H. B. 200
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced June 10, 2003; referred to the Select Committee on
Workers' Compensation Revision.]
A BILL to repeal sections one, two, three, four, five, six and seven,
article three, chapter twenty-one-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to repeal
section five-b, article two, chapter twenty-three of said code;
to repeal section seven, article four-a of said chapter; to
repeal section fourteen, article five of said chapter; to amend
and reenact section thirty-three-d, article three, chapter five-a
of said code; to amend and reenact sections four and five,
article three, chapter five-b of said code; to amend and reenact
section one, article two, chapter five-f of said code; to amend
and reenact section seven, article twelve, chapter eleven of said
code; to amend and reenact section three, article seventeen of
said chapter; to amend and reenact section four, article one-a,
chapter twelve of said code; to amend and reenact section six,
article six of said chapter; to amend and reenact section ten,
article two, chapter fifteen of said code; to amend and reenact
section fifteen, article one, chapter sixteen of said code; to
amend and reenact section three, article twenty-nine-d of said
chapter; to amend and reenact section three, article thirty-six
of said chapter; to amend and reenact section twenty-six, article
nine-a, chapter eighteen of said code; to amend and reenact
section twelve-a, article ten-a of said chapter; to amend and
reenact section two, article ten-k of said chapter; to amend and
reenact section three, article three-a, chapter twenty-one of
said code; to amend and reenact section four, article one, chapter twenty-one-a of said code; to amend and reenact sections
six, six-c and thirteen, article two of said chapter; to amend
and reenact section eleven, article ten of said chapter; to amend
and reenact section eight, article three, chapter twenty-two of
said code; to amend and reenact sections one, two, three, four,
five, six, seven, eight, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, seventeen and eighteen, article one, chapter
twenty-three of said code; to further amend said article by
adding thereto eight new sections, designated sections one-a,
one-b, one-c, one-d, one-e, one-f, four-a and nineteen; to amend
and reenact sections one, one-c, one-d, two, three, four, five,
five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen and seventeen, article two of said
chapter; to amend and reenact section one, article two-a of said
chapter; to amend and reenact sections one, two and three,
article two-b of said chapter; to amend and reenact sections one,
one-a, two, three and five, article three of said chapter; to
further amend said article by adding thereto one new section,
designated section six; to amend and reenact sections one, one-a,
one-b, one-c, one-d, one-e, two, three, three-b, three-c, four,
five, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight,
eight-a, eight-b, eight-c, nine, nine-b, ten, eleven, twelve,
fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a,
seventeen, eighteen, twenty, twenty-two, twenty-three, twenty-
four and twenty-five, article four of said chapter; to further
amend said article by adding thereto a new section, designated
section one-g; to amend and reenact sections one, three, five,
six and eight, article four-a of said chapter; to amend and
reenact sections two, five, six, and seven, article four-b of
said chapter; to further amend said article by adding thereto a
new section, designated section eight-b; to amend and reenact
sections two, three, four and five, article four-c of said
chapter; to amend and reenact sections one, two, three, four,
five, six, seven, eight, nine, ten, eleven, twelve, fifteen, seventeen and eighteen, article five of said chapter; that said
article be further amended by adding thereto two new sections,
designated sections ten-a and fifteen-a; to amend and reenact
section two, article eight, chapter twenty-six of said code; to
amend and reenact sections one hundred twenty-five and one
hundred thirty-one, article eighteen, chapter forty-eight of said
code; to amend chapter fifty-one by adding thereto a new article,
designated article one-b; and to amend and reenact sections
twenty-four-e, twenty-four-f and twenty-four-g, article three,
chapter sixty-one of said code, all relating to workers'
compensation generally . . .
