WV Insurance Commissioner Provides Updated Instructions and Guidance Regarding Content of Written Decisions and Information Provided to Claimants

On May 12, 2022, the West Virginia Insurance Commissioner issued an Insurance Bulletin providing updated instructions and guidance regarding the content of written decisions and information for claimants in workers’ compensation claims in light of the termination of the Office of Judges and the new duties of the Board of Review. ?It noted that failure to follow this “guidance” may result in regulatory action and/or a monetary penalty.? The majority of the instructions are the same as prior instructions issued by the Insurance Commissioner.?The Bulletin set forth the following:

• Pursuant to W. Va. Code §23-5-la(a), regarding any issue that is ready for a decision, the private carrier or self-insured employer shall promptly send the decision to all parties, including the basis of its decision. The parties to a claim are the claimant and, if applicable, the claimant's dependents, the employer, and, with respect to claims involving the Old Fund, the Uninsured Employer's Fund, the Self-Insured Employer Guaranty Risk Pool, Self-Insured Employer Security Risk Pool, or the Coal Workers' Pneumoconiosis Fund, the Insurance Commissioner.
• W.Va. Code §23-2C-15 requires that every employer continuously post a notice upon its premises in a conspicuous place identifying its workers' compensation insurer. The notice must include the name, business address, and telephone number of the insurer and of the person to contact with questions about a claim.
• Pursuant to W. Va. Code §23-5-la(b)(l), upon making any decision or refusing to make any award, or upon making any modification or change with respect to former findings or orders, the insurance carrier or self-insured employer, whichever is applicable, shall give written notice to the applicable parties of its action. Pursuant to W. Va. Code R. §85-1-2.3, "decision" means any determination by a responsible party regarding the compensability of a claim, the award or denial of any type of benefit in a claim, or any other substantive request by a claimant in a claim. Pursuant to W. Va. Code §23-5-la and W. Va. Code R. §85- 1-7 .2, a copy of the written decision or notice must be sent to all parties to the claim. Put simply, a written decision must be issued by an insurance carrier or self-insured employer any time a final action is taken regarding a claim and the written notice must be sent to all parties, including the claimant.
• Pursuant to W. Va. Code §23-5-la(b )(1) and W.Va. Code R. §85-1-7 .2, the written decision or notice shall state the time allowed for filing an objection to the finding. The action of the insurance carrier, self-insured employer, or Insurance Commissioner is final unless an objection to the decision is properly filed within 60 days after the claimant receives such decision. Furthermore, any objection filed at the Workers' Compensation Board of Review must also be served upon the parties to the claim, as identified herein. An example of an acceptable notice provision is set forth below:

The claimant may object to this decision within 60 days from the date of receipt of this decision or notice. The claimant must send a written objection, along with a copy of this decision, to the Workers' Compensation Board of Review, P. 0. Box 2628, Charleston, WV 25329-2628, and must serve a copy of the objection upon all parties to a claim.

• In addition to providing the notice for objections, all written decisions or notices issued by insurance carriers, self-insured employers, and/or third-party claims administrators must include additional basic information:

1. All parties to a claim, including the claimant, the employer, and, if applicable, the Offices of the Insurance Commissioner.
2. The complete name of the insurance carrier, third-party claims administrator, or self-insured employer issuing the written decision or notice and the mailing address for the insurance carrier or claims administrator.
3. The Jurisdictional Claim Number or JCN.
4. The date of injury or date of last exposure.
5. The date the written decision or notice is being made or issued.
6. The specific issue being decided in the written decision or notice
7. The decision that is being made on the specific issue being decided.
8. The basis for the decision that is being made on the specific issue being decided
9. The time allowed for filing an objection to the decision.

If you have any questions regarding this announcement or general questions regarding West Virginia workers' compensation claims, please contact Patty McEnteer at [email protected].

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