COMMITTEE SUBSTITUTE

FOR

H. B. 3180


(By Delegates Webster, Hrutkay, Brown, Miley,

Kessler, Burdiss, Guthrie and Fleischauer)

(Originating in the Committee on the Judiciary)

(February 23, 2007)


A BILL to amend and reenact §23-5-9 of the Code of West Virginia, 1931, as amended, relating to the granting of workers' compensation benefits on review or appeal; requiring the prompt implementation of any benefit award of workers' compensation granted by an administrative law judge's decision, unless stayed by the administrative law judge or the Board of Review; establishing appropriate standards of review for any stay request; and referencing the proper mechanism for handling any overpayment which may result if a favorable decision granting benefits is subsequently reversed.

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 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, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier or self- insured employers employer, whichever is applicable, 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, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier or self-insured employers employer, whichever is applicable, 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, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier self-insured employers employer, whichever is are applicable, shall be notified of any hearing at least ten days in advance. The office of judges shall review and amend, or modify, as necessary its procedural rules by the first day of July, two thousand seven.
(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.
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 and evidence taken at hearings conducted by the office of judges. and any documents in the 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 action protested. 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) (e) The office of judges may remand a claim to the commission, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier or self- insured employers employer, whichever is applicable, 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, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier or self-insured employers employer, whichever is applicable, must report back to the administrative law judge.
(g) (f) The decision of the workers' compensation office of judges regarding any objections to a decision of the workers' compensation commission, the successor to the commission, other Insurance Commissioner private insurance carriers and carrier or self-insured employers 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 appeal board created in section eleven of this article or by the administrative law judge who granted the benefits. Before any order granting such a stay may be granted, the judge or board of review must determine that the party seeking the stay has a reasonable likelihood of success on appeal, that payment of the benefits while the matter remains on appeal would place an undue hardship on the party seeking the stay, and an undue hardship will not be placed upon the claimant if the payment of benefits were delayed, pending final outcome of the appeal. 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 d, section one-d, article four chapter twenty-three of this code.