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six and seven, article
three, chapter twenty-one-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be repealed; that section five-b,
article two, chapter twenty-three of said code be repealed; that
section seven, article four-a of said chapter be repealed; that section
fourteen, article five of said chapter be repealed; that section
thirty-three-d, article three, chapter five-a of said code be amended
and reenacted; that sections four and five, article three, chapter
five-b of said code be amended and reenacted; that section one, article
two, chapter five-f of said code be amended and reenacted; that section
seven, article twelve, chapter eleven of said code be amended and
reenacted; that section three, article seventeen of said chapter be
amended and reenacted; that section four, article one-a, chapter twelve
of said code be amended and reenacted; that section six, article six
of said chapter be amended and reenacted; that section ten, article
two, chapter fifteen of said code be amended and reenacted; that
section fifteen, article one, chapter sixteen of said code be amended
and reenacted; that section three, article twenty-nine-d of said
chapter be amended and reenacted; that section three, article thirty-
six of said chapter be amended and reenacted; that section twenty-six,
article nine-a, chapter eighteen of said code be amended and reenacted;
that section twelve-a, article ten-a of said chapter be amended and reenacted; that section two, article ten-k of said chapter be amended
and reenacted; that section three, article three-a, chapter twenty-one
of said code be amended and reenacted; that section four, article one,
chapter twenty-one-a of said code be amended and reenacted; that
sections six, six-c and thirteen, article two of said chapter be
amended and reenacted; that section eleven, article ten of said chapter
be amended and reenacted; that section eight, article three, chapter
twenty-two of said code be amended and reenacted; that sections one,
two, three, four, five, six, seven, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, seventeen and eighteen, article one,
chapter twenty-three of said code be amended and reenacted; that said
article be further amended by adding thereto eight new sections,
designated sections one-a, one-b, one-c, one-d, one-e, one-f, four-a
and nineteen; that sections one, one-c, one-d, two, three, four, five,
five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen and seventeen, article two of said chapter
be amended and reenacted; that section one, article two-a of said
chapter be amended and reenacted; that sections one, two and three,
article two-b of said chapter be amended and reenacted; that sections
one, one-a, two, three and five, article three of said chapter be
amended and reenacted; that said article be further amended by adding
thereto one new section, designated section six; that sections one,
one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-c, four,
five, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-
a, eight-b, eight-c, nine, nine-b, ten, eleven, twelve, fourteen,
fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen, eighteen,
twenty, twenty-two, twenty-three, twenty-four and twenty-five, article
four of said chapter be amended and reenacted; that said article be
further amended by adding thereto a new section, designated section
one-g; that sections one, three, five, six and eight, article four-a
of said chapter be amended and reenacted; that sections two, five, six,
and seven, article four-b of said chapter be amended and reenacted;
that said article be further amended by adding thereto a new section,
designated section eight-b; that sections two, three, four and five, article four-c of said chapter be amended and reenacted; that sections
one, two, three, four, five, six, seven, eight, nine, ten, eleven,
twelve, fifteen, seventeen and eighteen, article five of said chapter
be amended and reenacted; that said article be further amended by
adding thereto two new sections, designated sections ten-a and fifteen-
a; that section two, article eight, chapter twenty-six of said code be
amended and reenacted; that sections one hundred twenty-five and one
hundred thirty-one, article eighteen, chapter forty-eight of said code
be amended and reenacted; that chapter fifty-one be amended by adding
thereto a new article, designated article one-b; and that sections
twenty-four-e, twenty-four-f and twenty-four-g, article three, chapter
sixty-one of said code be amended and reenacted, all to read as
follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-33d. Grounds for debarment.
Grounds for debarment are:
(a)(1) Conviction of an offense involving fraud or a felony
offense in connection with obtaining or attempting to obtain a public
contract or subcontract;
(b) (2) Conviction of any federal or state antitrust statute
relating to the submission of offers;
(c) (3) Conviction of an offense involving embezzlement, theft,
forgery, bribery, falsification or destruction of records, making false
statements or receiving stolen property in connection with the
performance of a contract;
(d) (4) Conviction of a felony offense demonstrating a lack of
business integrity or business honesty that affects the present
responsibility of the vendor or subcontractor;
(e) (5) Default on obligations owed to the state, including, but
not limited to, obligations under the West Virginia workers'
compensation act, the West Virginia unemployment compensation act and
West Virginia state tax and revenue laws. For purposes of this
subsection, a vendor is in default when, after due notice, the vendor fails to submit a required payment, interest thereon or penalty, and
has not entered into a repayment agreement with the appropriate agency
of the state or has entered into a repayment agreement but does not
remain in compliance with its obligations under the repayment
agreement. In the case of a vendor granted protection by order of a
federal bankruptcy court or a vendor granted an exemption under any
rule of the bureau of employment programs or the workers' compensation
commission, the director may waive debarment under section
thirty-three-f of this article: Provided, That in no event may
debarment be waived with respect to any vendor who has not paid all
current state obligations for at least the four most recent calendar
quarters, excluding the current calendar quarter, or with respect to
any vendor who is in default on a repayment agreement with an agency
of the state;
(f) (6) The vendor is not in good standing with a licensing
board, in that the vendor is not licensed when licensure is required
by the law of this state, or the vendor has been found to be in
violation of an applicable licensing law after notice, opportunity to
be heard and other due process required by law; and
(g) (7) Violation of the terms of a public contract or
subcontract for:
(1) (A) Willful failure to substantially perform in accordance
with the terms of one or more public contracts;
(2) (B) Performance in violation of standards established by law
or generally accepted standards of the trade or profession amounting
to intentionally deficient or grossly negligent performance on one or
more public contracts;
(3) (C) Use of substandard materials on one or more public
contracts or defects in construction in one or more public construction
projects amounting to intentionally deficient or grossly negligent
performance, even if discovery of the defect is subsequent to
acceptance of a construction project and expiration of any warranty
thereunder;
(4) (D) A repeated pattern or practice of failure to perform so serious and compelling as to justify debarment; or
(5) (E) Any other cause of a serious and compelling nature
amounting to knowing and willful misconduct of the vendor that
demonstrates a wanton indifference to the interests of the public and
that caused, or that had a substantial likelihood of causing, serious
harm to the public.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION
SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules and
existing legislative rules.
