CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
WVC 21 A- 7 -
ARTICLE 7. CLAIM PROCEDURE.
WVC 21 A- 7 - 1
Claims for benefit shall be made in accordance with the
rules and regulations prescribed by the commissioner.
WVC 21 A- 7 - 2
§21A-7-2. Display of regulations.
An employer shall post and maintain in places readily
accessible to individuals in his service the claim procedure
regulations prescribed by the commissioner. At the time any such
individual becomes unemployed, an employer shall furnish such
individual with a copy of the regulations. The commissioner shall
provide an employer copies of the regulations without cost.
WVC 21 A- 7 - 3
The commissioner shall appoint deputies to investigate all
claims, and to hear and initially determine all claims for
benefits excepting claims relating to labor disputes or
disqualification under subdivision four of section three, article
six of this chapter.
WVC 21 A- 7 - 4
§21A-7-4. Investigation by deputy; notice and hearing before
deputy; referral of labor dispute claims for hearing
and determination by appeal tribunal; initial
determination of other claims by deputy; notice of
findings and decision.
(a) A deputy shall promptly investigate all claims.
(b) Upon the filing of any claim for benefits, notice thereof
shall promptly be given by the commissioner or his designee to the
employer concerned, in writing. The employer shall have a period
of four calendar days from the receipt of such notice within which
to furnish to the deputy or his local office initial information
respecting the claim and the facts and circumstances pertaining to
the claimant's unemployment. If, within said four-day period, any
party shall request a hearing before the deputy, such hearing
shall be held, upon notice to all parties by the commissioner or
his designee, either by delivery in person or by mail, within five
calendar days of receipt of such request. Such hearing shall be
informal in nature, but shall afford the parties reasonable
opportunity to present, in person, information relevant to the
eligibility and disqualification of the claimant.
(c) If it appears from the deputy's investigation and from all
of the information before him, that a claim relates to a labor
dispute or to a disqualification under subdivision (4), section
three, article six of this chapter, the claim shall be transferred
to the board for full hearing and initial determination by an
(d) If it appears from the deputy's investigation, and from all of the information before him, that a claim does not relate to
a labor dispute or to a disqualification under subdivision (4),
section three, article six of this chapter, the deputy shall
determine whether or not such claim is valid, and, if valid, shall
(1) The week with respect to which benefits will commence;
(2) The amount of benefit;
(3) The maximum duration of benefits.
(e) After any finding or determination by a deputy, the deputy
shall promptly notify the claimant and the employer of his findings
WVC 21 A- 7 - 5
Acts, 1939 Reg. Sess., Ch. 134.
WVC 21 A- 7 - 6
Acts, 1939 Reg. Sess., Ch. 134.
WVC 21 A- 7 - 7
§21A-7-7. Appeal tribunals.
The board shall determine the manner of hearing cases
transferred or appealed from a decision of a deputy. All cases
relating to labor disputes or to disqualification under
subdivision (4), section three, article six of this chapter, and
transferred to an appeal tribunal for initial determination,
shall be heard by an appeal tribunal composed either of three
administrative law judges assigned by the board, or the board
itself, as the board may direct in particular cases or in
particular areas. All other appeals from the decision of a
deputy shall be heard by an appeal tribunal composed, as the
board may direct in particular cases or in particular areas, of a
single administrative law judge; a tribunal of three
administrative law judges assigned by the board; a member of the
board; or the board itself.
WVC 21 A- 7 - 7 A
§21A-7-7a. Hearings and determinations by appeal tribunal in
labor dispute cases.
Upon transfer to the board of a case relating to a labor
dispute or to a disqualification under subdivision four, section
three, article six of this chapter, for hearing and initial
determination by an appeal tribunal, the parties shall be entitled
to a full and complete hearing and opportunity to present evidence
before an appeal tribunal as provided in section seven of this
article. Within eight days after the transfer or referral of such
a case to the board, the board shall fix the time and place for
hearing such case, and notify the claimant, last employer, and the
commissioner, ten days in advance of the date set for hearing. All
such cases shall be heard and determined as expeditiously as
possible and shall be given priority over all other cases. Upon
consideration of all evidence the appeal tribunal shall make a
decision with respect to all questions fairly raised by the record,
within fourteen days after the date of the hearing, and shall
notify the claimant, last employer, and the commissioner of its
findings and decisions.
WVC 21 A- 7 - 8
§21A-7-8. Appeal from deputy's decision.
A claimant, last employer or other interested party, may
file an appeal from the decision of the deputy within eight
calendar days after notice of the decision has been delivered or
mailed to the claimant and last employer as provided in section
four of this article. The period within which an appeal from the
decision of the deputy may be filed shall be stated in such
notice. The decision of the deputy shall be final and benefits
shall be paid or denied in accordance therewith unless an appeal
is filed within such time.
