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.
6 MONTHS TO 1 YEAR
1 TO 2 YEARS
2 YEARS TO 4 YEARS
4 OR MORE YEARS
|Temporary Total Disability||0||0||3||9|
|Dependent Benefit 104||0||0||0||0|
|Dependent Benefit Fatal||0||1||1||0|
|Permanent Partial Disability||0||7||12||25|
|Occupational Pneumoconiosis Non-Medical||1||11||36||31|
|Permanent Total Disability Threshold||1||2||11||15|
|Permanent Total Disability Entitlement||0||0||0||0|
|Permanent Total Disability Onset Date||0||1||0||0|
|Number of Cases (Protests)|
|Cases Late Within 10 Days||Cases Late Over 10 Days|
|30-Day Final Decision Time Standard|
|Total Time Standard**|
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.
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.
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.