W. Va. Code R. § 102-1-19

Current through Register Vol. XLII, No. 1, January 3, 2025

Section 102-1-19 - Disputes Between Claim Administrators: Reopening Versus New Injury Issues

19.1. Scope. W. Va. Code § 23-5-1a(b)(2)(A) provides that the Board of Review resolves disputes between claim administrators, without prejudicing the right of the injured worker to immediate workers' compensation benefits, in claim filings in which the claim is otherwise compensable but the only matter of dispute is whether the claim should have been filed as a new injury application or an application to reopen an old claim.

19.2. Initiation of process. When a claim administrator determines to deny a request for benefits and the only basis for denial of benefits is the determination that the application was improperly filed as a new claim or a reopening of an old claim, the claim administrator shall issue a decision denying benefits and providing the right of the claimant to object. If the claimant files a timely protest, then the following subsections apply. The Board of Review shall acknowledge the protest and enter a time frame as provided for in any other type of protest.

19.3. Administration of claim and conditional payment of benefits. Upon receipt of notice of the filing of a protest to the denial of the claim, the claim administrator shall begin conditional payment of benefits within fifteen (15) working days. Conditional payment of benefits shall continue until affected by subsequent order or decision of the Board of Review.

19.4. Notice from claim administrator to Board of Review. After the claim administrator receives notice of the filing of a protest to the denial of the claim, the claim administrator shall promptly notify the Board of Review that another identifiable person may be liable. The burden is on the claim administrator to provide sufficient claim identifying information in order for the Board of Review to determine to change the responsible administrator.

19.5. Notice to other allegedly liable person; new claim defenses

19.5.1. Form of notice. Upon receipt of sufficient information from the claim administrator, the Board of Review will join the other potential claim administrator to the proceeding. The Board of Review will notify the alleged responsible claim administrator of the existence of the claim for benefits, of the existence of the protest, the allegation that the claim is otherwise compensable, the possibility that the claim responsibility may ultimately be assigned to the new claim administrator, the possibility that conditional payments being made may ultimately be transferred to the new administrator, and of any time limit for raising any claim defenses not raised by the initial claim administrator, or for filing evidence.

19.5.2. New claim defenses. Although the claim administrator with whom the claim was initially filed has determined that no basis exists for the denial of the claim other than that the application was filed with the wrong claim administrator, the process cannot limit the rights of the potentially responsible claim administrator to offer its own claim defenses. The Board of Review will provide a reasonable time period for the new claim administrator to investigate the circumstances of the claim and issue a notice raising any additional reasons for denying the claim. If the new claim administrator raises other reasons that the claim should have been denied, then the Board of Review shall address those issues in any final decision on the protest.

19.6. Interlocutory transfer of claim responsibility. Prior to the final resolution of the issue, the Board of Review, upon sufficient proof and after opportunity for the other claim administrator to have responded, may determine to change the responsible claim administrator. In that event, conditional payment of benefits shall be paid by the other claim administrator until the final determination.

19.7. Tolling of statute of limitations for claim filings. Pursuant to W. Va. Code § 23-5-1a(c), the Board of Review has authority to toll any statute of limitations by directing that:

19.7.1. An application for benefits be designated as a petition to reopen, effective as of the original date of filing; or

19.7.2. A petition to reopen be designated as an application for benefits, effective as of the original date of filing; or

19.7.3. An application for benefits or petition to reopen with any claim administrator be designated as either with any other claim administrator, effective as of the original date of filing.

19.8. Final resolution and monetary adjustment or reimbursement. At the conclusion of the time frame for filing of evidence and arguments, the Board of Review will issue a final resolution of the issue of claim responsibility and will address any additional claim defenses if raised by the other claim administrator joined as a party. In the final resolution, the Board of Review will direct appropriate reimbursement or monetary adjustment provided that the claim has been determined to be compensable and that a change of claim administrators has been determined. Claim liability, reimbursement, and other monetary adjustments rulings shall be complied with unless stayed by order of the Board of Review or appellate court.

W. Va. Code R. § 102-1-19