Final Decision Backlog
Lack of Case Management Information

Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex
(304) 347-4890


The West Virginia Legislature created the Office of Judges (hereafter OOJ) as an independent organization headed by a Chief Administrative Law Judge. The Governor, with the advice and consent of the Senate, appoints the Chief Administrative Law Judge (hereafter ALJ), however, he/she is a will and pleasure officials. According to provisions of §23-5-9, the Chief ALJ has the statutory power to hear and determine all disputed claims in accordance with the provisions of this article, establish a procedure for hearing disputed claims, take oaths, examine witnesses, issue subpoenas, establish the amount of witness fees, keep such records and make such reports as are necessary for disputed claims, and exercise such additional powers, including the delegation of such powers to administrative law judges or hearing examiners as may be necessary for the proper conduct of an organization for administrative review of disputed claims, as stated in §23-5-8 of the West Virginia Code.

Prior to creation of the OOJ, the Commissioner of Workers' Compensation and its legal division were responsible for the dispute resolution process within the agency. However, the Workers' Compensation appeals process was criticized for three obvious reasons: a lack of due process, a lack of substance within legal decisions, and a lack of expediency. To remedy this blatant deficiency of the Workers' Compensation division, the OOJ was created by a special session of the West Virginia Legislature in June 1990. Under West Virginia Code §25-5-1, the OOJ was granted jurisdiction over all new protest request. The OOJ's administrative appellate power commenced on July 1, 1991. All cases, which were in the litigation process were transferred to the jurisdiction of the OOJ on January 1, 1991.

By creating the OOJ, the West Virginia Legislature addressed the structural weaknesses within the Workers' Compensation dispute resolution process. First, the lack of due process was remedied by establishing the OOJ as an independent organization, which is headed by the Chief ALJ who is appointed by the Governor and confirmed by the Senate. The Chief ALJ can only be removed by a vote of two thirds of the members of the compensation programs performance council and shall not be removed except for official misconduct, incompetence, neglect of duty, gross immortality or malfeasance and then only after he or she has been presented in writing with the reasons for their removal and is given opportunity to respond and to present evidence (WVC §25-5-8). Second, the lack of substance within previous Workers' Compensation administrative law decisions was remedied by requiring that all OOJ decisions contain findings of fact and conclusions of law. Lastly, the West Virginia Legislature attempted to remedy the lack of expediency in processing cases by requiring that the OOJ manage and control the litigation process. The OOJ is still attempting to comply with this issue. Nevertheless, three issues compound the OOJ's problem of case management: the inherited 30,000 claim backlog (which the Chief ALJ claims to have largely eliminated), the conversion from a manual processing and record keeping system to an automated case management system, and the difficulty of changing the culture of the Workers' Compensation dispute resolution process.

On March 16, 1993, the West Virginia Supreme Court, citing section 2.50 of the American Bar Associations' Standards Relating to Court Delay Reduction ("the court, not the lawyers or litigants, should control the pace of litigation.") stated, "under the current procedure, the time frame order is entered automatically, and, unless there is an objection, nothing more is done with the claim until the time frame expires (Lyons v. Richardson, 189 W.Va. 157, 54). As a result of the West Virginia Supreme Courts ruling the OOJ instituted Time Standards to comply with the Courts holding and expedite the dispute resolution process. Time Standards are shown in Table 1.

