Rockwood Casualty Insurance Company v. Allen L. McVey, Insurance Commissioner of the State of West Virginia

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ROCKWOOD CASUALTY INSURANCE COMPANY, May 1, 2026
Petitioner Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 25-ICA-329 (Case No. 25-IC-179552)

ALLEN L. MCVEY, INSURANCE COMMISSIONER
OF THE STATE OF WEST VIRGINIA,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Rockwood Casualty Insurance Company (“Rockwood”) appeals the April
23, 2025, order of the West Virginia Office of the Insurance Commissioner. Respondent
Allen L. McVey, Insurance Commissioner of the State of West Virginia (“OIC”) filed a
response.1 Rockwood did not reply. The issue on appeal is whether the OIC erred in finding
that Rockwood failed to timely comply with the August 12, 2024, order of the Workers’
Compensation Board of Review (“Board”), and ordering Rockwood to pay a $2,000 fine.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the OIC’s order is appropriate under Rule
21 of the West Virginia Rules of Appellate Procedure.

On August 12, 2024, the Workers’ Compensation Board of Review (“Board”)
issued an order in the underlying workers’ compensation claim, which ordered Rockwood
to issue payment of fatal dependents’ benefits to the decedent claimant’s dependent(s).
Rockwood timely filed a motion for stay and that motion was refused by this Court on
September 19, 2024. Rockwood filed a “motion for reconsideration”2 of this Court’s
refusal of the stay, which was refused by this Court on October 7, 2024.

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Rockwood is represented by T. Jonathan Cook, Esq. OIC is represented by Jeffrey
C. Black, Esq., and Andrew S. Ryan, Esq.
2
We note that there is no authority indicating that a “motion for a reconsideration”
of an appellate court’s refusal of a stay is a legitimate remedy available to petitioners,
despite Rockwood’s apparent insistence to the contrary.

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Counsel for the dependent claimant in the underlying workers’ compensation claim
filed with the OIC a petition alleging that Rockwood failed to timely comply with the
Board’s decision. On February 28, 2025, the Board issued a report to the OIC finding that
Rockwood did fail to timely comply with the Board’s August 12, 2024, order in violation
of West Virginia Code of State Rules § 85-1-10.7. (2009). Based upon the Board’s report,
the OIC found that Rockwood did fail to timely comply with the Board’s August 12, 2024,
order and issued Rockwood a $2,000 fine. Rockwood now appeals that fine.

Our standard of review is as follows:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021); accord W. Va. Code § 60-7-13a(d) (2013) (specifying
that West Virginia Code § 29A-5-4 applies to appellate review of a Commissioner’s
decision).

Rockwood argues that the Board’s August 12, 2024, order granting dependent
benefits was not “final” until this Court refused the motion for reconsideration of the stay
on October 7, 2024, and the payment was issued to the claimant dependent within 15 days
of that “final ruling.” We disagree.

West Virginia Code 23-5-9a(g) (2022) provides that:

The decision of the Workers’ Compensation Board of Review regarding any
objections to a decision of the Insurance Commissioner, private carrier, or
self-insured employer, whichever is applicable, is final, and benefits shall be
paid or denied in accordance with the decision, unless an order staying the
payment of benefits is specifically entered by a court with appellate
jurisdiction over the decision . . . If the decision is subsequently appealed and

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reversed in accordance with the procedures set forth in this article, and any
overpayment of benefits occurs as a result of the reversal, the overpayment
may be recovered pursuant to the provisions of § 23-4-1c(h) or § 23-4-1d(d)
of this code, as applicable.

West Virginia Code of State Rules § 85-1-10.7. provides that:

A responsible party shall comply with all orders of the . . . Board of Review
. . . within thirty (30) days after the date of receipt, unless the responsible
party is required to act sooner under the terms of the order or mandate or the
order or mandate is subject to a lawfully ordered stay.

Here, the OIC determined that Rockwood failed to timely comply with the Board’s
August 12, 2024, order. In the Board’s report to the OIC, it was noted that the Board’s
order in the underlying workers’ compensation claim was dated August 12, 2024, and that
Rockwood did not release the funds to the claimant until October 23, 2024.

Upon review, we conclude that the OIC did not err in finding that Rockwood failed
to timely comply with the Board’s August 12, 2024, order. It is clear that the Board’s order
was issued on August 12, 2024, and Rockwood did not release the funds to the claimant
dependent until October 23, 2024. We find no merit in Rockwood’s arguments. We find,
in accordance with West Virginia Code 23-5-9a(g), that the Board’s order was final at the
time it was issued and received by Rockwood. We further find that a pending motion for
stay does not absolve an insurance company from the duty to timely pay benefits as
ordered. In fact, a stay motion does not affect a claim in any way unless and until such stay
is granted.

Accordingly, we affirm the OIC’s April 23, 2025, order.

Affirmed.

ISSUED: May 1, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White

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