Current through Register Vol. XLII, No. 1, January 3, 2025
Section 102-1-6 - Litigation Process6.1. Filing of protests and other documents. Electronic filing of documents may be required by the Board of Review. When electronic filing is required, the Board of Review may permit a party to submit a paper document if good cause is shown.6.2. Time period for filing a protest. Any protest under this section shall be filed with the Board of Review within sixty (60) days after receipt of the notice set forth in W. Va. Code § 23-5-1a. As provided in W. Va. Code § 23-5-6a, the period within which a protest must be filed may be expanded to one hundred twenty (120) days for good cause or excusable neglect. Provided, however, that a protest filed 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), is not subject to the time periods set forth herein.6.3. Acknowledgment of filing a protest. The Board of Review shall determine if a protest is timely filed, acknowledge receipt of timely filed protests, issue Time Frame Orders in regard to the litigation of such protests, order the parties to participate in mediation, order the expedited processing of the claim, or take such other action as the Board of Review deems necessary. If a protest does not include the order (ruling) to which the protest has been made, the Board of Review shall notify the party of the deficiency and provide the party with a time period within which to correct the deficiency. If a protest does not show that a copy was served on the claim administrator and all parties, the Board of Review shall provide a copy to the claim administrator and the parties and shall inform the protesting party that copies of future submissions must be provided to the claim administrator and the parties.6.4. Time Frame Order. A Time Frame Order shall set forth the sequence in which evidence shall be presented by the parties and the time periods within which such evidence shall be presented. A Time Frame Order may include such other matters as deemed appropriate by the Board of Review. A Time Frame Order shall be interlocutory in nature and not subject to appeal. A Time Frame Order may be modified, amended or extended at the request of a party, but only for good cause shown. The Board of Review may modify or amend a Time Frame Order, without such a request, for appropriate administrative purposes. A request for modification, amendment, or extension, of the time frame must be in writing and must be made no later than ten (10) days prior to the expiration of the existing Time Frame Order. Any extension request filed later than ten (10) days prior to the expiration of the requesting party's existing Time Frame Order shall be denied unless good cause is found for the untimeliness of the request. Any request, timely or otherwise, for an extension of time must set forth the reason an extension is necessary and shall include a statement of the efforts the party has made to comply with the Time Frame Order.6.5. Closing arguments and arguments in lieu of evidence. Except for purposes of the section on "Failure to Prosecute Protest," parties may file a closing argument within ten (10) days after the expiration of the final time frame. A closing argument filed later than ten (10) days after the expiration of the final time frame may be considered at the discretion of the Board of Review. As noted in the section on "Failure to Prosecute Protest," argument submitted in lieu of evidence must be filed within the protesting party's time frame.6.6. Order of presentation of evidence. Evidence in regard to a protest shall be presented either concurrently or consecutively as set forth by Time Frame Order. The protesting party shall have the burden of going forth with evidence first in those protests with consecutive time frames. In the event that the claimant and at least one employer have protested, the parties shall proceed concurrently.6.7. Manner and receipt of notice. Any notice required by these Rules shall be deemed adequate if served upon counsel of the other parties (or upon the party if not represented by counsel) as may be permitted in Rule 5 of the West Virginia Rules of Civil Procedure or by electronic means. Receipt of notice shall be presumed seven (7) calendar days after the date of notice. If service at the last known address is returned by the United States Postal Service as undeliverable, a party shall notify the Board of Review and thereafter need not continue serving notices at that address. It is the duty of each party to notify the Board of Review and all other parties of any change of address.6.8. Further action. The Board of Review shall review the transcripts of the hearings, testimony, the evidence, and arguments, and take such action with regard to the issues as shall be appropriate. The Board of Review may order further action in a protest when it appears that a legal issue has not been sufficiently addressed, or when the record appears to have been burdened with excessive submissions or designations. Any further action so ordered shall be limited to those matters specifically referenced in the order. Such further action may include additional hearings, the requirement of the filing of briefs or closing arguments, the requirement of an explanation of the relevance and materiality of any evidence, or such other action as may promote the ends of justice and judicial economy. If the Board of Review finds that a protest relates to an application for benefits that has been mischaracterized or misclassified by the claim administrator, the Board of Review may sua sponte, or upon motion by either or both of the parties, remand the matter in litigation to the claim administrator for correction, without ruling upon the merits of the protest. The remand order may be in the form of either an interlocutory or an appealable decision, within the reasoned discretion of the Board of Review.