Prior to creation of the OOJ, the Commissioner of
Workers' Compensation and their 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 requests. 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 immorality 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 Association's 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 Court's ruling the OOJ instituted Time Standards to comply with the Court's holding and expedite the dispute resolution process. Time Standards are shown in Table 1.
|Protest Type||Time Standards|
|1) Compensability - Protests concerning whether an injury or disease occurred in the course of and as a result of employment.|| 6 Months (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.||10 Months (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.|| 4 Months for claimants (120
6 Months for employers (180 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.||6 Months (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.||4 Months (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.||18 Months (540 Days)|
|7) Permanent Partial Disability - Protest concerning whether claimants have any permanent partial (not total) disability as a result of a compensable injury.||15 Months (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.||9 Months (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.|| 8 Months (240 Days)|
|10) Permanent Total Disability Entitlement - Protest concerning whether a claimant is permanently and totally disabled in accordance with law.||15 Months (450 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.||4 Months (120 Days)|
|12) Permanent Total Disability Second Injury - Protest concerning whether a permanent total disability award should be paid from the second injury fund.||4 Months (120 Days)|
|13) TTD Reopening - Protest concerning whether the claim of an individual who has suffered a compensable injury should be reopened||5 Months (150 Days)|
|PROTEST TYPE||NUMBER OF PROTESTS|
|Temporary Total Disability||23|
|Dependent Benefit 104||161|
|Dependent Benefit Fatal||60|
|Permanent Partial Disability||2852|
|Permanent Total Disability Threshold||2|
|Permanent Total Disability Entitlement||127|
|Permanent Total Disability Onset Date||5|
|Permanent Total Disability 2nd Injury||20|
The Office of Judges has increased its monthly average for number of decisions written by almost 500 per month since last year. This average was 1433 decisions per month for the time period covered in last year's report. The time period for the update showed an increase to 1928 decisions per month (see Figure 2).
|PROTEST TYPE||0-3 0||31-6 0||61-9 0||91-1 80||181-36 0||360 +||TOTALS|
Temporary Total Disability
|Dependent Benefit for Fatality||1||16||7||6||1||3||34|
|Permanent Partial Disability||525||345||280||129||25||28||1332|
|Permanent Total Disability Threshold: 50% medical impairment||2||4||1||0||0||1||8|
|Permanent Total Disability||27||72||51||48||11||18||227|
|Permanent Total Disability: Onset Date for calculation of benefits||17||10||5||3||0||1||36|
|Reopening of any previous claim||72||30||15||35||9||8||169|
|PROTEST TYPE||0-30||31-6 0||61-9 0||91-18 0||181-360||360 +||TOTALS|
|Temporary Total Disability||88||33||37||4||4||1||167|
|Dependent Benefit for Fatality||13||0||0||4||0||0||17|
|Permanent Partial Disability||209||136||195||43||10||0||593|
|Permanent Total Disability Threshold: 50% medical impairment||0||0||0||0||0||0||0|
|Permanent Total Disability||9||2||1||5||0||0||17|
|Permanent Total Disability: Onset Date for calculation of benefits||11||0||2||0||0||0||13|
|Permanent Total Disability: Second Injury||1||0||0||0||0||0||1|
|Reopening of any previous claim||36||24||5||10||0||0||75|
The Legislative Auditor recommends that an additional
compliance monitoring and further inquiry update of the Workers'
Compensation Office of Judges be conducted within the next year.
Issue Area 3: Backlog of Permanent Total Disability Cases Decided by the Workers' Compensation Division Is Beginning to Impact the Caseload of the OOJ
The 1997 report briefly identified a potential crisis looming on the horizon for the OOJ. The potential crisis is a backlog of approximately 4,000 Permanent Total Disability (PTD)cases that had been building up in the Workers' Compensation Division. Last year, the Supreme Court of Appeals of West Virginia recalled Judge James Holliday and situated him in the Circuit Court of Kanawha County to conduct all proceedings pertaining to Workers' Compensation on behalf of the Supreme Court of Appeals. On October 9, 1997, Judge Holliday signed an order requiring the Workers' Compensation Division to render decisions on approximately 1,500 backlogged "Old Law"PTD cases by February 15, 1998 and approximately 2,500 Ferral "Old Law" PTD cases by June 15, 1998.
The OOJ estimates that approximately two thirds of the cases will be appealed to them. If this happens, there will be an additional 2,680 additional PTD protests appealed to the OOJ in a short period of time. PTD protests are more complex than the other types of protests that the OOJ receives and are only assigned to its staff of administrative law judges. The OOJ has already experienced a significant increase in the number of PTD protests received (see Table 6). As can be seen the number of PTD protests appealed to the OOJ has increased 400% since last year and has increased 1,300% since 1996.
|TOTAL NUMBER OF PTD PROTESTS||AVERAGE PTD PROTESTS PER MONTH|
|1/96 - 12/96||112||9|
|1/97 - 10/97||310||31|
|11/97 - 10/98||1393||116|
Month / Year
|Number of PTD Protests Received||Projected Decision Month / Year*|
|November 1997||47||February 1999|
|December 1997||56||March 1999|
|January 1998||46||April 1999|
|February 1998||57||May 1999|
|March 1998||104||June 1999|
|April 1998||150||July 1999|
|May 1998||91||August 1999|
|June 1998||119||September 1999|
|July 1998||159||October 1999|
|August 1998||168||November 1999|
|September 1998||204||December 1999|
|October 1998||192||January 2000|
The Compensation Programs Performance Council shall monitor the progress of the Office of Judges as it works to improve compliance with time standards.
The OOJ should submit a plan to the Compensation Programs Performance Council for handling the increased Permanent Total Disability protests.