W. Va. Code R. § 93-1-8
Except for the expedited issues identified in W. Va. Code § 23-4-1c(a)(3) and section 9 [93-1-9 et seq.] of this rule, any party to a protest shall, upon timely request, have a right to a hearing concerning any issue of fact or law upon which the claim administrator has made a decision within the meaning of W. Va. Code § 23-5-1(b), and upon the timely filing of a protest.
A hearing, if not automatically scheduled by the Office of Judges pursuant to this Rule, shall be specifically requested by a party at least thirty (30) days prior to the expiration of the requesting party's Time Frame. If requested less than thirty (30) days before the expiration of the Time Frame, the party requesting the hearing shall state good cause for the untimeliness of the request. It is not the intent of this subsection to prohibit cross-examination or rebuttal evidence.
Upon a timely request for a hearing, the Office of Judges shall determine the date, time and place such hearing will be conducted. A hearing may be continued by the Office of Judges only for administrative necessity or good cause shown pursuant to subsection 8.7 [93-1-8.7] of this rule. Hearings may be conducted at such places as determined by the Office of Judges, giving due regard to the convenience of the witnesses. The Chief Administrative Law Judge, or his/her designee, may, at his/her discretion, conduct any hearing by telephone conference call. The parties and counsel of record shall be notified of the date, time, and place of a hearing at least ten (10) days in advance of the hearing date. For good cause or upon waiver of notice by the parties, less than ten days may be adequate notice.
All testimony shall be taken under oath or affirmation.
All parties shall be given reasonable latitude in cross-examining witnesses. Cross-examination must take place in any time period set forth in a Time Frame Order.
An Administrative Law Judge or Hearing Examiner shall rule upon all objections to the evidence or testimony presented at the hearing or offered by deposition, taking into consideration the apparent reliability of evidence, and the basis of knowledge of a witness. All objections shall be noted in the transcript of the hearing or deposition. Exceptions to a ruling on such objections shall be automatic. Oral argument and citation of authority by the parties in support of, or opposition to, objections may be required. In the event of adverse rulings the record may be preserved for appeal by written proffer or, at the discretion of the Administrative Law Judge or Hearing Examiner, by an oral vouching of the record.
All testimony, argument and rulings shall be recorded by stenographic or voice recording or by other means and shall be transcribed.
Pursuant to W. Va. Code § 23-1-4(b), it is the policy of the Office of Judges that hearings will not be open to the general public. Only parties and their counsel, witnesses, family of the claimant, and agents or representatives of the employer or the Offices of the Insurance Commissioner may be present at the hearing. The Office of Judges may further restrict a hearing in the following manner:
Generally, a witness may appear at a hearing with, or without, a subpoena. The service of a subpoena is the responsibility of the party who desires the presence of the witness. However, when a party desires to cross-examine an expert witness who has authored a report, then arranging for the presence of that expert witness is the responsibility of the party who has offered the report.
The presence of a witness or production of evidence may be obtained by the issuance of a subpoena or subpoena duces tecum through a party's counsel as a member of the Bar and an officer of the Court. The subpoena or subpoena duces tecum shall bear a facsimile of the signature of the Chief Administrative Law Judge but must bear the actual signature of counsel. Blank forms shall be developed for this purpose which may be reproduced by counsel as needed. A party not required to be represented by counsel may request, in writing, that the Office of Judges issue a subpoena. A subpoena for a physician or other medical provider shall also include a subpoena duces tecum for the treatment records and notes pertaining to the claimant. Service of any subpoena shall be the responsibility of the party who has requested the subpoena. The Office of Judges or a party may seek judicial enforcement of such subpoena.
It is not necessary for the Office of Judges to issue an Order to Compel when a subpoena has been properly served. At the request of the party who had the subpoena served, and upon allegation of service as defined in subsection 8.4(B) [93-1-8.4(B)], the Office of Judges will issue an Order to Show Cause to a non-appearing party. Said Order to Show Cause will notify the non-appearing party of the possible sanctions for failure to explain his or her non-appearance.
It shall be the responsibility of the party requesting the issuance of a subpoena to serve the subpoena on a witness by personal service, certified mail, or by regular mail, with a certificate of service executed by counsel. The subpoena shall be served at least seven (7) days before the hearing. A copy of the subpoena shall be provided counsel of the other parties (or the party if not represented by counsel) at the time of service.
