The Office of Judges (OOJ) was created in 1991 to replace the Workers' Compensation Legal Division as the entity to handle appeals of workers' compensation claims. The OOJ is the first step in the Workers' Compensation appeals process. Appeals of OOJ decisions go to the Workers' Compensation Appeal Board and appeals of the Board's decisions go to the Supreme Court of Appeals. The OOJ had time standards codified in state rules in 1995 in an effort to reduce the amount of time it takes to get a case through its appeals process.

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. The OOJ fails to make this deadline approximately 75% of the time.

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. Out of that number, 223 PROTESTS have been waiting for six months or more (see table below). It was found that there were four cases that have been waiting for six and one half years. The Office of Judges told the Legislative Auditor that the final decision time frame has not been a management priority, but rather the overall time standards have been the major focus of management of caseload. Further, the Chief Judge conceded that there is a backlog of cases in the final decision stage of the process after meeting with the Legislative Auditor.

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

A second survey reviewed cases filed on random days during a six month period revealed similar results (see table below). In addition to checking compliance with the 30 day requirement for final decisions, the survey checked OOJ's compliance with the total time standard. 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% non-compliance. The cases most out of compliance with the time standards were Permanent Total Disability, which has a time standard of 120 days but were completed on an average of 421 days. The next two protest categories with the low levels of compliance were for Medical Treatment and Compensability which have time standards of 120 days and 180 days; respectively. The average amount of time for these cases were 236 days and 241 days; respectively. The Chief Administrative Law Judge stated the cases withdrawn by claimants and employers were included in calculating its compliance with time standards.

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.

To accentuate the problem concerning backlogged final decisions, the OOJ informed the Legislature Auditor that it expects a major influx of complex cases in 1998. A court order issued by Special Judge James Holliday on October 9, 1997 compels the Division of Workers Compensation to eliminate a backlog of 4,000 Permanent Total Disability cases by July 1, 1998. The OOJ expects to receive two of every three cases as a protest.

The impact of not making timely final decisions effects both claimant and employer. Either the injured or medically impaired worker faces financial hardship, or the employer spends excessive resources defending itself for lengthy periods. 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 December 18,1997, regarding the cost benefit of putting more judges to work on the final decision of a 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.

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 OOJ paid $1 million for a computer system to track cases. Despite this investment, the OOJ cannot tell how many active PROTEST cases are it has under consideration. The West Virginia Supreme Court of Appeals, in Lyons v. Richardson, stated, "Long delays in processing claims for [workers'] compensation is not consistent with the declared policy of the Legislature to determine the rights of claimants as speedily and expeditiously as possible." The OOJ's disposition in this area is contradictory to Legislative policy.

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.