W. Va. Code R. § 102-1-18 - Unreasonable Denials and Attorney Fees

18.1. Scope. Pursuant to W. Va. Code § 23-2C-21(c), if a denial of compensability, a denial of an award of temporary total disability, or a denial of an authorization for medical benefits is determined by the Board of Review to be unreasonable, then reasonable attorney fees and costs actually incurred in the process of obtaining a reversal of the denial shall be awarded to the claimant and paid by the private carrier or self-insured employer, whichever issued the unreasonable denial. The Offices of the Insurance Commissioner, and its third-party administrators, are not specifically included in the statute and are, therefore, not subject to this process.

18.2. Initiation of Process

18.2.1. If a denial of compensability, a denial of an award of temporary total disability, or a denial of an authorization for medical benefits has been reversed, the claimant may then submit to the Board of Review an allegation that the denial was unreasonable under the definition provided by W. Va. Code § 23-2C-21(c).

18.2.2. The process is initiated upon receipt by the Board of Review of the claimant's allegation, in writing, with a copy to the employer and the employer's private carrier or the employer's claim administrator, whichever is applicable. Notice of the allegation must be filed with the Board of Review within ninety (90) days of the final decision that is issued at the conclusion of all appeals regarding the claimant's protest of the specific, relevant denial.

18.3. Filing of evidence and argument. The Board of Review will issue a Time Frame Order setting forth the time limits for the filing of evidence and argument by either party in support of, or opposition to, the allegation. In as much as the statute requires a determination of the unreasonableness of the carrier's action at the time of the denial, evidence introduced by the claimant after the denial, in support of the protest to the denial, is not relevant and will not be considered on the issue of unreasonableness.

18.4. Unreasonable denial defined. A denial shall be unreasonable if the denial by the private carrier or self-insured employer is without a legal or factual basis. The legal basis for a denial may be based upon any of the following: statutes; rules of the Insurance Commissioner; case law; or in the absence of relevant West Virginia case law, recognized legal treatises on workers' compensation. The mere fact that a denial decision is eventually reversed or overturned upon appeal does not prove or imply that the denial decision was unreasonable.

18.5. Decision. Following the expiration of the time frame, the Board of Review will issue a decision determining whether the denial meets the statutory definition of "unreasonable." If the Board of Review concludes that the denial was unreasonable, then the private carrier or self-insured employer will be ordered to pay reasonable attorney fees and costs.

18.6. Fees and expenses. If the Board of Review concludes that the denial was unreasonable, then the claimant shall submit a petition for attorney fees and costs to the private carrier or self-insured employer, who will determine the reasonableness of the attorney fees and costs according to applicable rule. Disputes over the amount approved may be protested to the Board of Review as provided for by article five of Chapter 23.

Notes

W. Va. Code R. § 102-1-18