FULL PERFORMANCE EVALUATION OF THE
WORKERS' COMPENSATION DIVISION
PERMANENT TOTAL DISABILITY BACKLOG
In a consolidated mandamus action, Anderson, et al and Young, el al v. Vieweg (1997), the petitioners sought to compel the Commissioner of the Bureau of Employment Programs to enter orders on a backlog of permanent total disability (PTD) cases which had not been acted upon in a timely fashion by the Workers' Compensation Division. The resulting writ of mandamus established time frames for the processing and deciding of the cases. These time frames were recommended to the Court by the Workers' Compensation Division. The Workers' Compensation Division understood the writ to apply to 2,485 cases covered in Ferrell v. Vieweg and 1,461 "Old Law" cases. By March 31, 1998 all "Old Law" claimants were required to either be in a rehabilitation program, or to have been formally granted or denied PTD benefits. The Ferrell claims' time frames were as follows:
Permanent total disability cases are multidimensional, voluminous and complex. Resolving nearly 4,000 PTD cases without slowing the resolution of other types of cases is a mammoth undertaking. Clearly, the Bureau has made a concerted effort to comply with the decision, though its efforts have fallen short of what was directed in the Court's order. Since the decision, the Bureau has made regular reports to the Court, apprising it of the status of cases and any relevant issues. On one occasion the Bureau requested clarification from the Court on how the stay in Ferrell should impact its disposal of related Anderson cases, and on another occasion the Bureau proposed a revised plan for case disposition. The Court responded to neither, nor has the Court enforced its order. While the Court's silence can be interpreted to mean many things, the order stands. This review has assessed compliance with the order and is not a gauge of the Court's satisfaction or dissatisfaction with the Bureau's progress.
As of July 29, 1998 there were 1,665 (67%) Ferrell cases awaiting a final order on their PTD petitions. A count of "Old Law" cases found that 1,338 (92%) were either enrolled in a rehabilitation program or were formally granted or denied benefits. Several factors contributed to the failure to comply with the Anderson directive, including the following:
The delay in issuing final orders in a large percentage of Ferrell cases has had a number of effects. The delayed decisions have resulted in a delay in the receipt of benefits. Some claimants have been waiting for several years for a final order. The Workers' Compensation Division is also in violation of §23-4-16 of the West Virginia Code which requires it to make decisions upon petitions for permanent total disability awards within 30 days of the petition. Finally, the greater the delays in processing petitions, the longer it will take for claimants to receive rehabilitation assessments and programs that are necessary to prepare them for a return to the job market. The delay in receiving rehabilitation may result in some claimants remaining permanently unemployed.
The remaining Ferrell cases require final orders so that claimants can begin receiving benefits or appealing decisions. Most of the incomplete cases are currently bottlenecked at the Legal Services Division, awaiting decisions. Because attorneys working on these cases are engaged under contract and being paid an hourly rate, allocating these cases across a greater number of contract attorneys would represent little, if any, additional cost, but could result in a more expeditious disposition. The Legal Services Division should evaluate its current contract attorney needs so that it may issue final orders on the remaining Ferrell cases as quickly as possible. In so doing, it should provide for adequate supervisory review of decisions drafted by contract lawyers. It may be necessary to increase capacity for supervisory review by assigning an exemplary contract attorney to review cases, with limited random sampling of these reviewed decisions by LSD full-time attorneys.