W. Va. Code R. § 93-1-7
Evidence submitted to the Office of Judges is generally of three types: documentary evidence (i.e., reports, affidavits, treatment records, etc.); testimony of witnesses (either obtained during Office of Judges scheduled administrative hearings or during depositions scheduled by the parties); and physical evidence (i.e., photographs, video recordings, etc.). This section of the Rule relates to the obtaining, presenting, exchanging, and identifying for the Office of Judges, of all evidence regardless of type.
The Office of Judges shall not be bound by the usual common law or statutory rules of evidence, or by formal rules of procedure, except as provided by these rules. An Administrative Law Judge or Hearing Examiner shall receive the relevant testimony and other timely evidence of the parties and witnesses, as may further be limited by subsections 8.1 and 8.5 [93-1-8.1 & 93-1-8.5] of this rule, and subject to objection by any party. Provided, that the parties shall not burden the record with cumulative, redundant, or repeated filing of similar evidence. All evidence filed must be relevant, material, credible and reliable. Evidence submitted or filed after the expiration of a time frame, and evidence which was not copied to all other parties, shall be rejected by the Office of Judges and shall not be part of the record upon which the decision is made. Untimely evidence may be accepted upon a showing of good cause.
Amendments to the W. Va. Code in 2003 and 2005 transferred to claim administrators the authority to decide claim issues. With this control over the process, claim administrators can, and should, begin the discovery process early instead of waiting until after formal litigation has commenced. The early start of discovery is particularly important when the issue appealed is required by law to be expedited.
The entitlement of all parties to due process of law requires the Office of Judges to allow for a reasonable opportunity to discover evidence relevant to the protest. However, for those issues that the Legislature has mandated the Office of Judges to provide an expedited process, in W. Va. Code § 23-4-1c(a)(3) and elsewhere, the time available for discovery must be limited. The expedited process cannot be circumvented merely by a request for discovery opportunity. All discovery and presentation of evidence must be completed during the existing time frame. An extension may only be granted as provided in the rules controlling the extension of expedited hearing Time Frames.
Pursuant to W. Va. Code § 23-4-7(b) the claimant agrees by filing an application for benefits that any physician may release certain medical information to the claimant's employer or its representative, to the Offices of the Insurance Commissioner, and to any private carrier involved in the claim. Notwithstanding this statutory language, many hospitals and other medical providers require a signed medical authorization prior to releasing medical information to anyone other than the claimant. The claimant has a duty to sign a medical authorization that is in compliance with all applicable statutes and applicable case law in order to provide the employer with relevant medical records.
The Office of Judges may issue an Order to Compel the signing of the authorization upon a showing of unjustified failure to cooperate. If a party fails to comply with an Order to Compel, the Office of Judges will issue an Order to Show Cause. Absent sufficient response, the Office of Judges may, in its discretion, impose any of the following sanctions:
The Office of Judges recognizes that the parties may, at times, need to offer rebuttal evidence. Rebuttal evidence may, and should, be filed during any Time Frame or extension. In cases where evidence is filed at or near the end of the existing Time Frame, an extension may be granted in accordance with the rules controlling the extension of Time Frames. Rebuttal may take the form of, but not be limited to, cross-examination of witness, examination of the claimant, or filing of expert reports; provided, that additional examination of the claimant may not exceed the limit on the number of examinations that may be obtained under the provisions of subsection 7.4 [93-1-7.4] of this Rule.
All filings during litigation shall be served upon counsel of the other parties (or upon the party if not represented by counsel) and upon the Office of Judges by mail or as may be permitted as in Rule 5 of the West Virginia Rules of Civil Procedure. Filing by facsimile is permitted together with other electronic means as may be approved by the Chief Administrative Law Judge.
Members of the West Virginia Bar must provide his or her Bar membership number with any correspondence, filings, motions, objections, or other documents.
The report of an expert or any other documentary evidence shall be offered in evidence by delivering the original, or an accurate copy, of such report or document to the Office of Judges with copies to all counsel of the other parties (or to the party if not represented by counsel) as soon as can reasonably be accomplished following receipt of such report or document. For purposes of these rules, the term "original" shall also include certified copies or those documents produced under seal. The parties are encouraged to use the Office of Judges' "Document Submission Form".
Items not susceptible to reproduction or copying shall be brought to the attention of all other parties or their counsel and reasonable opportunity for inspection of such items shall be permitted within a reasonable time. Any evidence that cannot be scanned into the Electronic Document Management System must be accompanied by a written description of the evidence, the party submitting it, the date submitted, and the protest to which it applies. The parties are encouraged to use the Office of Judges' "Description of Physical Evidence Form".
If a party fails to comply with the exchange of evidence requirements of these Rules, the Chief Administrative Law Judge or his/her designee may take one or more of the following actions:
The following alternatives to testimony at hearing may be received and considered, subject to objection and the right of cross-examination where appropriate:
The following alternatives may be received and considered in lieu of evidence which is unavailable:
A written stipulation, or an oral stipulation on the record, may be accepted as a substitute for evidence. A stipulation may relate to a question of fact, the contents of a document, or the expected testimony of a witness.