Office of Judges Time Standards

Protest TypeTime Standards
1) Compensability - Protests concerning whether an injury or disease occurred in the course of and as a result of employment.180 Days
2) Rehabilitation - Protests concerning whether an individual is entitled to receive physical or vocational rehabilitation benefits as a result of a compensable injury.300 Days
3) Medical Treatment - Protest concerning whether an individual should receive a particular kind of medical treatment or medical equipment in regard to a compensable injury.120 Days
4) Temporary Total Disability Benefits - Protest concerning whether an individual, as a result of the compensable injury, is temporarily unable to perform the job he/she had at the time the injury occurred or at a later time if necessary.180 Days
5) Dependent Benefits (104 Weeks) - Protest concerning whether an individual is a dependent of a person receiving permanent total disability and whether that person is entitled to receive the 104 weeks of benefits provided by law.120 Days
6) Dependent Benefits (Fatal) - Protest concerning whether a compensable injury or disease was a material contributing factor to the death of a deceased claimant.540 Days
7) Permanent Partial Disability - Protest concerning whether claimants have any permanent partial (not total) disability as a result of a compensable injury.450 Days
8) Occupational Pneumoconiosis Non-Medical - Protest concerning whether an individual has been exposed to the hazards of occupational pneumoconiosis for the requisite time period provided by law, whether any impairment is presumed to have been caused by such exposure, and whether any award should be allocated among different employers. 270 Days
9) Permanent Total Disability Threshold - Protest concerning whether an individual has 50% whole-body medical impairment resulting from compensable injuries so as to qualify that claimant for consideration for permanent total disability.240 Days
10) Permanent Total Disability Entitlement - Protest concerning whether a claimant is permanently and totally disabled in accordance with law.240 Days
11) Permanent Total Disability Onset/Changeability - Protest concerning the date permanent total disability commenced once it has been determined that an individual is permanently and totally disabled.120 Days
12) Permanent Total Disability Second Injury - Protest concerning whether a permanent total disability award should be paid from the second injury fund. 120 Days
13) TTD Reopening - Protest concerning whether the claim of an individual who has suffered a compensable injury should be reopened 150 Days

ISSUE AREA 1: The Office of Judges Does Not Meet the Thirty Day Final Decision Time Standard 75% of the Time.

The Office of Judges is mandated by §23-5-9 of the West Virginia Code, as amended, to render a decision in a workers' compensation PROTEST case within thirty days from the final hearing before an administrative law judge. A PROTEST is an appeal of a decision of benefits made by the Workers' Compensation Division. WVC §23-5-9 states that upon consideration of the entire record, the chief administrative law judge or an administrative law judge within the office

of judges shall, within thirty days after final hearing, render a decision affirming, reversing or modifying the division's action. The decision shall contain findings of fact and conclusions of law and shall be mailed to all interested parties (1995, c. 253) (W.Va. Code Workers' Compensation p.194). The West Virginia Supreme Court's dicta comments, in Lyons v. Richardson, 429 S.E.2d 157, affirmed the W.Va. Code's, 23-5-9 requirement that the ALJ "shall, within thirty days after final hearing, render a decision affirming, reversing or modifying the commissioner's action," and that "[s]aid decision shall contain findings of fact and conclusions of law and shall be mailed to all interested parties" (Lyons v. Richardson, 429 S.E.2d 157, 44, 50). Further, in Scites v. Huffman, 174 W.Va. 191, 324 S.E.2d 152 (1984), the court held that the thirty-day provision is not triggered until the final hearing is held. Therefore, the OOJ is responsible for a final decision 30 days after the final hearing has been conducted.

The OOJ fails to make this deadline approximately 75% of the time (see Figure 1). As can be seen

from the graph, the performance of the OOJ in this area has been relatively consistent with the percentage of timely decisions fluctuating between 10% and 30%. Figure 2 shows the monthly decisions for the Office of Judges for the same period as reported above.

The Office of Judges currently has 3,254 PROTESTS, which have had a final hearing and are ready for a decision. Of those PROTESTS approximately 1,900 have exceeded the final thirty day time frame set by the OOJ (see TABLE 2). The Office of Judges informed the Legislative Auditor that final decision time frames have not been a management priority, but that various other time frames for the development of PROTEST cases, e.g., discovery of evidence, have been the major focus of caseload management. Further, the Chief Judge conceded that a backlog of cases exist at the final decision stage of the dispute resolution process. The Judge admitted after meeting with the Legislative Auditor and reviewing the data in the TABLE 2 that the information, which had to be hand tabulated, had never been collected for management review until this audit.

