Current through Register Vol. XLI, No. 24, June 14, 2024
Section 162-2-6 - Appeal of the Decision6.1. If the Board rejects the application on two (2) occasions, the Board shall notify the applicant in writing within ten (10) days from the date of rejection of the opportunity for a hearing before an independent hearing officer appointed by the Board.6.2. Upon receipt of the Board's second rejection of the applicant's disability retirement application, the applicant has ninety (90) days within which to file a written request for an administrative appeal before an independent hearing officer appointed by the Board. An applicant who fails to request a timely appeal waives any further administrative appeal rights.6.3. The Board shall not hear appeals directly, but shall appoint hearing officers who will make complete and independent reviews of the disability applications and then make recommendations to the Board. All hearing officers appointed by the Board must be attorneys licensed to practice law in the State of West Virginia.6.3.1. Within sixty (60) days of receipt of the notice from the applicant of the desire to appeal the decision, the hearing officer shall schedule a time and place to hear the appeal and give the applicant ten (10) business days written notice of the hearing.6.3.2. At the hearing, the applicant may appear pro se or may be represented by counsel or a lay representative. Counsel for the Board may also appear at any hearing held pursuant to this rule. Witnesses or written evidence may be submitted by both parties.6.3.3. The rules of evidence shall not strictly apply, and the applicant has the right to any and all relevant documents, subject to any confidentiality and disclosure limitations set forth in federal and state law, in the possession of the Consolidated Public Retirement Board.6.3.4. The hearing officer may subpoena documents and witnesses if the information is relevant and reasonable in order for the hearing officer to make a recommendation on the appeal. The interests of justice and fair play shall guide procedure before the hearing officer.6.3.5. The Board shall cause the certified court reporter to retain but not transcribe a stenographic recording of the hearing which is the official record of the hearing. Transcripts requested by the applicant prior to appeal to circuit court shall be at the applicant's expense, with the original provided to the hearing officer and a copy to the applicant. Upon appeal to a circuit court, the recording shall be transcribed at the Board's expense.6.3.6. The hearing officer shall, within sixty (60) days of receiving all documents, prepare formal findings, stating the reasons for the findings, in clear language, and noting all medical and other evidence considered.6.3.7. After proper notice, the hearing officer shall present the information at the next regular meeting of the Consolidated Public Retirement Board. The staffs on behalf of the Board, shall notify the applicant of the date, time, and place that the appeal will be acted upon by the Board.6.4. The Board, in open session, shall then make a decision based on the recommendation of the hearing officer and accept the recommendation unless there is an abuse of discretion in finding or the finding is contrary to law. The Board staff and the applicant also have the right to propose a final order.6.5. The Board's final decision shall be sent, by certified mail, to the applicant and his or her counsel.