers’ compensation petitions pending before the Supreme Court. In fact, over 60 percent of the Supreme Court’s docket consists of workers’ compensation appeals.
Finally, it must be noted that claim litigation remains somewhat inevitable. Although recent legislative reforms have made settling cases more attractive, significant hurdles remain. First, medical benefits in non-orthopedic occupational disease claims such as occupational pneumoconiosis (black lung) and other occupational disease claims cannot be settled. Furthermore, even if a settlement is reached, claimants must be given the State Bar’s toll free number (providing them with a last second chance to retain counsel) and are given five days thereafter to revoke any agreement to settle the claim dispute.
Given that: 1) more than 14,000 protests are filed annually with the Office of Judges; 2) West Virginia law allows policyholder protests notwithstanding the prohibition of such protests in the approved NCCI policy; 3) more than 60 percent of the state Supreme Court’s docket consists of workers’ compensation appeals; and, 4) there continue to be hurdles to settling a claim, it is clear that the workers’ compensation litigation juggernaut remains a challenge.