Table 2 data is based on current caseloads as of December 4, 1997. To further measure the performance of the OOJ in relation to final decisions, the Legislative Auditor obtained data from closed cases for three days of each months from June, July, August of 1995, and three days for January, February, and March of 1996. These time periods allow all protest type time standards to be completed. Table 3 reports that the current level of 75% late cases is supported by a rate of 74% late cases for two sample periods of 1995 and 1996.

Further, the total time standard, that is, from filing a protest until a final decision was not in compliance about 40% of time, compared to the OOJ's record of 20% noncompliance. It appears the OOJ includes cases withdrawn in calculating its compliance with their time standards. In our sample of 422 cases, 104 cases were withdrawn by the claimant or employer. The Legislative Auditor considered over six months, or six times the statutory time frames to see an extremely serious backlog. Table 4 provides a breakdown of 223 cases that have been ready for an administrative law judge to issue a decision for six months to four years or more. Four of the cases in the "over four years" category had actually been ready for a decision for six and one-half years. The OOJ's inability to meet their Time Standards is perplexing in light of Lyons'
comment, which states, "We can only state that these time frames are no longer than we have set out in our time schedules for circuit courts where the issues are more complex (p.54)."

To accentuate the problem concerning backlogged final decisions, the OOJ informed the Legislature Auditor that it expects a major influx of complex cases (Permanent Total Disability) in 1998. A court order was issued by special Judge James Holliday on October 9, 1997, which compels the Division of Workers Compensation to eliminate a backlog of 4000 claims by July 1, 1998. The OOJ expects to receive two of every three cases as a protest; specifically Permanent Total Disability cases.

The effects of issuing final decisions untimely means that claimants experience several hardships: a lack of proper medical treatment needed for a quality recovery, a lack of monetary resources to pay for living expenses and medical expenses that have incurred during the dispute resolution process. Moreover, the impact of not making timely final decisions affects employers who spend excessive resources defending themselves for extended periods of time. Although the Legislative Auditor did not measure the impact on claimants, it is common sense to expect serious financial hardship on injured workers and their families. The Chief Administrative Law Judge stated in a letter dated December 18, 1997, regarding the cost benefit of putting more judges to work on final decisions of Workers' Compensation Protest:

It is my belief based on my discussions with dozens of claimant attorneys and employer attorneys and with claimants and employers, that absolute technical compliance with the 30 day statutory requirement is not a high priority item with our customers. Thus, to expend resources to enhance the performance level that our customers do not believe needs to be enhanced does not seem to make any sense.


PROTEST TYPE0-3031-6061-9091-180181-360360+TOTALS
Was the injury/disease work- related?10729192074186
Rehabilitation Services31219121276
Medical Treatment/Equipment21612854801720515
Temporary Total Disability15356233157275
Dependent Benefits46420016
Dependent Benefit for Fatality116761334
Permanent Partial Disability52534528012925281332
Occupational Pneumoconiosis
Permanent Total Disability Threshold: 50% medical impairment2410018
Permanent Total Disability 277251481118227
Permanent Total Disability: Onset Date for calculation of benefits1710530136
Reopening of any previous claim7230153598169

Compliance With 30-Day Final Decision and Total Time Schedules

Time Standard
Number of Cases (Protests)
Cases Late
Cases Late Within 10 DaysCases Late Over 10 Days
30-Day Final Decision Time Standard
Total Time Standard**

*Adjusted for withdrawn cases and/or cases without submit dates as appropriate.
**Adjusted according to type of protest.

Extremely Serious Protest Decision Backlog





Medical Treatment/
Temporary Total Disability0039
Dependent Benefit 1040000
Dependent Benefit Fatal0110
Permanent Partial Disability071225
Occupational Pneumoconiosis Non-Medical1113631
Permanent Total Disability Threshold121115
Permanent Total Disability Entitlement0000
Permanent Total Disability Onset Date0100







TTD CLOSURE14050190180
DEATH BENEFITS (Fatal)50750557540
OP NON-MED25151302270
OP BOARD42061481450

ISSUE AREA 2: The Office Of Judges Does Not Know How Many Cases It Has In Its System, Or What Stage Of The Process Those Cases Are Currently In, If The Case Was Filed Before June 1, 1995.

