W. Va. Code R. § 114-97-9

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 114-97-9 - Binding Nature of External Review Decision; Judicial Review of IRO Decisions

9.1. An issuer or covered person adversely affected by a final decision rendered by an IRO in accordance with this rule is entitled to judicial review thereof, but nothing in this rule shall be deemed to prevent other means of redress or relief provided by law. The Commissioner may enforce a final decision of an IRO in the same manner and to the same extent as an order issued by him or her.

9.2.Judicial Proceedings.

9.2.a. Proceedings for review of a final decision of an IRO shall be instituted by filing a petition in the circuit court of the county in West Virginia:

9.2.a.1. In which covered person resides;

9.2.a.2. If the covered person is a non-resident of West Virginia, in which he or she works;

9.2.a.3. If the covered person neither lives nor works in West Virginia, in which the employer is primarily located; or

9.2.a.4. If none of the preceding paragraphs apphes, Kanawha County.

9.2.b. The determination of venue shall be based on the covered person's or employer's circumstances at the time of the filing.

9.2.c A petition filed pursuant to this section must be filed within sixty days after the date upon which the petitioner received notice of the final decision of the IRO, and the petitioner shall send a copy of the petition by registered or certified mail to the IRO and to all other parties of record to the IRO proceedings.

9.2.d. No appeal bond shall be required to effect any such appeal.

9.2.e. The filing of the petition by an issuer shall not stay the Commissioner's enforcement of the IRO decision, but the issuer may, at any time after the filing of the petition, apply to the circuit court for a stay of such IRO decision and the court may grant a stay upon such terms as it deems proper.

9.2.f. Within fifteen days after receipt of a copy of the petition by the IRO, the IRO shall transmit to such circuit court the original or a certified copy of the entire record of the proceeding under review, including a transcript of all testimony and all papers, motions, documents, evidence and records as were before the IRO: Provided, That the record may be shortened by stipulation of all parties.

9.2.f.1 The expense of preparing and filing such record shall be deemed to be a cost of the underlying proceeding before the IRO.

9.2.f.2 Upon demand by any party, the IRO shall furnish, at the cost of the requesting party, a copy of such record.

9.3. The review conducted by the court shall be upon the record made before the IRO, except that in cases of alleged irregularities in procedure before the IRO, not shown in the record, testimony thereon maybe taken before the court.

9.4. The court may affirm the decision of the IRO or remand the case to the IRO for further proceedings; it shall reverse, vacate or modify the order or decision of the IRO if the substantial rights of the petitioner has been prejudiced because the findings, inferences, conclusions, decision or order are:

9.4.a. In violation of constitutional or statutory provisions;

9.4.b. In excess of the statutory authority of the IRO;

9.4.c. Made upon unlawful procedures;

9.4.d. Affected by other error of law;

9.4.e. Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or

9.4.f. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

9.5. A covered person may not file a subsequent request for external review involving the same adverse determination or final adverse determination for which the covered person has already received an external review decision pursuant to this rule.

W. Va. Code R. § 114-97-9