H. B. 2417


(By Delegates Louisos and Henderson)
[Introduced March 5, 1997; referred to the
Committee on Finance then the Judiciary.]




A BILL to amend and reenact section one, article two-a, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to shifting responsibility for subrogation for repayment to worker's compensation or a self-insured employer, with regard to medical benefits paid, from the amount received in settlement by an injured worker to the limits of the policy of a third-party insurer.

Be it enacted by the Legislature of West Virginia:
That section one, article two-a, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 2A. SUBROGATION.

§23-2A-1. Subrogation; limitations; effective date.

(a) Where a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured worker, or if he or she is deceased or physically or mentally incompetent, his or her dependents or personal representative shall be entitled to compensation under the provisions of this chapter and shall may not by having received same be precluded from making claim against said the third party.
(b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his or her dependents or his or her personal representative makes a claim against said the third party and recovers any sum thereby, the commissioner or a self-insured employer shall be allowed subrogation from the third party or its insurance with regard to medical benefits paid as of the date of the recovery: Provided, That under no circumstances shall may any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorney's fees and costs, the policy limits, if applicable, of the third party insurance, if such exist.
(c) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon such moneys received from the third party which shall exist in favor of the commissioner or self-insured employer. Any injured worker, his or her dependents or personal representative who receives moneys in settlement in any manner of a claim against a third party shall remain subject to the subrogation lien until payment in full of the amount permitted to be subrogated under subsection (b) of this section is paid.
(d) The right of subrogation granted by the provisions of this section shall may not attach to any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of this article.



NOTE: The purpose of this bill is to shift the burden of paying the statutory workers' compensation fund lien from an injured worker to the liable third party when a worker is injured or killed and receives workers' compensation fund benefits resulting from the acts or omissions of the third party, and said worker or his/her heirs later receives some award of money damages as legal compensation for the worker's injuries or death. If the third party is insured, the limit of the statutory workers' compensation fund lien would be the limits of the liable third party's insurance policy.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.