Each party is entitled to compel the attendance at a hearing of any witness whose testimony may be relevant and material, except a party is not entitled to the presence of a witness who is deemed unavailable. A witness shall be deemed unavailable in, but not limited to, the following situations:
Upon failure or refusal, without good cause, of a witness to comply with a properly served subpoena, the Chief Administrative Law Judge or his/her designee may employ proper sanctions including, but not limited to:
Prior to imposition of one or more of the aforementioned sanctions, a written notice may be issued allowing fifteen (15) days to show good cause to the Office of Judges why such sanctions should not be imposed.
Upon the failure or refusal of a properly subpoenaed witness to appear, produce requested evidence or testify in response to a subpoena, the Chief Administrative Law Judge or his/her designee may exclude any statement, record or report rendered by that witness from the record to be considered.
Except for expert witnesses as provided for in the next subsection [93-1-8.4(F)(2)], and except for the particular provisions relating to a claimant's lost wages as provided for in W. Va. Code, § 23-5-1(c), the party requesting to cross-examine a witness shall pay the attendance fees and mileage as provided for witnesses in civil cases in circuit court. Such fees shall be paid in advance upon a timely request by the witness. When a witness appears at the request of the Offices of the Insurance Commissioner or any other state agency, such advance payment shall not be required.
The party who requests to cross-examine an expert witness shall be responsible for payment of the appearance fee of such witness, subject to the limitations of the next subsection [93-1-8.4(F)(3)]. However, pursuant to 85 CSR 1, sections 16.1 and 16.2, the Offices of the Insurance Commissioner, self-insured employer, or private carrier, shall be responsible for payment of a witness fee when the witness is:
The amount of expert witness fees shall be as agreed by the parties based upon the usual and customary rate for the profession involved. The financial obligation of the requesting party shall not exceed one hundred dollars ($100) per each quarter-hour of testimony and preparation. In addition to the time of actual testimony at hearings or depositions, the requesting party is also financially obligated for a maximum of two quarter-hours for actual time reviewing records prior to the testimony. Any amount of expert fees in excess of the limitations set forth in this section shall be the financial obligation of the party who submitted the expert's report.
The witness may require advance payment not to exceed the reasonably anticipated length of the testimony and records review; Provided, that a witness may not require advance payment from the Offices of the Insurance Commissioner, or any other state agency.
A request for hearing may not be used to submit written or physical evidence after the expiration of a party's Time Frame. Evidence, which would have been untimely under the original Time Frame Order, may not be submitted at a hearing conducted during an extension of the Time Frame when said extension was granted solely for purposes of conducting a hearing. However, evidence first discovered at such hearing may be the basis for good cause for an untimely request for extension of the time frame. Furthermore, evidence that serves to rebut the testimony given at the hearing may also be introduced at the hearing.
The Office of Judges may schedule a hearing on any issue in litigation to require closing argument by the parties. The purpose of this hearing may include, but not necessarily be limited to, a determination of the issues to be decided in the written decision, identification of the evidence relied upon by the parties, and a summation by each party as to why this evidence supports their position. A request by a party for such hearing may be granted upon a showing of good cause. Failure to attend and/or participate in this hearing may result in the following:
Postponement or rescheduling of hearings, known as "continuances", shall be granted only at the request of a party and only for good cause shown, except that the Office of Judges may, for appropriate administrative purposes, continue a hearing without a request by a party. After a date for a hearing has been set, any party who desires a continuance shall file a written motion with the Office of Judges, with copies to the other parties, stating in detail the reasons why such a continuance is necessary. If the motion is based on a conflict in schedule, such motion shall set forth in detail the specific nature of the conflict. Such written motion shall be filed no later that ten (10) days prior to the date of the scheduled hearing, unless by agreement of the parties or upon good cause shown, a shorter period is permitted, and shall be served on all parties at that time. Continuances of hearings in the expedited adjudication process are governed by section 9.6 [93-1-9.6].
All parties to a claim are entitled to be present at a hearing; however, the absence of a party shall not prevent the taking of evidence and the final determination of the issues in litigation. A party shall be considered to have waived the right to be present if:
W. Va. Code R. § 93-1-8