Upon appeal from the determination of a deputy, an
individual shall be entitled to a fair hearing and reasonable
opportunity to be heard before an appeal tribunal as provided in
section seven of this article.
Within eight days after receipt by the board of notice of
appeal from the decision of a deputy, the board shall fix the
time and place for hearing such appeal, and notify the claimant,
last employer, and the commissioner, ten days in advance of the
date set for hearing.
Upon consideration of all evidence the appeal tribunal shall
make a decision within twenty-one days after the date of the
hearing and shall notify the claimant, last employer, and the
commissioner of its findings and decision.
WVC 21 A- 7 - 9
§21A-7-9. Appeal from appeal tribunal's decision; finality of
A claimant, last employer, or other interested party may
file an appeal to the board from the decision of an appeal
tribunal within eight calendar days after notice of the decision
has been delivered or mailed to the claimant and last employer.
The commissioner shall be deemed an interested party. The
decision of the appeal tribunal shall be final unless an appeal
is filed within such time.
WVC 21 A- 7 - 10
§21A-7-10. Review by board.
The board may, on its own motion, after notice to the
claimant, last employer, and the commissioner, eight days in
advance of the date set for hearing, affirm, modify, or reverse
and set aside a decision of an appeal tribunal. Any appeal from
a decision of an appeal tribunal allowing benefits in a case
relating to a labor dispute or to a disqualification under
subdivision four, section three, article six of this chapter,
shall be heard as expeditiously as possible and given priority
over all other cases and shall be decided by the board within ten
days after the hearing before the board.
WVC 21 A- 7 - 11
§21A-7-11. Benefits pending appeal.
(a) Benefits found payable by decision of a deputy, appeal
tribunal, the board or court shall be immediately paid up to the
week in which a subsequent appellate body renders a decision, by
order, finding that benefits were not or are not payable.
(b) If, at any appeal stage, benefits are found to be payable
which were found before the appeal stage to be not payable, the
commissioner shall immediately reinstate the payment benefits.
(c) If the final decision in any case determines that a
claimant was not lawfully entitled to benefits paid to him or her
pursuant to a prior decision, the amount of benefits paid are
(1) The commissioner shall recover such amount by civil action
or in any manner provided in this code for the collection of
past-due payment and shall withhold, in whole or in part, as
determined by the commissioner, any future benefits payable to the
individual and credit the amount against the overpayment until it
is repaid in full.
(2) The commissioner may not bill an employer under section
three-a, article five of this chapter for overpaid amounts of
benefits paid to a claimant. In any instance where the
commissioner has billed an employer, the employer has paid the
billed amount and the amount is determined under this section to be
an overpayment, the commissioner shall reimburse the employer for
the amount of the overpayment paid by the employer from the Unemployment Compensation Trust Fund, if allowed by federal law,
and if not from the Administrative Fund: Provided, That no employer
shall be entitled to any payment under this subdivision unless such
employer has filed all requested adequate separation information
within the required time frame.
(d) If the final decision in any case determines that the
claimant was not lawfully entitled to the benefits paid to him or
her pursuant to a prior order any benefits paid pursuant to the
prior order, are not chargeable to the employer's account.
(e) Whenever the commissioner finds that a claimant has
received back pay at his or her customary wage rate from his or her
employer the employee is liable to repay the benefits, if any, paid
to the individual for the time he or she was unemployed.
(f) In any case in which, under this section, an employee is
liable to repay benefits to the commissioner, the amount is
collectible by civil action in the name of the commissioner.
(g) Whenever an employer subject to this chapter is required
to make a payment of back pay to an individual who has received
unemployment compensation benefits during the same period covered
by the back pay award, the employer shall withhold an amount equal
to the unemployment compensation benefits and shall repay the
amount withheld to the Unemployment Compensation Trust Fund. If an
employer fails to comply with this section, the commissioner may
recover from the employer the amount of unemployment compensation
benefits which should have been withheld by a civil action.
WVC 21 A- 7 - 12
All hearings before the board shall be before at least a
quorum of its members.
WVC 21 A- 7 - 13
§21A-7-13. Board to establish regulations for procedure.
The board shall establish, and may from time to time modify
and amend, rules and regulations for:
(1) The conduct and determination of benefit cases appealed
to it, or to an appeal tribunal;
(2) The form of all papers and records thereof;
(3) The time, place, and manner of hearings;
(4) Determining the rights of the parties; and the rules
need not conform to the common-law or statutory rules of evidence
and procedure and may provide for the determination of questions
of fact according to the predominance of the evidence.
