W. Va. Code R. § 93-1-19
Pursuant to W. Va. Code § 23-2C-21(c), if the denial of compensability, initial award of TTD, or medical authorization is determined by the Office of Judges to be unreasonable, then reasonable attorney fees and expenses will be paid to the claimant by the private carrier, or self-insured employer, which issued the unreasonable denial. The Offices of the Insurance Commissioner, and its third party administrators, are not specifically included in the statute and are, therefore, not subject to this process.
For purposes of this section, "denial of initial award of TTD" shall mean the instance where the claim is ruled compensable on a "medical only" or "no-lost-time" basis and the private carrier or self-insured employer unreasonably fails to make an initial award of temporary total disability benefits. The denial of an "initial award of TTD" does not mean the denial of any extension or reopening of TTD.
At the conclusion of all litigation and appeals, if the initial denial of the claim, initial award of TTD, or medical authorization, has been reversed, the claimant may then submit to the Office of Judges an allegation that the denial was unreasonable under the definition provided by 23-2C-21(c).
The process is initiated upon receipt by the Office of Judges of the claimant's allegation, in writing, with a copy to the employer. Notice of the allegation must be filed with the Office of Judges within ninety (90) days of the final decision of final appeal outcome.
The Office of Judges will issue a Time Frame Order setting forth the time limits for the filing of evidence and argument by either party in support of, or opposition to, the allegation.
In as much as the statute requires a determination of the unreasonableness of the carrier's action at the time of the denial, evidence introduced by the claimant after the denial, in support of the protest to the denial, is not relevant and will not be considered on the issue of unreasonableness.
A denial shall be unreasonable if the denial by the private carrier or self-insured employer is without a legal or factual basis. The legal basis for a denial may be based upon any of the following:
The mere fact that an initial denial decision is eventually reversed or overturned upon appeal does not prove or imply that the denial decision was unreasonable.
Following the expiration of the Time Frame, the Office of Judges will issue a decision determining whether the denial meets the statutory definition of "unreasonable". The decision shall be subject to appeal to the Workers' Compensation Board of Review. If the Office of Judges concludes that the denial was unreasonable, then the private carrier or self-insured employer will be ordered to pay reasonable attorney fees and costs.
The claimant shall submit a petition to the private carrier, or self-insured employer, who will determine the reasonableness of the attorney fees and costs according to applicable rule. Disputes over the amount approved may be protested to the Office of Judges as provided for by article five of chapter twenty-three.
W. Va. Code R. § 93-1-19