Before accepting a stipulation, the Chief Administrative Law Judge or his/her designee must be satisfied that:
A stipulation of fact that has been accepted is binding upon the parties to the stipulation and may not be contradicted by those parties. Any party not participating in the stipulation may challenge, contradict, or explain the contents of a stipulation of expected testimony or of a document's contents in the same way as if the witness had actually so testified or the document had been actually admitted. A stipulation is not binding on the Office of Judges.
In any litigation pending before the Office of Judges, all parties are entitled to a reasonable number of relevant medical examinations or vocational evaluations. For purposes of this section, a consultation or file review report constitutes an examination. The examination upon which the protested order is based does not count against the employer's or the claimant's limits.
A reasonable number of examinations or evaluations shall be no more than two (2) per specialty or discipline involved per protest; provided, that upon written request a party may be granted the right to further examinations or evaluations upon a showing of necessity. Such request shall set forth the reasons why such additional examination or evaluation is necessary. All other parties shall have fifteen (15) days after the date of service of said request to file a written response. Except upon motion of the Office of Judges, no hearing shall be held upon such request, and an Administrative Law Judge's Order thereon shall be interlocutory. When two or more protests have been consolidated by the Office of Judges, the examination limits shall not be cumulative. It is not the purpose of this rule to permit parties to submit more than two (2) examinations or evaluations per specialty or discipline involved when more than one protest has been consolidated by Order of the Office of Judges.
The limitations above do not overrule or replace any restrictions set forth in W. Va. Code § 23-4-6(n), or elsewhere in the Code.
The Office of Judges may issue an Order to Compel attendance at an examination upon a showing of unjustified failure to cooperate. If a party fails to comply with an Order to Compel, the Office of Judges will issue an Order to Show Cause. Absent sufficient response, the Office of Judges may, in its discretion, impose any of the following sanctions:
Reports of examination and evaluation shall be promptly exchanged among the parties or their counsel, upon request. Either party may submit such report to the Office of Judges without a hearing. When a report is offered to be made a part of the record by a party, it will be considered subject to the limitations set forth in subsection 7.4(A) [93-1-7.4(A)] of this rule.
A request to cross-examine the author of a report shall be made promptly in writing to the party offering the report.
When cross-examination of a reporting expert is properly requested, it shall be the responsibility of the party offering the report to arrange for the appearance of the witness for cross-examination. The expense of the expert witness shall be the responsibility of the party desiring to cross examine to the extent provided in subsection 8.4(F) [93-1-8.4(F)]. The failure of the witness to appear may be grounds for excluding the report offered or other sanctions deemed appropriate.
If the non-appearing witness prepared a report based upon an examination or consultation at the request of the claim administrator (often referred to as Independent Medical Exam, or I.M.E.), then the Office of Judges may issue an order compelling the Offices of the Insurance Commissioner, self-insured employer, or the employer through its carrier, whichever is applicable, to make the witness available. If the party is unable to or otherwise fails to make the witness available, the Office of Judges may order the report expunged from the claim record and order that another expert be procured to replace the non-cooperative witness.
Until amended in 2007, W. Va. Code § 23-5-9(c) provided that, subject to this Rule, the record upon which the matter shall be decided consists of evidence submitted by the parties, evidence taken at hearings, and "any documents in the claim files which relate to the subject matter of the objection". The 2007 amendments struck from the section the clause in quotations. The 2007 amendments removed from the Office of Judges all authority to supplement the record considered with documents from "claim files". Furthermore, the Offices of Judges does not have access to documents contained in the claim files of private carriers, self-insured employers, and claim administrators of the Offices of the Insurance Commissioner. Therefore, the parties have the responsibility to submit to the Office of Judges any document that they wish to have considered by the judge.
The Office of Judges may take judicial notice of any decision in the same claim by an administrative law judge, the Appeal Board or Board of Review, or the Supreme Court. The Office of Judges may not have access to Supreme Court mandates, settlement agreements, other resolutions of an issue, or claims management decisions and histories, and the parties are responsible for filing with the Office of Judges any such relevant documents. The parties should not rely upon the Office of Judges taking such judicial notice. The parties are encouraged to identify to the judge any prior decisions or rulings thought to be relevant.
For protests acknowledged before April 2, 2007, any documents already offered through the former compelled production of relevant documents process under the former version of this Rule will remain a part of the record.
The parties are strongly admonished that the Office of Judges' lack of access to claims administration decisions and claim history makes it imperative for the parties to copy and submit all relevant orders and documents. The Office of Judges no longer has access to the claim history and failure on the part of the parties to supply relevant documents may result in decisions made upon an inadequate record.
At the same time, however, the parties are encouraged to exercise caution to avoid creating a record that is overburdened with irrelevant documents. The parties do not assist the adjudicator's task of addressing relevant documents by merely copying and submitting every document in their possession. The Office of Judges may reject irrelevant documents and may require an explanation of the relevancy of any document.
The parties may identify, as part of the record to be considered in a protest, any relevant documents which have been previously submitted or designated to the Office of Judges in other protests involving the same parties.
This identifying of relevant documents may be done by notice or motion during the Time Frame and does not require the actual copying and filing of a duplicate of the document previously submitted to the Office of Judges.
W. Va. Code R. § 93-1-7