Current through Register Vol. XLII, No. 1, January 3, 2025
Section 102-1-8 - Administrative Hearings Procedures, Generally8.1. Right to administrative hearing8.1.1. The Board of Review will schedule a hearing upon receipt of a timely request and a showing of good cause to support the request.8.1.2. Except for the expedited issues identified in W. Va. Code § 23-4-1c(a)(3) and this Rule, a hearing shall be specifically requested by a party at least thirty (30) days prior to the expiration of the requesting party's time frame. If requested less than thirty (30) days before the expiration of the time frame, the party requesting the hearing shall state good cause for the untimeliness of the request. It is not the intent of this subsection to prohibit cross-examination or rebuttal evidence.8.1.3. The Board of Review prefers that testimony be obtained by deposition rather than at an administrative hearing.8.2. Date and time of administrative hearings. Upon a timely request for a hearing, the Board of Review shall determine the date and time such hearing will be conducted. Hearings shall be conducted virtually, by telephone conference call, or by other similar means. Hearings will not be conducted in person unless the Board of Review finds good cause has been established to conduct a hearing in person. The parties and counsel of record shall be notified of the date and time of the hearing and the process for participating in the hearing at least ten (10) days in advance of the hearing date. For good cause, less than ten (10) days may be adequate notice. A hearing may be continued by agreement of the parties with the consent of the Board of Review, or upon a showing of good cause, or within the discretion of the Board of Review.8.3. Administrative hearings procedure 8.3.1. Testimony. All testimony shall be taken under oath or affirmation.8.3.2. Cross-examination. All parties shall be given reasonable latitude in cross-examining witnesses. Cross-examination must take place in any time period set forth in a Time Frame Order.8.3.3. Objections. The Board of Review shall rule upon all objections to the evidence or testimony presented at the hearing or offered by deposition, taking into consideration the apparent reliability of the evidence and the basis of knowledge of a witness. All objections shall be noted in the transcript of the hearing or deposition. Exceptions to a ruling on such objections shall be automatic. Oral argument and citation of authority by the parties in support of, or opposition to, objections may be required. In the event of adverse rulings, the record may be preserved for appeal by written proffer or, at the discretion of the Board of Review, by an oral vouching of the record.8.3.4. Recording of hearing. All proceedings at a hearing shall be recorded by stenographic or voice recording or by other means.8.4. Witnesses: subpoenas and fees 8.4.1. Subpoena 8.4.1.a. Generally, a witness may appear at a hearing with or without a subpoena. The service of a subpoena is the responsibility of the party who desires the presence of the witness. However, when a party desires to cross-examine an expert witness who has authored a report, then arranging for the presence of that expert witness is the responsibility of the party who has offered the report.8.4.1.b. The presence of a witness or production of evidence may be obtained by the issuance of a subpoena or subpoena duces tecum through a party's counsel as a member of the Bar and an officer of the Court. The subpoena or subpoena duces tecum shall bear a facsimile of the signature of the Chairperson of the Board of Review but must bear the actual signature of counsel. Blank forms shall be developed for this purpose, which may be reproduced by counsel as needed. A party not required to be represented by counsel may request, in writing, that the Board of Review issue a subpoena. A subpoena for a physician or other medical provider shall also include a subpoena duces tecum for the treatment records and notes pertaining to the claimant. Service of any subpoena shall be the responsibility of the party who has requested the subpoena. The Board of Review or a party may seek judicial enforcement of such subpoena.8.4.1.c. It shall be the responsibility of the party requesting the issuance of a subpoena to serve the subpoena on a witness by personal service, certified mail, or by regular mail, with a certificate of service executed by counsel or by the party if not represented by counsel. The subpoena shall be served at least seven (7) days before the hearing. A copy of the subpoena shall be provided to counsel of the other parties (or the party if not represented by counsel) at the time of service.8.4.1.d. It is not necessary for the Board of Review to issue an order to compel when a subpoena has been properly served but not honored. At the request of the party who had the subpoena served, and upon allegation of service as described in this Rule, the Board of Review may issue an order to show cause to a non-appearing party. The order to show cause will notify the non-appearing party of the possible sanctions for failure to explain his or her non-appearance.8.4.2. Right to examine or cross-examine witnesses. Each party is entitled to compel the attendance at a hearing of any witness whose testimony may be relevant and material, except a party is not entitled to the presence of a witness who is deemed unavailable. A witness shall be deemed unavailable in, but not limited to, the following situations: the witness is not subject to compulsory process in West Virginia by reason of non-residence within, or prolonged absence from, the State of West Virginia, unless that witness is the claimant or the employer; the witness refuses for good cause to testify despite an order to do so; the witness claims by sworn affidavit a lack of memory of the subject matter; the witness is unable to be present or to testify at the hearing because of then existing physical or mental illness or infirmity; the witness is absent from the hearing and the requesting party is not at fault, could not have prevented the unavailability, and demonstrates that all reasonable measures to secure the presence