Current through Register Vol. XLII, No. 1, January 3, 2025
Section 102-1-3 - Definitions3.1. "Board of Review" shall include Board of Review Members, Clerk, Deputy Clerks, Office of Counsel, Hearing Examiners, other staff, and any authorized representatives and designees of the Board of Review.3.2. "Board of Review's Clerk and Office of Counsel" serve as staff counsel to the Board of Review. The Clerk and Office of Counsel provide procedural assistance and information to pro se litigants. Various motions and other matters requiring rulings in claims pending before the Board of Review are presented to the Board of Review through the Clerk/Office of Counsel. Other duties of the Clerk/Office of Counsel include, but are not limited to, reviewing protests; holding status conferences in protests; providing memoranda on legal issues; making recommendations regarding claim processing, such as the expedited hearings process, mediation, settlements, adding or dismissing chargeable employers and carriers, unreasonable denials, stays, attorney fees, failure of claim administrator to timely rule, and denial of a claim based upon W. Va. Code § 21-5I-4 (classification of independent contractors and employees); and other duties as assigned by the Board of Review.3.3. "Claim administrator" shall mean the entity with legal authority to administer workers' compensation claims, make awards, and take any other administrative actions as authorized in Chapter 23 of the W. Va. Code. In some places in the code, the term "issuing entity" is used. For purposes of this Rule, "claim administrator" and "issuing entity" mean the same thing. "Claim administrator" includes the Offices of the Insurance Commissioner, any self-administering employer who has been granted self-insured status, any authorized third-party administrator, or any private insurance carrier authorized to issue workers' compensation coverage in West Virginia.3.4. "Closing argument" shall mean a written discussion of the facts and controlling law of the case. Such written summary may be submitted at any time up to ten days after the expiration of the time frame. An argument that is filed later than ten days after the expiration of the time frame may be considered at the discretion of the Board of Review.3.5. "Argument in lieu of evidence" shall mean a written statement explaining why the claim administrator's ruling is incorrect on its face. Such statement may be submitted instead of submitting evidence when the party believes that evidence is not necessary. Such statement avoids having the claim administrator's ruling automatically affirmed for failure to prosecute. Such statement must be filed during the protesting party's time frame.3.6. "Electronic filing" includes transmitting information and documents over the internet in accordance with security guidelines. Electronic filing includes a computer-based system for the storage, retrieval, and management of documents. Instructions for electronic filing will be provided when electronic filing becomes available.3.7. "Expedited hearing," as contemplated by W. Va. Code § 23-4-1c(a)(3), shall mean the final resolution of the issue. The term "hearing" is used in the sense of an opportunity for a party to request that a hearing be scheduled, an opportunity for a party to offer written evidence or argument, or both, and to have his or her cause considered by the Board of Review.3.8. "Mail sent to the parties by the Board of Review" means documents sent by United States Postal Service or by electronic means or by other methods.3.9. "Hearing Examiner" shall include the Board of Review's Clerk, Deputy Clerks, Hearing Examiners, and other Board of Review attorneys.3.10. "Party" shall mean the injured worker (claimant), claimant's dependents, the employer, and, with respect to some claims, the Offices of the Insurance Commissioner. Private carriers, insurance agents, and third-party administrators are not parties to the litigation.3.11. "Presiding Board Member" shall mean the Board Member authorized to make the final decision in the protest. In addition to having a Presiding Board Member, each protest may, in the Board's discretion, be assigned to a Mediator. The Mediator may be an attorney on the Board of Review's staff or a Board of Review Member, who is not the Presiding Board Member.3.12. "Protest" shall mean an objection to a ruling of the claim administrator. A protest shall be filed with the Board of Review in writing and a copy served on the claim administrator and all parties. The protest shall include a copy of the claim administrator's ruling to which the protest has been made. The protest shall include the claimant's mailing address and phone number. In some sections of Chapter 23 of the W. Va. Code, the term "objection" is used. For purposes of this Rule, "protest" and "objection" mean the same thing. For purposes of this Rule and the expedited hearing process set forth herein, the term "protest" also includes the filing of a written petition, motion, or statement alleging that a private carrier or self-insured employer, whichever is applicable, has failed to timely issue a ruling upon any application or motion as provided by law and as set forth in W. Va. Code § 23-4-1c(a)(3).3.13. "Record" shall mean evidence timely submitted by a party to the Board of Review, evidence taken at hearings conducted by the Board of Review, and prior rulings upon which the Board of Review took judicial notice.