Current through Register Vol. XLII, No. 1, January 3, 2025
Section 102-1-7 - Evidence: Exchange and Filing7.1. Evidence submitted to the Board of Review is generally of three types: documentary evidence (i.e., reports, affidavits, treatment records, etc.); testimony of witnesses (either obtained during Board of Review scheduled hearings or during depositions scheduled by the parties); and physical evidence (i.e., photographs, video recordings, etc.). This section of the Rule relates to obtaining evidence, presenting evidence, exchanging evidence, and identifying evidence for the Board of Review.7.2. Rules of evidence. The Board of Review shall not be bound by the usual common law or statutory rules of evidence, or by formal rules of procedure, except as provided by these Rules. The Board of Review shall receive the relevant testimony and other timely evidence of the parties and witnesses, as may further be limited in this Rule, and subject to objection by any party. The parties shall not burden the record with cumulative, redundant, or repeated filing of similar evidence. All evidence filed must be relevant, material, credible and reliable. Evidence submitted or filed after the expiration of a time frame may be accepted upon a showing of good cause. Evidence which was not copied to all other parties may be rejected by the Board of Review.7.3. Discovery7.3.1. Claim administrators should begin the discovery process early instead of waiting until after formal litigation has commenced. The early start of discovery is particularly important when the issue appealed is required by law to be expedited. The entitlement of all parties to due process of law requires the Board of Review to allow for a reasonable opportunity to discover evidence relevant to the protest. However, for those issues that the Legislature has mandated the Board of Review to provide an expedited process, in W. Va. Code § 23-4-1c(a)(3) and elsewhere, the time available for discovery should be limited. All discovery and presentation of evidence must be completed during the existing time frame.7.3.2. Claim administrators shall provide a complete copy of the clam file to a party requesting the file within thirty (30) days of receipt of any such request. The claim administrator may require that any request for a file copy include a subpoena duces tecum or fully executed authorization from the claimant to release the material. The claim file shall include copies of all applications for benefits, all medical documents received in relation to the claim file, all orders and notices issued by the claim administrator, and all documents, records, or other materials upon which claim decisions were based. If the party's efforts to obtain the claim file from the claim administrator are unsuccessful, the party may submit to the Board of Review a motion to require the claim administrator to provide the claim file.7.3.3. Interrogatories 7.3.3.a. Written interrogatories may be utilized in the discovery process.7.3.3.b. Each party shall be limited to a maximum of thirty (30) written interrogatories, with each part or subpart of a numbered interrogatory being construed as a separate interrogatory.7.3.3.c. Each interrogatory shall consist of a single question and shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The party upon whom the interrogatories have been served shall serve a copy of the answers within thirty (30) days after service of the interrogatories. A shorter or longer period of time for answering or objecting to an interrogatory may be allowed for good cause shown. If the party issuing interrogatories does not comply with the provisions and limitations of this Rule, then the responding party need not respond to any part or subpart of the proffered interrogatories. Issues regarding interrogatories not resolved between the parties may be dealt with by motion to the Board of Review.7.3.3.d. The Board of Review may issue an order to compel completion of interrogatories upon a showing of unjustified failure to cooperate. If a party fails to comply with an order to compel, the Board of Review may issue an order to show cause. Absent sufficient response, the Board of Review may, in its discretion, impose any of the following sanctions: decide the issue against the non-cooperating party, issue an order dismissing the protest of the non-cooperating party, and take other actions as justified.7.4. Medical authorization. 7.4.1. Pursuant to W. Va. Code § 23-4-7(b), the claimant agrees by filing an application for benefits that any physician may release certain medical information to the claimant's employer or its representative, to the Offices of the Insurance Commissioner, and to any private carrier involved in the claim. Notwithstanding this statutory language, many hospitals and other medical providers require a signed medical authorization prior to releasing medical information to anyone other than the claimant. The claimant has a duty to sign a medical authorization that is in compliance with all applicable statutes and applicable case law in order to provide the employer with relevant medical records.7.4.2. The Board of Review may issue an order to compel the signing of the authorization upon a showing of unjustified failure to cooperate. If a party fails to comply with an order to compel, the Board of Review may issue an order to show cause. Absent sufficient response, the Board of Review may, in its discretion, impose any of the following sanctions: decide the issue against the non-cooperating party, issue an order dismissing the protest of the non-cooperating party, and take other actions as justified.7.5. Rebuttal evidence. The Board of Review recognizes that the parties may, at times, need to offer rebuttal evidence. Rebuttal evidence may, and should, be filed during any time frame or extension. In cases where evidence is filed at or near the end of the existing time frame, an extension may be granted in accordance with the Rules controlling the extension of time frames. Rebuttal may take the form of, but not be limited to, cross-examination of a witness, examination of the claimant, or filing of expert reports. Additional examination of the claimant may not exceed the limit on the number of examinations that may be obtained under the provisions of this Rule.7.6. Documentary evidence 7.6.1. All filings during litigation shall be 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. A member of the West Virginia Bar must provide his or her Bar membership number with any correspondence, filings, motions, objections, or other documents.7.6.2. Exchange of evidence 7.6.2.a. Documents. The report of an expert or any other documentary evidence shall be offered in evidence by delivering the original, or an accurate copy, of such report or document to the Board of Review with copies to counsel of the other parties (or to the party if not represented by counsel) as soon as can reasonably be accomplished following receipt of such report or document. For purposes of these Rules, the term "original" shall also include certified copies or documents produced under seal.7.6.2.b. Physical evidence. Items not susceptible to reproduction or copying shall be brought to the attention of all other parties or their counsel and reasonable opportunity for inspection of such items shall be permitted within a reasonable time. Any evidence that cannot be scanned into the electronic filing system must be accompanied by a written description of the evidence, the party submitting it, the date