ENROLLED
Senate Bill No. 790
(By Senators Kessler, Dempsey, Fanning, Foster,
Hunter, Jenkins, Minard, Oliverio, Barnes, Caruth,
Deem, Harrison, Lanham, McKenzie and Weeks)
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[Passed March 9, 2006; in effect from passage.]
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AN ACT to amend and reenact §23-5-12 of the Code of West Virginia,
1931, as amended, relating to filing appeals of workers'
compensation decisions to the board of review.
Be it enacted by the Legislature of West Virginia:
That §23-5-12 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. REVIEW.
§23-5-12. Appeal to board; procedure; remand and supplemental
hearing.
(a) Any employer, employee, claimant or dependent who shall
feel aggrieved at any final action of the administrative law judge
taken after a hearing held in accordance with the provisions of
section nine of this article shall have the right to appeal to the
board created in section eleven of this article for a review of
such action. The Workers' Compensation Commission, the successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall likewise
have the right to appeal to the board any final action taken by the
administrative law judge. The aggrieved party shall file a written
notice of appeal with the board of review, with a copy to the
office of judges, within thirty days after receipt of notice of the
action complained of or, in any event, regardless of notice, within
sixty days after the date of the action complained of, and unless
the notice of appeal is filed within the time specified, no appeal
shall be allowed, the time limitation is a condition of the right
to appeal and hence jurisdictional. The board shall notify the
other parties immediately upon the filing of a notice of appeal.
The notice of appeal shall state the ground for review and whether
oral argument is requested. The office of judges, after receiving
a copy of the notice of appeal, shall forthwith make up a
transcript of the proceedings before the office of judges and
certify and transmit it to the board. The certificate shall
incorporate a brief recital of the proceedings in the case and
recite each order entered and the date thereof.
(b) The board shall set a time and place for the hearing of
arguments on each claim and shall notify the interested parties
thereof. The review by the board shall be based upon the record
submitted to it and such oral argument as may be requested and
received. The board may affirm, reverse, modify or supplement the decision of the administrative law judge and make such disposition
of the case as it determines to be appropriate. Briefs may be
filed by the interested parties in accordance with the rules of
procedure prescribed by the board. The board may affirm the order
or decision of the administrative law judge or remand the case for
further proceedings. It shall reverse, vacate or modify the order
or decision of the administrative law judge if the substantial
rights of the petitioner or petitioners have been prejudiced
because the administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of
the administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) After a review of the case, the board shall issue a
written decision and send a copy by mail to the parties.
(1) All decisions, findings of fact and conclusions of law of
the board of review shall be in writing and state with specificity
the laws and facts relied upon to sustain, reverse or modify the
administrative law judge's decision.
(2) Decisions of the board of review shall be made by a
majority vote of the board of review.
(3) A decision of the board of review is binding upon the
executive director and the commission and the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, with respect to the parties
involved in the particular appeal. The executive director, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall have the
right to seek judicial review of a board of review decision
irrespective of whether or not he or she appeared or participated
in the appeal to the board of review.
(d) Instead of affirming, reversing or modifying the decision
of the administrative law judge, the board may, upon motion of any
party or upon its own motion, for good cause shown, to be set forth
in the order of the board, remand the case to the chief
administrative law judge for the taking of such new, additional or
further evidence as in the opinion of the board may be necessary
for a full and complete development of the facts of the case. In
the event the board shall remand the case to the chief
administrative law judge for the taking of further evidence, the
administrative law judge shall proceed to take new, additional or
further evidence in accordance with any instruction given by the
board within thirty days after receipt of the order remanding the case. The chief administrative law judge shall give to the
interested parties at least ten days' written notice of the
supplemental hearing, unless the taking of evidence is postponed by
agreement of parties, or by the administrative law judge for good
cause. After the completion of a supplemental hearing, the
administrative law judge shall, within sixty days, render his or
her decision affirming, reversing or modifying the former action of
the administrative law judge. The decision shall be appealable to
and proceeded with by the board of review in the same manner as
other appeals. In addition, upon a finding of good cause, the
board may remand the case to the Workers' Compensation Commission,
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, for further
development. Any decision made by the commission, the successor to
the commission, other private insurance carriers and self-insured
employers, whichever applicable, following a remand shall be
subject to objection to the office of judges and not to the board.
The board may remand any case as often as in its opinion is
necessary for a full development and just decision of the case.
(e) All appeals from the action of the administrative law
judge shall be decided by the board at the same session at which
they are heard, unless good cause for delay thereof be shown and
entered of record.
(f) In all proceedings before the board, any party may be represented by counsel.