Current through Register Vol. XLI, No. 38, September 20, 2024
9.1. An issuer or
covered person adversely affected by a final decision rendered by an IRO in
accordance with this rule is entitled to judicial review thereof, but nothing in
this rule shall be deemed to prevent other means of redress or relief provided by
law. The Commissioner may enforce a final decision of an IRO in the same manner and
to the same extent as an order issued by him or her.
9.2.
Judicial Proceedings.
9.2.a. Proceedings for review of a final decision
of an IRO shall be instituted by filing a petition in the circuit court of the
county in West Virginia:
9.2.a.1. In which covered
person resides;
9.2.a.2. If the covered
person is a non-resident of West Virginia, in which he or she works;
9.2.a.3. If the covered person neither lives nor
works in West Virginia, in which the employer is primarily located; or
9.2.a.4. If none of the preceding paragraphs
apphes, Kanawha County.
9.2.b. The determination of venue shall be based
on the covered person's or employer's circumstances at the time of the
filing.
9.2.c A petition filed pursuant
to this section must be filed within sixty days after the date upon which the
petitioner received notice of the final decision of the IRO, and the petitioner
shall send a copy of the petition by registered or certified mail to the IRO and to
all other parties of record to the IRO proceedings.
9.2.d. No appeal bond shall be required to effect
any such appeal.
9.2.e. The filing of
the petition by an issuer shall not stay the Commissioner's enforcement of the IRO
decision, but the issuer may, at any time after the filing of the petition, apply to
the circuit court for a stay of such IRO decision and the court may grant a stay
upon such terms as it deems proper.
9.2.f. Within fifteen days after receipt of a copy
of the petition by the IRO, the IRO shall transmit to such circuit court the
original or a certified copy of the entire record of the proceeding under review,
including a transcript of all testimony and all papers, motions, documents, evidence
and records as were before the IRO: Provided, That the record may be shortened by
stipulation of all parties.
9.2.f.1 The expense of
preparing and filing such record shall be deemed to be a cost of the underlying
proceeding before the IRO.
9.2.f.2 Upon
demand by any party, the IRO shall furnish, at the cost of the requesting party, a
copy of such record.
9.3. The review conducted by the court shall be
upon the record made before the IRO, except that in cases of alleged irregularities
in procedure before the IRO, not shown in the record, testimony thereon maybe taken
before the court.
9.4. The court may
affirm the decision of the IRO or remand the case to the IRO for further
proceedings; it shall reverse, vacate or modify the order or decision of the IRO if
the substantial rights of the petitioner has been prejudiced because the findings,
inferences, conclusions, decision or order are:
9.4.a. In violation of constitutional or statutory
provisions;
9.4.b. In excess of the
statutory authority of the IRO;
9.4.c.
Made upon unlawful procedures;
9.4.d.
Affected by other error of law;
9.4.e.
Clearly wrong in view of the reliable, probative and substantial evidence on the
whole record; or
9.4.f. Arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise
of discretion.
9.5. A covered
person may not file a subsequent request for external review involving the same
adverse determination or final adverse determination for which the covered person
has already received an external review decision pursuant to this rule.
