If your West Virginia workers’ compensation claim is denied or if you disagree with the benefits you are awarded, you have the right to file an appeal. In West Virginia, a workers' comp appeal is called a “protest.” (For information on filing for benefits, see our article on eligibility and filing for West Virginia workers' comp.)
This appeal, or protest, must be filed with the West Virginia Workers’ Compensation Office of Judges, which is part of the Office of the Insurance Commissioner. If you disagree with the decision of the Office of Judges, you can then file an appeal (protest) with the Workers’ Compensation Board of Review, which is also part of the Office of the Insurance Commissioner.
You will be able to submit evidence and arguments to the Office of Judges and then an Administrative Law Judge (ALJ) will issue a decision on your appeal. If you later appeal to the Board of Review, you will normally not be able to submit any new evidence. So it is important to submit any evidence you have at the first level of appeal.
To file a protest, write a letter to the Office of Judges within 60 days of receiving the order you disagree with and mail it to:
Office of Judges
P.O. Box 2233
Charleston, WV 25328
Make sure the letter includes your name, your claim number, the date you got hurt or became sick, the date of the order you are protesting, and why you want to protest the order. It also helps to describe the reason you are protesting the order, such as, "I disagree with the percentage awarded."
Send copies of the letter to your employer and the claim administrator at the insurance company.
Even if you are going to ask for a hearing, do not do so in your original letter of protest. Instead, submit a separate letter to request a hearing.
Call the Office of Judges at (304) 558-0852 or (304) 558-1686 if you have any questions.
If you want a hearing, you ordinarily must request it at least 30 days before the Time Frame ends. Your employer also has the right to request a hearing. (But when an employer is self-insured, a hearing is automatically scheduled.)
You may be subpoenaed to appear at a hearing to answer questions about your injury or illness. Before you appear, your employer has the right to ask you to see a doctor of its choosing to be evaluated, as well as to submit written questions to you (called “interrogatories”) that you will be required to respond to.
In an appeal, you can represent yourself or have an attorney. However, a family member or friend cannot represent you.
After you file you will receive a document called “Acknowledgement of Protest and Automatic Time Frame Order.” This document will tell you the deadline for submitting evidence and arguments to the Office of Judges, called a Time Frame. If you send a written notice ten days before the Time Frame ends to say you need more time, you will usually be given an extension as long as you explain why in the notice and say how much more time you need. If you don’t do this, once the Time Frame passes, any evidence you submit will not considered by the judge.
Use the document submission form to submit evidence for your protest. If you do not submit any new evidence or written arguments, normally your appeal will be automatically denied.
Any evidence you do not send to all parties concerned will not even be considered by the Office of Judges. The concerned parties are yourself, your employer, and the claims administrator at your employer’s insurance company.
After the Time Frame ends, the Office of Judges will send you a document called an “Order Submitting Protest.” This is a document that lists all the evidence the Office of Judges has received from you, your employer, and the insurance company. If you believe there is evidence you submitted that is not listed on the Order Submitting Protest, call the Office of Judges right away to let them know. You can reach them at (304)558-0852 or (304)558-1686.
Once the Order Submitting Protest has been issued then you can expect a decision to be issued within three months.
Normally, several hearings are scheduled at the same time for the convenience of the judges, since hearings frequently get cancelled. Likewise, some hearings may take just a few minutes and others may take at least an hour, so it is difficult for the Judge to give an exact time when your hearing will be held.
There are seven locations where hearings are held: Beckley, Charleston, Elkins, Fairmont, Martinsburg, Parkersburg, and Wheeling. If you are having a hearing because, for example, you would like your physician to testify on your behalf, the Office of Judges will try to hold the hearing at a convenient location for your doctor.
If you know in advance that you won’t be able to make the scheduled hearing date, write to the Office of Judges at the above address and ask for a "continuance." Do this as soon as possible, and at least ten days before the hearing date. Explain why you can’t make it, and send a copy of your request to all the other parties as well.
If you would like the hearing to be rescheduled, you must specifically request this.
If you are not successful in your protest before the Office of Judges, you may appeal the decision to the Workers’ Compensation Board of Review. Once you receive the decision from the Administrative Law Judge at the Office of Judges, you have 30 days to file an appeal to the Workers' Compensation Board of Review. Complete a Notice of Appeal and send it to:
Board of Review
P.O. Box 2628
Charleston, WV 25329
If you are unhappy with the decision of the Board of Review, you have the right to request that the West Virginia Supreme Court of Appeals hear your case; however the Court has the right to decline to do so, and often does.