W. Va. Code R. § 102-1-11 - Occupational Pneumoconiosis

11.1. Non-medical order. The order of the claim administrator determining whether the claimant has met the requirements set out in W. Va. Code § 23-4-15b shall hereinafter be referred to as a non-medical order. Litigation regarding such order, including any issue regarding the chargeability of an employer, must be conducted by the parties during the non-medical litigation. The issue of chargeability shall not be litigated before the Occupational Pneumoconiosis Board during litigation on permanent partial disability awards for occupational pneumoconiosis, although medical questions involving the issue of causation of the claimant's occupational pneumoconiosis may be referred to the Occupational Pneumoconiosis Board.

11.2. Referrals to the Occupational Pneumoconiosis Board during non-medical litigation shall be made at the discretion of the Board of Review only when there is a reasonable doubt about any medical question regarding the issues determined in the non-medical order. In making its opinion as to whether the claimant's employment with a particular employer could have caused claimant's breathing problems, the Occupational Pneumoconiosis Board shall review any relevant medical records and such other information in the record as the Occupational Pneumoconiosis Board deems relevant to the claimant's medical condition.

11.3. Hearings before the Occupational Pneumoconiosis Board

11.3.1. Time frames. The procedure regarding requests for extensions of time frames and continuances of hearings for claims involving permanent partial disability awards for occupational pneumoconiosis shall be the same as in all other claims.

11.3.2. Initial hearing. Upon request of any party, the Board of Review may set an initial hearing for the sole purpose of examining the Occupational Pneumoconiosis Board members about their findings based upon their examinations of the claimant upon which the award in litigation was based. Requests for such hearings must be made no more than ninety (90) days after the beginning of the protesting party's time frame. At such initial hearing the parties shall not ask the Occupational Pneumoconiosis Board to evaluate evidence introduced in support of the respective positions unless it is agreed by all parties that the claim shall be submitted for final determination at the conclusion of that hearing. Initial hearings shall be set at the discretion of the Board of Review with due regard to the scheduling of all occupational pneumoconiosis claims in litigation, particularly the amount of docket time available before the Occupational Pneumoconiosis Board. The setting of such hearings is discretionary and not a matter of right of any party.

11.3.3. Final hearing. A final hearing shall be scheduled after the expiration of the time frame. However, a final hearing will be scheduled only when new evidence has been submitted to the Board of Review or when a party has timely requested a final hearing to examine or cross-examine the members of the Occupational Pneumoconiosis Board.

11.3.4. Extensions at hearing. Extension of time frames may be granted by the Board of Review at hearings before the Occupational Pneumoconiosis Board for good cause or if the requesting party can show that they have made a request in a timely manner prior to the expiration of their time frame and that the Board of Review has not yet acted upon this request.

11.3.5. Hearing when responding party is unrepresented. In any case in which a non-protesting party (hereinafter referred to as the responding party) is unrepresented, when new evidence has been introduced before the Board of Review by the protesting party, or a request for hearing has been made, an order may be issued at the end of the protesting party's time frame requiring the responding party and the Offices of the Insurance Commissioner, if a party, to show cause why the claim should not be set for hearing after which the claim shall be submitted for final determination. If no response is received or no good cause is shown by the responding party or the Offices of the Insurance Commissioner (if it is a party) within fifteen (15) days of the mailing of such order, the claim shall be set for hearing before the Occupational Pneumoconiosis Board.

11.3.6. Failure to prosecute. In protests in which no new evidence has been introduced before the Board of Review by the protesting party, or a request for hearing has not been made, the provisions of the section on "Failure To Prosecute Protest" shall apply.

11.3.7. Scheduling of hearing. In protests in which evidence has been introduced by either a protesting or responding party, a hearing shall be scheduled before the Occupational Pneumoconiosis Board after the expiration of the responding party's time frame unless the parties agree that a hearing may be set earlier.

11.4. Review of claim files by the Occupational Pneumoconiosis Board prior to the final hearing In protests set before the Occupational Pneumoconiosis Board pursuant to W. Va. Code § 23-4-8c(d), it may be necessary for the Occupational Pneumoconiosis Board to review the records of some claims prior to the hearing. This may be due to the complexity of medical issues, the volume of medical evidence, or other appropriate reasons. Claims may be subject to such review as follows:

11.4.1. Upon the request of the Occupational Pneumoconiosis Board or the majority of its members who examined the claimant in the protest in question;

11.4.2. Upon the ruling of the Board of Review;

11.4.3. Upon the motion of any party in the protest in question, such motion being subject to the following conditions:

11.4.3.a. The moving party must state with specificity why such review is necessary, including but not limited to a list of evidence relied upon by both parties; and

11.4.3.b. The moving party must certify that the introduction of all evidence by all parties is complete, that the evidence has been served upon all the parties and that the parties will submit the protest for final determination at the conclusion of the hearing for which prior Occupational Pneumoconiosis Board review is requested. The Board of Review will give consideration to circumstances arising at the hearings which could not have been reasonably foreseen by the parties, and if in the judgment of the Board of Review, an additional hearing is necessary, the protest shall be set for an additional hearing.

11.4.3.c. Failure to satisfy these conditions shall result in the denial of the request for the Occupational Pneumoconiosis Board to review the record prior to the hearing.

11.4.3.d. If a motion for such review prior to a hearing is granted by the Board of Review, the Board of Review may, in its discretion, order the parties to identify the record to be reviewed by the Occupational Pneumoconiosis Board.

11.4.3.e. Any ruling by the Board of Review regarding the granting or denying of a request for Occupational Pneumoconiosis Board review of a claim prior to a hearing shall be considered interlocutory and may be appealed only in conjunction with a decision entered in the instant protest.

Notes

W. Va. Code R. § 102-1-11