H. B. 4646
(By Delegates Trump, Border and Blair)
[Introduced
February 26, 2004
; 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 payment of mediators appointed
by the office of judges of the workers' compensation
commission and providing that in certain cases one-half the
expenses and fees of the mediator shall be withheld from the
claimants benefits.
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 to read 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 or of a self-insured employer 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 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 shall be notified of any
hearing at least ten days in advance.
(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. A mediator
shall be paid a fee and expenses based upon the reasonable hourly
rate generally charged by mediators in civil actions. If the
mediator is involved in an issue concerning the duration, extent or
amount of benefits, the fee and expenses of the mediator shall be
paid by the commission with: (1) One-half the costs of mediation being assessed as a cost of the claim and charged to the employer;
and (2) one-half the cost being assessed as a cost to the claimant
and shall be withheld by the commission from any benefits issued
thereafter to the claimant. If the mediation does not involve the
duration, extent or amount of benefits, the fees and expenses of
the mediator shall be paid by the commission and assessed as an
expense of the claim chargeable to the employer.
(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 commission's 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 commission's action. 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
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 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 or a self-insured employer is final and benefits shall
be paid or denied in accordance with the decision unless the
decision is subsequently appealed and reversed in accordance with
the procedures set forth in this article.
NOTE: The purpose of this bill is to provide for the payment of fees and expenses of mediators appointed by the office of judges
of the workers' compensation commission and providing that in
certain cases one-half the expenses and fees of the mediator shall
be withheld from the claimant's benefits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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