The Legislative Auditor asked the Office of Judges how many PROTEST cases were currently active in its caseload. In a letter dated December 5, 1997, the Chief Judge responded:

We do not have a programmed report which would list all the protests which are active. We have formulated a query which generated a list of active protest filed after June 1, 1995, which is attached.

As to the protests fielded prior to June 1, 1995, we have a report that lists 11,597 protests that are active. For reasons that I explained to you in our telephone conversation, we know it is not accurate...Our best estimate is that there are 6,000 to 8,000 active protests that were filed prior to June 1, 1995.

The report for active cases known to be in the Office of Judges' computer system is summarized in TABLE 6 below.

Available data on active PROTEST cases

Medical Treatment/Equipment1,365
Temporary Total Disability835
Dependent Benefit 1045
Dependent Benefit Fatal454
Permanent Partial Disability9,037
Occupational Pneumoconiosis Non-Medical1,734
Permanent Total Disability Threshold43
Permanent Total Disability Entitlement333
Permanent Total Disability Onset Date82

After the Lyons v. Richardson case, the OOJ spent $1 million for a computer system to track its PROTEST cases and pays a monthly fee of $1,500 for use of that system. Despite the investment in the information system, the agency does not know how many cases it has and therefore cannot know what stage in the process the cases are in; furthermore, they cannot determine compliance with the time standards as promulgated in Legislative Rule. When asked about backlogged cases from the estimated 6,000 to 8,000 dated prior to June 1, 1995, the Legislative Auditor was told there was no backlog, but that these PROTEST cases are in the "inventory" of the OOJ.

Again, Lyons, 189 W.Va. 157, 54, addresses the management of judicial cases. The Court states, "lack of intervention by the OOJ in effect defers the management of the case to the attorneys." Furthermore, Lyons stated, "one cannot help but believe that this procedure is designed to accommodate the attorneys rather than to promptly dispose of the claim (189 W.Va.157, 54)." Moreover, the W.V. Supreme Court argued in Lyons, 189 W.Va. 157, 54, that the OOJ's method of management is contrary to any theory of case "management which stresses that the judges must control the docket rather than the attorneys." The court cites the American Bar Associations Standards Relating to Court Delay Reduction which states, "The court not the lawyers or litigants, should control the pace of litigation."

Calling its cases "inventory" defies any semblance of a proactive case management philosophy. Not knowing whether you have 28,000 cases or 24,000 cases is not acceptable court management. More importantly, not knowing anything about 27 to 40 percent of the cases (depending on which number of cases is accurate) places the OOJ at the mercy of parties involved in the claim. The OOJ's inefficiency allows attorneys able room to manipulate the system because the court is unaware of the claims within their system.

After Lyons, 189 W.Va. 157, the OOJ paid one million dollars to a contractor for the construction of a case management system. The Legislature Auditor's request for data were always met with full cooperation, but considerable exasperation resulted because the OOJ's computer system could not produce basic information considered essential for effective case management by the Legislative Auditor.

In conclusion, Lyons v. Richardson, 429 S.E.2d 44 (W.Va. 1993), states, "the petitioners asserted that the Automatic time Frame Orders issued by the Chief ALJ are invariably issued after a lengthy delay" (p.51). The W.Va. Supreme Court responded to the petitioners in Lyons v. Richardson by stating, "This case serves to demonstrate that the new system appears to be operated no more efficiently than the old" (p.52).

The Legislature Auditor concludes, as did the Supreme Court, that the present system appears to be operated no more efficiently than previous system.

Recommendation 1:

The Legislative Auditor recommends that the Legislature consider terminating Workers' Compensation Office of Judges as scheduled, and that Legislature create through statute an alternative appellant procedure.

Recommendation 2:

If the Legislature decides not to terminate the Workers' Compensation Office of Judges as scheduled, the Legislative Auditor recommends that the Office of Judges date of termination be extended by one year and that the Office's performance be further reviewed.