W. Va. Code R. § 93-1-11
The order of the claim administrator determining whether the claimant has met the requirements set out in W. Va. Code § 23-4-15b shall hereinafter be referred to as non-medical order. Litigation regarding such order including any issue regarding the chargeability of an employer, must be conducted by the parties during the non-medical litigation. The issue of chargeability shall not be litigated before the Occupational Pneumoconiosis Board during litigation on permanent partial disability awards for occupational pneumoconiosis, although medical questions involving the issue of causation of the claimant's occupational pneumoconiosis may be referred to the Board. The particular provisions of W. Va. Code § 23-5-15 b which make the final non-medical decision interlocutory and only appealable in conjunction with an appeal from an ALJ decision on a protest to the O.P. Board findings contradicts later amendments, to the same section, requiring a referral of the claim to the O.P. Board prior to the conclusion of non-medical litigation. It is the Office of Judges' interpretation of this conflict that the ALJ non-medical decision can be appealed even if no protest to the O.P. Board findings is currently pending at the time of the ALJ non-medical decision. It is not necessary for an employer to protest the Board's findings solely for the purpose of preserving their non-medical appeal rights.
Referrals to the Occupational Pneumoconiosis Board during non-medical litigation shall be made at the discretion of the Chief Administrative Law Judge or his/her designee only when there is a reasonable doubt about any medical question regarding the issues determined in the non-medical Order. In making its opinion as to whether the claimant's employment with a particular employer could have caused claimant's breathing problems, the Occupational Pneumoconiosis Board shall review any other relevant medical records and such other information in the record as the Board deems relevant to the claimant's medical condition.
The procedure regarding requests for extensions of time frames and continuances of hearings for claims involving permanent partial disability awards for occupational pneumoconiosis shall be the same as in all other claims.
Upon request of any party, the Office of Judges may set an initial hearing for the sole purpose of examining the Occupational Pneumoconiosis Board members about their findings based upon their examinations of the claimant upon which the award in litigation was based. Requests for such hearings must be made no more than ninety (90) days after the beginning of the protesting party's time frame. At such initial hearing the parties shall not ask the Board to evaluate evidence introduced in support of the respective positions unless it is agreed by all parties that the claim shall be submitted for final determination at the conclusion of that hearing. Initial hearings shall be set at the discretion of the Office of Judges with due regard to the scheduling of all occupational pneumoconiosis claims in litigation, particularly the amount of docket time available before the Occupational Pneumoconiosis Board. The setting of such hearings is discretionary and not a matter of right of any party.
A final hearing shall be scheduled after the expiration of the time frame. However, a final hearing will be scheduled only when new evidence has been submitted to the Office of Judges or when a party has timely requested a final hearing to examine or cross-examine the members of the Occupational Pneumoconiosis Board.
Extension of time frames may be granted by the presiding Administrative Law Judge at hearings before the Occupational Pneumoconiosis Board for good cause or if the requesting party can show that they have made a request in a timely manner prior to the expiration of their time frame and that the Office of Judges has not yet acted upon this request.
In any case in which a non-protesting party (hereinafter referred to as the responding party) is unrepresented, when new evidence has been introduced before the Office of Judges by the protesting party, or a request for hearing has been made, an Order may be issued at the end of the protesting party's time frame requiring the responding party and the Offices of the Insurance Commissioner, if a party, to show cause why the claim should not be set for hearing after which the claim shall be submitted for final determination. If no response is received or no good cause is shown by the responding party or the Offices of the Insurance Commissioner, if a party, within fifteen (15) days of the mailing of such Order, the claim shall be set for hearing before the Occupational Pneumoconiosis Board.
In protests in which no new evidence has been introduced before the Office of Judges by the protesting party, or a request for hearing has not been made, the provisions of section 10 [93-1-10 et seq.], "Failure To Prosecute Protest", shall apply.
In protests in which evidence has been introduced by either a protesting or responding party, a hearing shall be scheduled before the Occupational Pneumoconiosis Board after the expiration of the responding party's time frame unless the parties agree that a hearing may be set earlier.
In protests set before the Occupational Pneumoconiosis Board pursuant to W. Va. Code § 23-4-8c(d), it may be necessary for the Board to review the records of some claims prior to the hearing. This may be due to the complexity of medical issues, the volume of medical evidence, or other appropriate reasons. Claims may be subject to such review as follows:
W. Va. Code R. § 93-1-11