On April 9, 2021, Governor Justice signed the West Virginia Appellate Reorganization Act, which establishes an Intermediate Court of Appeals in West Virginia. The establishment of the intermediate court will have a significant impact on the legal procedures and practice of Workers’ Compensation in West Virginia. While there are no significant changes for the way claims should be handled by employers and claims adjusters, there may be some changes in terminology and the forms that are used. The legal process, once a protest is filed, will change substantially.  These changes are summarized below.

CHANGES TO LITIGATION PRACTICE AND PROCEDURE

            Today when a claimant files a protest, the protest is assigned to an Administrative Law Judge who decides the claim. Appeals of the decision of the Administrative Law Judge are filed with the Board of Review and Board of Review decisions are appealed to the West Virginia Supreme Court of Appeals.

            With the creation of the intermediate court, the Office of Judges will be phased out and the Board of Review assume responsibility for deciding protests. The Board of Review will increase from three (3) members to five (5) members. The Board of Review will have hearing examiners, who must be attorneys with at least four years of practice experience. The number of hearing examiners that the Board of Review must employ was not set forth in the legislation. Final decision must be signed by one of the Board of Review members. However, the Board of Review may delegate duties including consideration of procedural matters and motions to the hearing examiner. The hearing examiner may also make recommendations to the Board of Review regarding the final outcome of the protest. It appears as though the Board of Review will function like the Office of Judges does now.

CHANGES TO APPEALS

            With the implementation of this legislation, all appeals from the Board of Review will be heard by the Intermediate Court of Appeals.  The court will be composed of three (3) judges who will hear cases at various locations around the state. The judges will initially be appointed, but eventually will be elected to ten (10) year terms. The terms of the initial three (3) judges will expire in 2024, 2026, and 2028, respectively. Those judges will be able to run for election to the court.

            One of the most substantial changes that may be implemented is a $200.00 filing fee that the appealing party must pay to the clerk of the intermediate court upon appeal. The intermediate court will not have the discretion to accept appeals, but instead must consider all appeals, just as the Supreme Court of Appeals does now. Oral arguments before the intermediate court will be discretionary, as they are before the Supreme Court of Appeals now. Appeals of the intermediate court will be heard by the Supreme Court of Appeals on a discretionary basis.

DATE CHANGES TAKE EFFECT

            The Appellate Reorganization Act takes effect on July 1, 2021, but will not impact the day to day practice of worker’s compensation until July of 2022. As of July 1, 2022, all protests will be decided by the Board of Review. The Office of Judges will cease to exist as of October 1, 2022. The Office of Judges will continue to consider protests of any orders issued on or before June 30, 2022, until they cease to operate on October 1, 2022. At that time, any remaining undecided protests will be transferred to the Board of Review.