WVC 21 A- 7 - 14
The board shall keep full and complete records of all
proceedings concerning a disputed claim. All testimony upon a
disputed claim shall be recorded but need not be transcribed
unless the claim is appealed.
WVC 21 A- 7 - 15
§21A-7-15. Notice of decision.
The board shall, within fifteen days after the conclusion of
the hearing, notify the claimant, last employer, and the
commissioner of its findings and decision on an appeal.
WVC 21 A- 7 - 16
§21A-7-16. Interested parties not to decide disputed claims.
A person interested in the determination of any disputed
claim arising under this chapter shall not participate on behalf
of the commissioner or the board in the determination thereof.
WVC 21 A- 7 - 17
§21A-7-17. Finality of board's decision -- Judicial review.
The decision of the board shall be final and benefits shall
be paid or denied in accordance therewith, unless a claimant,
last employer, or other interested party appeals to the circuit
court of Kanawha county within thirty days after mailing of
notification of the board's decision: Provided,
That, in cases
relating to a disqualification under subdivision (4) of section
three of article six the decision of the board shall be final and
benefits shall be paid or denied in accordance therewith, unless
a claimant, last employer, or other interested party appeals to
the circuit court of Kanawha county within twenty days after
mailing of notification of the board's decision.
Parties to the proceedings before the board shall be made
defendants in any such appeal; and the commissioner shall be a
necessary party to such judicial review.
WVC 21 A- 7 - 18
§21A-7-18. Claim procedure costs.
Witness fees of subpoenaed witnesses shall be charged to the
WVC 21 A- 7 - 19
§21A-7-19. Administrative procedure to be exhausted.
A person claiming an interest under the provisions of this
article shall exhaust his remedies before the board before
seeking judicial review.
WVC 21 A- 7 - 20
§21A-7-20. Board a necessary party to judicial action; legal
The board shall be made a party to every judicial action
which involves its decisions. The board may be represented in
such actions by an attorney of the department or at the board's
request, by the attorney general.
WVC 21 A- 7 - 21
§21A-7-21. Weight accorded board's findings of fact.
In a judicial proceeding to review a decision of the board,
the findings of fact of the board shall have like weight to that
accorded to the findings of fact of a trial chancellor or judge
in equity procedure.
Repealed. Acts, 1967 Reg.
Sess., Ch. 200.
WVC 21 A- 7 - 22
Acts, 1967 Reg. Sess., Ch. 200.
WVC 21 A- 7 - 23
§21A-7-23. Trial; preference on calendar.
Except as limited by section twenty-one of this article, a
decision of the board taken to the circuit court of Kanawha county
for judicial review shall be tried as any other civil action:
Provided, That such actions shall have preference on the calendar
of the court over all other civil actions, except cases arising
under the workers' compensation law.
WVC 21 A- 7 - 24
§21A-7-24. Exceptions; appeal bond.
In any judicial proceeding arising under this chapter it
shall not be necessary to enter exception to the rulings of the
board and no bond shall be required for entering an appeal.
WVC 21 A- 7 - 25
§21A-7-25. Service of process.
Service in such action shall be upon the chairman of the
board or such person as he may designate, and service upon him
shall be treated as completed service upon all parties to the
original dispute. With such service upon the board there shall be
included a copy of the petition for review and as many additional
copies as there are defendants, including the commissioner. The
chairman of the board or such person as he may designate shall
immediately upon receipt of service forward a copy of such
service, including a copy of the petition for review, by
registered mail to each defendant, including the commissioner.
WVC 21 A- 7 - 26
§21A-7-26. Certification and filing of record; certification of
questions of law.
The board shall certify and file with the court all
documents and papers and a transcript of all testimony taken in a
disputed claim together with its findings of fact and decision
Upon its own motion the board may also certify to the court
questions of law involved in any of the board's decisions.
§21A-7-27. Appeal to supreme court of appeals.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
WVC 21 A- 7 - 28
§21A-7-28. Effect of judicial decision.
Upon the final determination of such judicial proceeding the
board shall enter an order in accordance with the court's
WVC 21 A- 7 - 29
A petition for judicial review shall not act as supersedeas
or stay unless the board shall so order.
WVC 21 A- 7 - 30
§21A-7-30. Appeals from administrative decisions relative to
chargeability of benefits.
Appeals shall lie to the board of review, in the manner as
provided in this article relating to appeal from an examiner's
decision, and under such rules, regulations, and procedure as may
be prescribed by the board, from an administrative decision of
the commissioner relating to chargeability of benefits. Appeals
shall lie from a final decision of the board of review in such
case to the circuit court of Kanawha county and thence to the
supreme court of appeals of West Virginia within the times and in
the manner as provided in this article.