H. B. 2048
(By Delegate Facemyer)
[Introduced January 13, 1999; referred to the
Committee on Government Organization then Finance.]
A BILL to repeal article three, chapter twenty-one-a of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; and to amend and reenact sections one and six,
article two, chapter twenty-one-a of said code; and to amend
article one, chapter twenty-three of said code by adding
thereto two new sections, designated sections one-a and
one-b, all relating to eliminating the compensation programs
performance council and the position of commissioner of the
bureau of employment programs and reinstating the position
of commissioner of employment security that existed prior to
the commissioner of the bureau of employment programs with
the exception that the commissioner's authority does not
extend to workers' compensation; providing powers and duties
of the commissioner of employment security; creating the
board of workers' compensation to administer the workers' compensation program; membership and appointment of the
board; and powers of the board.
Be it enacted by the Legislature of West Virginia:
That article three, chapter twenty-one-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; and that sections one and six, article two of said
chapter be amended and reenacted; and that article one, chapter
twenty-three of said code be amended by adding thereto two new
sections, designated sections one-a and one-b, all to read as
follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 2. THE COMMISSIONER OF EMPLOYMENT SECURITY.
§21A-2-1. Appointment; term of office.
The bureau division shall be under the supervision of a
commissioner of the bureau employment programs security. The
commissioner shall be appointed by the governor, by and with the
advice and consent of the Senate, and shall hold his or her
office subject to the will and pleasure of the governor.
§21A-2-6. Powers and duties generally.
The commissioner shall be the executive and administrative
head of the bureau division and shall have the power and duty to:
(1) Exercise general supervision of and make regulations
rules for the government of the bureau division;
(2) Prescribe uniform rules pertaining to investigations,
departmental hearings, and promulgate rules; and regulations
(3) Supervise fiscal affairs and responsibilities of the
bureau division;
(4) Prescribe the qualifications of, appoint, remove and fix
the compensation of the officers and employees of the bureau
division, subject to the provisions of section ten, article four
of this chapter, relating to the board of review;
(5) Organize and administer the bureau division so as to
comply with the requirements of this chapter and chapter
twenty-three of this code and to satisfy any conditions
established in applicable federal legislation;
(6) Make reports in such form and containing such
information as the United States department of labor may from
time to time require, and comply with such provisions as the
United States department of labor may from time to time find
necessary to assure the correctness and verification of such
reports;
(7) Make available to any agency of the United States
charged with the administration of public works or assistance
through public employment, upon its request, the name, address,
ordinary occupation and employment status of each recipient of
unemployment compensation, and a statement of the recipient's
rights to further compensation under this chapter;
(8) Keep an accurate and complete record of all bureau
division proceedings; record and file all bonds and contracts and
assume responsibility for the custody and preservation of all
papers and documents of the bureau division;
(9) Sign and execute in the name of the state, by The Bureau
of Employment Programs the "Division of Employment Security," any
contract or agreement with the federal government, its agencies,
other states, their subdivisions or private persons;
(10) Prescribe a salary scale to govern compensation of
appointees and employees of the bureau division;
(11) Make the original determination of right in claims for
benefits;
(12) Make recommendations and an annual report to the
governor concerning the condition, operation, and functioning of
the bureau division;
(13) Invoke any legal or special remedy for the enforcement
of orders or the provisions of this chapter and chapter
twenty-three of this code;
(14) Exercise any other power necessary to standardize
administration, expedite bureau division business, assure the
establishment of fair rules and regulations and promote the
efficiency of the service;
(15) Keep an accurate and complete record and prepare a
monthly report of the number of persons employed and unemployed in the state, which report shall be made available upon request
to members of the public and the press;
(16) Provide at bureau division expense a program of
continuing professional, technical and specialized instruction
for the personnel of the bureau division;
(17) Assist the governor in the development of overall
administrative policy for the unemployment compensation system of
the state;
(18) Recommend legislation and
propose rules designed to
ensure the effective administration and financial viability of
the unemployment compensation system;
(19) In accordance with the laws and regulations of West
Virginia and the United States government, establish and monitor
performance measurements to ensure the timeliness and accuracy of
activities performed under the unemployment compensation laws;
(20) Advocate sufficient administrative resources to
effectively operate the unemployment compensation system of West
Virginia;
(21) Ensure that the unemployment compensation system of
West Virginia develops and pursues an effective program of
outreach and communication to employers, workers and others
involved in this program;
(22) Analyze opportunities to affect efficiencies and
improvements for employers and workers by developing common definitions, interrelated systems and other internal operational
improvements, including long-range planning for improvements;
(23) Develop programs, linkages in the public sector and the
private sector, and information materials designed to promote the
early return to work of individuals receiving unemployment
compensation benefits; and
(24) Consider such other matters regarding the unemployment
compensation system as the commissioner may desire.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1a. Transfer of powers.
All powers, duties and obligations under this chapter
heretofore granted to, exercised by, and vested in, the
commissioner of the bureau of employment programs, are hereby
transferred to the board of workers' compensation.
