WEST VIRGINIA RECORD

CHARLESTON – Three thousand workers' compensation protests hang in the air at the West Virginia Supreme Court of Appeals while insurers around the nation wait to see where they will fall.

Free market competition in workers' compensation will begin July 1, and no one knows how the rights of employers and workers will balance.

The Justices will search for balance as they resolve cases they heard April 2.

Insurance commissioner Jane Cline keeps searching for balance, too. A week before the hearing she reversed a decision in one of the cases.

In two other cases, Barbara Allen of Cline's office told the Justices that Cline would send out a letter clarifying her rule on "administrative closure" of files.

Administrative closure places a file in dormant status, but claimants protest because they think it means they have to reopen their files to receive treatment.

Justice Larry Starcher said to the attorney for the claimants, Jane Glauser of Wheeling, "They think their cases are closed, don't they?"

Glauser said, "They do."

Starcher said, "We are getting dozens of cases like this." He said, "If they want to mark it internally as closed, they can."

For defendant Consolidation Coal, Ned George of Wheeling said his client had 600 closure orders since adoption of the rule in 2005.

Justice Joseph Albright said, "Five hundred of them are on my desk."

George said only 18 had been reopened.

Starcher asked if he had any idea how many didn't ask to reopen because they thought they had no access.

Albright said about 3,000 workers' compensation cases were pending before the Court.

George asked if the insurance commissioner had the ability to lay a file dormant.

Starcher said, "They ought to do it internally without putting a flag out."

George asked for "a bright line for all of us to follow."

In Glauser's companion case, Starcher asked if the worker suffered harm.

Glauser said treatments were denied in 2004.

"We can't go back to 2004 and treat him," Starcher said. "We can't give him medical care in yesteryear."

Glauser said the Court could pay for it. Starcher said he doubted they could.

Glauser asked the Court to remand and reverse the billing.

"You are asking us to remand for the unraveling of a bookkeeping nightmare," Starcher said.

Justice Joseph Albright said, "Sometimes we are better off trying to prevent future nightmares."

For Cline, Allen said the rule was practical if not artful. She said the rates of claim administrators depend partly on whether cases are active.

"The insurance commissioner, as we speak, is working on short and long term solutions," she said. "She concedes that the rule is subject to misinterpretation and has been misinterpreted."

She said there are 40,000 active cases with many issues in each case.

Criminal cases end in plea agreements and civil cases end in settlement agreements, she said, but workers' compensation claims don't end in agreements.

In another case, the Justices learned that claimant Llewellyn Wilkinson had already succeeded in a protest against the Putnam County Board of Education.

She claims depression on account of a foot injury she suffered in a school cafeteria.

Her attorney, Patrick Jacobs of Charleston, sought to capitalize on his success by asking the Court to adopt a hierarchy for medical treatment decisions.

Jacobs argued that an opinion from a doctor who performs a single examination should carry less weight than an opinion from a treating physician.

Justice Brent Benjamin said he practiced in workers' compensation and there should be quick and independent review of psychiatric and mental claims.

"It takes forever for some of these claims to litigate," he said.

Allen said, "We will make the system faster and fairer for everybody."

The West Virginia Legislature abolished the Workers' Compensation Commission in 2004, and created a 30 month transition from public to private insurance.

The transition has almost ended. During it a single private company, BrickStreet, holds a monopoly on workers' compensation.

Starting July 1, any insurer can compete against BrickStreet.