W. Va. Code R. § 85-23-10

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

Section 85-23-10 - Administrative Protests and Hearings

10.1. Protest. An employer may protest any order, decision, designation or redesignation made under the provisions of this rule.

10.2. Petition. In order to preserve its right to protest, the employer must file a written petition with the commission, stating the order or decision protested and the exact nature of the issue in controversy. In the written petition, the employer must designate a person or entity to receive official notices related to the protest and the employer must provide the address of the person or entity. The written petition must be received by the commission within thirty (30) days after the employer receives notice of the objectionable order or decision or within sixty (60) days of the date of the objectionable order or decision, regardless of notice. This period may not be extended or waived.

10.3. Acknowledgment. Within thirty (30) days after receiving the written protest, the commission shall issue a notice acknowledging the protest and providing an opportunity for hearing. Filing of a written protest temporarily stays the order or decision protested until a decision is rendered on such protest by a hearing examiner: Provided that, such temporary stay shall not exceed ninety (90) days from the date of the order or decision protested unless the employer is not provided an opportunity for hearing within that ninety (90) day period, in which case the temporary stay shall not exceed that date which the employer is provided an opportunity for hearing. The commission may grant a further stay provided that the safety of the employer's employees is not compromised.

10.4. Subsequent administrative hearing proceedings shall be in accordance with 85 C.S.R. 7 "Rules for Selected Hearings."

10.4.1. In classification and reclassification of contested matters, the hearing examiner shall consider all relevant evidence relating to the totality of the circumstances surrounding the contested issue. Relevant issues for the hearing examiner's consideration shall include, but not be limited to the following:

a. Whether the employer has been properly classified for purposes of determining the employer's experience modification factor;

b. Whether the experience modification factor is an effective method of determining the employer's mandated status;

c. Whether the employer is engaged in a unique employment category such that there is a suitable classification for purposes of determining the employer's experience modification factor;

d. Whether the employer has experienced significant changes in the number of payroll employees so as to adversely affect the employer's experience modification factor; and

e. Whether the employer has experienced a catastrophic loss or other anomalous circumstance so as to adversely affect the employer's experience modification factor.

W. Va. Code R. § 85-23-10