(a) The joint commission on economic development may review any
procedural rules rule, interpretive rules rule or existing legislative
rules rule and make recommendations concerning such the rules to the
Legislature.
(b) The development office and the tourism commission established
pursuant to article two, of this chapter five-b of this code, the
economic development authority established pursuant to article fifteen,
chapter thirty-one of this code, the bureau of employment programs
established pursuant to article four, chapter twenty-one-a of this
code, the workers' compensation commission established pursuant to
article one, chapter twenty-three of this code, the workforce
investment commission established pursuant to article two-c, of this
chapter five-b of this code, West Virginia jobs investment trust,
regional planning and development councils, West Virginia rural
development council, governor's office of technology and West Virginia
clearinghouse for workforce education shall each file a copy of its
legislative rules with the commission as provided for herein in this
section. Each agency that proposes legislative rules in accordance to
the provisions of article three, three-a or three-b, chapter twenty-
nine-a of this code relating to economic development or workforce
development shall file the rules with the joint commission at the time
the rules are filed with the secretary of state prior to the public
comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
(a) The joint commission on economic development shall study the
following:
(1) The feasibility of establishing common regional
configurations for such purposes as local workforce investment areas,
regional educational service agencies and for all other purposes the
commission considers feasible. The study should review the existing
levels of cooperation between state and local economic developers;
complete an analysis of possible regional configurations and outline
examples of other successful regional systems or networks found
throughout the world. If the study determines that the common regional
configurations are feasible, the commission shall recommend legislation
establishing common regional designations for all purposes the
commission considers feasible. In making the designation of regional
areas, the study shall take into consideration, but not be limited to,
the following:
(A) Geographic areas served by local educational agencies and
intermediate educational agencies;
(B) Geographic areas served by post-secondary educational
institutions and area vocational education schools;
(C) The extent to which such the local areas are consistent with
labor market areas;
(D) The distance that individuals will need to travel to receive
services provided in such the local areas; and
(E) The resources of such the local areas that are available to
effectively administer the activities or programs;
(2) The effectiveness and fiscal impact of incentives for
attracting and growing businesses, especially technology-intensive
companies; and
(3) A comprehensive review of West Virginia's existing economic
and community development resources and the recommendation of an
organizational structure, including, but not limited to, the
reorganization of the bureau of commerce and the development office
that would allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and
efficient manner the studies required in this article, it is necessary
for the joint commission to assemble and compile a tremendous amount
of information. The development office will assist the joint commission
in the collection and analysis of this information. The tourism
commission established pursuant to article two of this chapter, the
economic development authority established pursuant to article fifteen,
chapter thirty-one of this code, the bureau of employment programs
established pursuant to article four, chapter twenty-one-a of this
code, the workers' compensation commission established pursuant to
article one, chapter twenty-three of this code, the workforce
investment commission established pursuant to article two-c of this
chapter, West Virginia jobs investment trust, regional planning and
development councils, West Virginia rural development council,
governor's office of technology and West Virginia clearinghouse for
workforce education all shall provide a copy of the agency's annual
report as submitted to the governor in accordance with the requirements
set forth in section twenty, article one, chapter five of this code to
the West Virginia development office. The development office shall
review, analyze and summarize the data contained in the reports,
including its own annual report, and annually submit its findings to
the joint commission on or before the thirty-first day of December.
(c) The legislative auditor shall provide to the joint commission
a copy of any and all reports on agencies listed in subsection (b) of
this section, which are required under article ten, chapter four of
this code.