submitted, and the protest to which it applies.7.6.2.c. Failure to comply with exchange of evidence. If a party fails to comply with the exchange of evidence requirements of these Rules, the Board of Review may take one or more of the following actions: order the party to supply the material required by this section, grant a continuance to the party who was not served with a copy, prohibit a party from introducing the evidence if there is a finding that the failure to disclose was intentional or without good cause, consider the protest(s) submitted for decision upon the existing record excluding the evidence not served, and take such other action as may be necessary or appropriate for the proper conduct of a system of administrative review.7.7. Alternatives to testimony at hearing. The following alternatives to testimony at hearing may be received and considered, subject to objection and the right of cross-examination where appropriate: sworn statements or affidavits, prior testimony under oath, stipulations of fact or expected testimony, depositions, and interrogatories and responses thereto.7.8. Alternatives to other evidence. The following alternatives may be received and considered in lieu of evidence which is unavailable: testimony describing the evidence; an authenticated copy, photograph or reproduction of the unavailable evidence; and a stipulation of fact or expected testimony concerning such unavailable evidence.7.9. Stipulations. A written stipulation, or an oral stipulation on the record, may be accepted as a substitute for evidence. A stipulation may relate to a question of fact, the contents of a document, or the expected testimony of a witness.7.9.1. Requirements. Before accepting a stipulation, the Board of Review must be satisfied that the stipulation is relevant to an issue in litigation; the stipulation is written or stated in clear and unambiguous terms; a factual basis exists for the stipulation, which shall be thoroughly set forth upon the record or in the preamble section of a written stipulation; and all parties to the stipulation shall indicate in writing, or orally on the record, that they understand and agree to the stipulation.7.9.2. Effect of stipulation. A stipulation of fact that has been accepted is binding upon the parties to the stipulation and may not be contradicted by those parties. Any party not participating in the stipulation may challenge, contradict, or explain the contents of a stipulation of expected testimony or of a document's contents in the same way as if the witness had actually so testified or the document had been actually admitted. A stipulation is not binding on the Board of Review.7.10. Examinations and evaluations. In any litigation pending before the Board of Review, all parties are entitled to a reasonable number of relevant medical examinations or vocational evaluations. For purposes of this section, a consultation or file review report constitutes an examination. The examination upon which the protested order is based does not count against the employer's or the claimant's limits.7.10.1. A reasonable number of examinations or evaluations shall be no more than two (2) per specialty or discipline involved per protest. Upon written request, a party may be granted the right to further examinations or evaluations upon a showing of necessity. Such request shall set forth the reasons why such additional examination or evaluation is necessary. All other parties shall have fifteen (15) days after the date of service of said request to file a written response. The Board of Review's order thereon shall be interlocutory. When two or more protests have been consolidated by the Board of Review, the examination limits shall not be cumulative. It is not the purpose of this Rule to permit parties to submit more than two (2) examinations or evaluations per specialty or discipline involved when more than one protest has been consolidated by order of the Board of Review. These limitations do not overrule or replace any restrictions set forth in W. Va. Code § 23-4-6(n), or elsewhere in the Code.7.10.2. The Board of Review may issue an order to compel attendance at an examination upon a showing of unjustified failure to cooperate. If a party fails to comply with an order to compel, the Board of Review may issue an order to show cause. Absent sufficient response, the Board of Review may, in its discretion, impose any of the following sanctions: decide the issue against the non-cooperating party, issue an order dismissing the protest of the non-cooperating party, and take other actions as justified.7.10.3. Reports of examination and evaluation shall be promptly exchanged among the parties or their counsel, upon request. Either party may submit such report to the Board of Review. When a report is offered to be made a part of the record by a party, it will be considered subject to the limitations on the number of medical examinations or vocational evaluations set forth in this Rule.7.10.4. Requests for cross-examination of the author of a report shall be made promptly in writing to the party offering the report. When cross-examination of a reporting expert is properly requested, it shall be the responsibility of the party offering the report to arrange for the appearance of the witness for cross-examination. The expense of the expert witness shall be the responsibility of the party desiring to cross examine to the extent provided in this Rule. The failure of the witness to appear may be grounds for excluding the report offered or other sanctions deemed appropriate. If the non-appearing witness prepared a report based upon an examination or consultation at the request of the claim administrator (often referred to as Independent Medical Examination or IME), then the Board of Review may issue an order compelling the Offices of the Insurance Commissioner, self-insured employer, or the employer through its carrier, whichever is applicable, to make the witness available. If the party is unable to or otherwise fails to make the witness available, the Board of Review may order the report expunged from the claim record and order that another expert be procured to replace the non-cooperative witness.7.11. Identification of relevant documents from claim files. The Board of Review does not have access to documents contained in the claim files of private carriers, self-insured employers, third-party administrators, and claim administrators of the Offices of the Insurance Commissioner.7.11.1. Prior rulings. The parties are required to submit to the Board of Review all orders related to the compensable conditions in the claim. If the claim administrator has not issued orders related to the compensable conditions in the claim, the parties shall submit any other documents that reflect the diagnoses identified as compensable in the claim.7.11.2. The Board of Review may take judicial notice of any decision in the same claim. The Board of Review may not have access to Supreme Court mandates, settlement agreements, other resolutions of an issue, or claim administrator rulings, and the parties are responsible for filing with the Board of Review any such relevant documents. The parties are encouraged to identify to the Board of Review any prior decisions or rulings thought to be relevant.7.11.3. Documents filed in prior protests. The parties may identify in writing, as part of the record to be considered in a protest, any relevant documents that were previously submitted or designated in other protests in the same claim.