§23-1-1b. Board of workers' compensation; creation; appointment
and membership; additional powers.
(a) There is hereby created the board of workers'
compensation which shall be comprised of three members. All
members shall act as such on a full-time basis, and may not,
therefore, serve in any other capacity for remuneration or that
otherwise detracts from their respective duties as a board
member. All members shall be appointed by the governor with the advice and consent of the Senate and shall serve at his or her
will and pleasure. No more than two members can be of the same
political affiliation. One member shall have experience as an
employer, one member shall have experience as an employee, and
one member shall possess a postgraduate degree in business, labor
relations, commercial relations, or in a related discipline with,
at least, five years' experience as an actuary in casualty and
liability insurance.
(b) In addition to the powers, duties and obligations
transferred in section one-a of this article, the board shall
have the following additional powers, duties and obligations:
(1) Appoint an executive director to oversee and administer
the routine and everyday activities of the office of workers'
compensation and the workers' compensation program;
(2) Assist the governor in the development of overall
administrative policy for the workers' compensation system of the
state;
(3) Recommend legislation and establish rules designed to
ensure the effective administration and financial viability of
the workers' compensation system of West Virginia;
(4) Review and approve, reject or modify rules that are
proposed by the executive director for operation of the workers'
compensation system before the filing of the rules with the
secretary of state. This provision is applicable to any instance under chapter twenty-three of this code which authorizes the
commissioner to promulgate rules. Notwithstanding any provision
in this code to the contrary, including sections one and two,
article three, and section three, article seven, both of chapter
twenty-nine of this code, any rules adopted pursuant to this
section which are applicable to the provisions of chapter
twenty-three of this code shall not be subject to sections nine
through sixteen, all of article three, chapter twenty-nine-a of
this code. The board of workers' compensation shall follow the
remaining provisions of said article for giving notice to the
public of their actions and the holding of hearings or receiving
of comments on the rules. No later amendment to this code shall
have precedence over this section unless the later amendment
specifically provides to the contrary;
(5) In accordance with the laws and regulations of West
Virginia and the United States government, establish and monitor
performance measurements to ensure the timeliness and accuracy of
activities performed under the workers' compensation laws;
(6) Have the final right of approval of all base rates for
employers covered by the workers' compensation law as recommended
by the commissioner;
(7) Advocate sufficient administrative resources to
effectively operate the workers' compensation system of West
Virginia;
(8) Approve the designation of health care providers to make
decisions regarding appropriateness of medical services pursuant
to subsection (d), section one, article five, chapter
twenty-three of this code;
(9) Ensure that the workers' compensation system of West
Virginia develops and pursues an effective program of outreach
and communication to employers, workers and others involved in
the workers' compensation program;
(10) Analyze opportunities to effect efficiencies and
improvements for employers and workers by developing common
definitions, interrelated systems and other internal operational
improvements, including long-range planning for improvements;
(11) Develop programs, linkages in the public sector and the
private sector, and information materials designed to promote the
early return to work of individuals receiving workers'
compensation benefits;
(12) Examine the current design and report recommendations
to the governor and the Legislature regarding the second injury
reserve of the surplus fund and the financial viability of the
state's workers' compensation system;
(13) Consider such other matters regarding the workers'
compensation system as the executive director or any appointed
member of the board may desire;
(14) On or before the first day of September, one thousand nine hundred ninety-nine, establish vocational standards to be
considered in making decisions on permanent total disability
awards under subdivision (n), section six, article four, chapter
twenty-three of this code: Provided, That the board of workers'
compensation is expressly authorized to establish this standard
irrespective of court decisions interpreting any previous
enactment of this subdivision: Provided, however, That adoption
of the vocational standard requires an affirmative vote of two
thirds of the members of the board; and
(15) Adopt criteria for the determination and standards for
the payment of attorneys' fees pursuant to subdivision (2),
subsection (c), section sixteen, article four, chapter
twenty-three of this code.
(c) The board, in its policymaking powers, shall provide
continuity in policymaking in the administration of the program.
NOTE: The purpose of this bill is to eliminate the position
of commissioner of the bureau of employment programs while
replacing the position by reinstating the position of
commissioner of employment security, which existed prior to the
current position, with the exception that the commissioner's
authority only extends to unemployment compensation. This bill
bestows various powers and duties upon the commissioner,
including those that relate to unemployment compensation matters
which are under the current authority of the compensation
programs performance council.
This bill also creates a three-member full-time board to
administer workers' compensation. The board of workers'
compensation is appointed by the governor and serves at his or her will and pleasure. The board is granted various powers
including policy-making authority, the power to appoint an
executive director to run the day-to-day activities of the office
of workers' compensation, the powers currently held by the
current commissioner and compensation performance council.
§31A-3 is repealed insofar as all powers currently exercised
by the compensation programs performance council would be
transferred under the provisions of this bill.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§23-1-1a and 1b are new; therefore, strike-throughs and
underscoring have been omitted.