of the witness have been taken, including the timely request for and service of a subpoena.8.4.3. Failure of a witness to comply. Upon failure or refusal, without good cause, of a witness to comply with a properly served subpoena, the Board of Review may employ proper sanctions including, but not limited to, a decision reversing the protested order; an order dismissing the protest; submission of the protest for final determination upon the existing record; or when personal service of a subpoena has been obtained, institution of attachment proceedings as for contempt in Circuit Court. Prior to imposition of one or more of the aforementioned sanctions, a written notice may be issued allowing fifteen (15) days to show good cause to the Board of Review why such sanctions should not be imposed.8.4.4. Exclusion of evidence. Upon the failure or refusal of a properly subpoenaed witness to appear, produce requested evidence or testify in response to a subpoena, the Board of Review may exclude any statement, record or report rendered by that witness from the record to be considered.8.4.5. Witness fees 8.4.5.a. Except for expert witnesses as provided for in this Rule, and except for the particular provisions relating to a claimant's lost wages as provided for in W. Va. Code § 23-5-1a(d), the party requesting to cross-examine a witness shall pay the attendance fees and mileage as provided for witnesses in civil cases in Circuit Court. Such fees shall be paid in advance upon a timely request by the witness. When a witness appears at the request of the Offices of the Insurance Commissioner or any other state agency, such advance payment shall not be required.8.4.5.b. Expert witness fees. The party who requests to cross-examine an expert witness shall be responsible for payment of the appearance fee of such witness, subject to the limitations in this Rule. However, pursuant to W. Va. Code of State Rules § 85-1-17.1 and 17.2, the Offices of the Insurance Commissioner, self-insured employer, or private carrier (whichever is administering the claim), shall be responsible for payment of a witness fee when the witness is an authorized treating physician, or an authorized consulting physician acting upon referral from an authorized treating physician.8.4.5.c. Expert witness fee limitations. The amount of expert witness fees shall be as agreed by the parties based upon the usual and customary rate for the profession involved. The financial obligation of the requesting party shall not exceed one hundred dollars ($100) per each quarter-hour of testimony and preparation. In addition to the time of actual testimony at hearings or depositions, the requesting party is also financially obligated for a maximum of two quarter-hours for actual time reviewing records prior to the testimony. Any amount of expert fees in excess of the limitations set forth in this section shall be the financial obligation of the party who submitted the expert's report. The witness may require advance payment not to exceed the reasonably anticipated length of the testimony and records review, but a witness may not require advance payment from the Offices of the Insurance Commissioner, or any other state agency.8.5. Limited purpose of certain hearings. A request for hearing may not be used to submit written or physical evidence after the expiration of a party's time frame. Evidence, which would have been untimely under the original Time Frame Order, may not be submitted at a hearing conducted during an extension of the time frame when said extension was granted solely for purposes of conducting a hearing. However, evidence first discovered at such hearing may be the basis for good cause for an untimely request for extension of the time frame. Furthermore, evidence that serves to rebut the testimony given at the hearing may also be introduced at the hearing.8.6. Special hearings. The Board of Review may schedule a hearing on any issue in litigation. One type of hearing the Board of Review may schedule is a hearing to require closing argument by the parties. The purpose of this hearing may include, but not necessarily be limited to, a determination of the issues to be decided in the written decision, identification of the evidence relied upon by the parties, and a summation by each party as to why this evidence supports their position. A request by a party for such hearing may be granted upon a showing of good cause. Failure to participate in a hearing that is scheduled on the Board of Review's own motion may result in the following: dismissal of protest and affirmation of claim administrator's orders, exclusion of evidence from consideration, denial of motion for reconsideration, and such other sanction as the Board of Review may deem appropriate.8.7. Continuances. Postponement or rescheduling of hearings, known as "continuances," shall be granted only by agreement of the parties with the consent of the Board of Review, or upon a showing of good cause, or within the discretion of the Board of Review. After a date for a hearing has been set, any party who desires a continuance shall file a written motion with the Board of Review, with copies to the other parties, stating in detail the reasons why such a continuance is necessary. If the motion is based on a conflict in schedule, such motion shall set forth in detail the specific nature of the conflict. Such written motion shall be filed no later than ten (10) days prior to the date of the scheduled hearing, unless by agreement of the parties or upon good cause shown, a shorter period is permitted, and shall be served on all parties at that time.8.8. Absence of parties at hearings. All parties to a claim are entitled to participate in a hearing; however, the absence of a party shall not prevent the taking of evidence and the final determination of the issues in litigation. A party shall be considered to have waived the right to be present if after being notified of the date and time of a hearing, a party does not appear, absent a showing of good cause, or after being advised that disruptive conduct will cause removal from the hearing, a party persists in conduct which is such as to justify exclusion from the hearing.