W. Va. Code R. § 93-1-10
The Workers' Compensation Office of Judges is provided with limited resources with which to resolve many thousands of protests filed each year. Frequently the protesting party fails to submit any evidence, offer any testimony, or provide any argument explaining the basis for the protest.
This section does not imply, or create, a presumption that the ruling of the claim administrator is correct. In fact, the Office of Judges recognizes that there may occur occasion when claim administration decision is incorrect on its face. Such an occasion should not require the party to submit new evidence or testimony in order to prevail. However, the protesting party should offer explanation as to why the ruling is believed to be incorrect.
The Office of Judges might reasonably expect the protesting party to formally withdraw its protest when no longer interested in pursuing the protest, but the history of protest litigation reveals that, in many cases, for many different reasons, the party will not always do so. An inefficient protest resolution process is created when the Office of Judges must guess why a party protested or if the party still intends to pursue the protest. The Office of Judges' must divert resources from processing contested issues in order to process the non-contested issues. Expenses are unnecessarily incurred by the non-protesting parties in defending the protested decision. If the protesting party does not submit evidence, testimony, or reason for the protest, then the resources required for resolving a protest, which the party may no longer be interested in pursuing, would better be utilized in resolving actually disputed claims.
Accordingly, this section allows for an efficient resolution of such protests where the party does not proceed, does not explain the basis for the protest, and does not withdraw the protest.
The party protesting a decision of the claim administrator, has the burden of presenting evidence or argument in support of its position. Evidence or argument must be filed before the expiration of the protesting party's time frame. Unless the protesting party timely files evidence or argument, the claim administrator's decision will be affirmed.
The requirement of this section may be met by the filing, or receipt, during the party's Time Frame, of any of the following:
The requirement of this section shall not be met by a party merely supplying the Office of Judges with a copy of any information already submitted to the claim administrator, or with a copy of any order of the claim administrator. The intent of the requirement is to compel the protesting party to submit new information or, in the alternative, an explanation of the basis for the protest.
The Office of Judges will review each matter at the conclusion of the protesting party's time frame to determine whether the protesting party has submitted evidence or argument in lieu of evidence. If it appears from a review of the matter that the protesting party has not filed any evidence or argument, the Office of Judges shall issue a Show Cause Order to the protesting party for the purpose of allowing the protesting party to demonstrate that some evidence or argument had been timely filed.
If the protesting party fails to show that evidence or argument has been timely filed, or if there is no response to the Show Cause Order, the Office of Judges shall issue a decision affirming the claims administrator's order. Such decision issued pursuant to this rule may be appealed to the Workers' Compensation Board of Review.
W. Va. Code R. § 93-1-10