(d) The joint commission shall complete the studies set forth in
this section and any other studies it the joint commission determines
to undertake prior to the first day of December of each year and may
make recommendations, including recommended legislation for
introduction during the regular session of the Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated
with any agency or board, are transferred to and incorporated in and
administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter five
of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in article
five, chapter five-a of this code;
(4) Commission on uniform state laws provided for in article one-
a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided for in
article twenty-nine, chapter eighteen of this code and article six-a,
chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for in article twenty-three,
chapter twenty-nine of this code;
(8) Public defender services provided for in article twenty-one,
chapter twenty-nine of this code;
(9) Division of personnel provided for in article six, chapter
twenty-nine of this code;
(10) The West Virginia ethics commission provided for in article
two, chapter six-b of this code; and
(11) Consolidated public retirement board provided for in article
ten-d, chapter five of this code.
(b) The department of commerce, labor and environmental resources
and the office of secretary of the department of commerce, labor and
environmental resources are abolished. For purposes of administrative
support and liaison with the office of the governor, the following agencies and boards, including all allied, advisory and affiliated
entities, are grouped under two bureaus and one commission as follows:
(1) Bureau of commerce;
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which includes:
(i) Occupational safety and health review commission provided for
in article three-a, chapter twenty-one of this code; and
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for in
article one, chapter twenty-two-a of this code. The following boards
are transferred to the office of miners' health, safety and training
for purposes of administrative support and liaison with the office of
the governor:
(i) Board of coal mine health and safety and coal mine safety and
technical review committee provided for in article six, chapter twenty-
two-a of this code;
(ii) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this code; and
(iii) Mine inspectors' examining board provided for in article
nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in article
two, chapter five-b of this code, which includes:
(i) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(ii) Tourism commission provided for in article two, chapter
five-b of this code and the office of the tourism commissioner;
(D) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this code.
The Blennerhassett historical state park provided for in article eight,
chapter twenty-nine of this code is under the division of natural
resources;
(E) Division of forestry provided for in article one-a, chapter
nineteen of this code;
(F) Geological and economic survey provided for in article two,
chapter twenty-nine of this code;
(G) Water development authority and board provided for in article
one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article one,
chapter twenty-one-a of this code; and
(3) Workers' compensation commission provided for in article one,
chapter twenty-three of this code.
(c) Bureau of environment is abolished and the following agencies
and boards, including all allied, advisory and affiliated entities, are
transferred to the department of environmental protection for purposes
of administrative support and liaison with the office of the governor:
(1) Air quality board provided for in article two, chapter
twenty-two-b of this code;
(2) Solid waste management board provided for in article three,
chapter twenty-two-c of this code;
(3) Environmental quality board, or its successor board, provided
for in article three, chapter twenty-two-b of this code;
(4) Surface mine board provided for in article four, chapter
twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(6) Shallow gas well review board provided for in article eight,
chapter twenty-two-c of this code; and
(7) Oil and gas conservation commission provided for in article
nine, chapter twenty-two-c of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated
with any agency or board, are transferred to and incorporated in and
administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter ten
of this code;
(2) Educational broadcasting authority provided for in article
five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of this
code;
(4) Division of culture and history provided for in article one,
chapter twenty-nine of this code; and
(5) Division of rehabilitation services provided for in section
two, article ten-a, chapter eighteen of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated
with any agency or board, are transferred to and incorporated in and
administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau for public health provided for in article one, chapter
sixteen of this code;
(4) Office of emergency medical services and advisory council
thereto provided for in article four-c, chapter sixteen of this code;
(5) Health care cost review authority provided for in article
twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty, chapter
twenty-nine of this code; and
(8) The child support enforcement division provided for in
chapter forty-eight of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated
with any agency or board, are transferred to and incorporated in and
administered as a part of the department of military affairs and public
safety:
(1) Adjutant general's department provided for in article one-a,
chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen of
this code;
(3) Military awards board provided for in article one-g, chapter
fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of said
chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter twenty-five
of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority provided
for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council provided
for in article one, chapter nine-a of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated
with any agency or board, are transferred to and incorporated in and
administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven of
this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director provided
for in article twenty-two, chapter twenty-nine of this code;
(4) Agency of insurance commissioner provided for in article two,
chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided for
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of banking and financial institutions provided for in
article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter forty-
seven-a of this code; and
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code.
(h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated
with any agency or board, are transferred to and incorporated in and
administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a, chapter
seventeen of this code;
(2) Parkways, economic development and tourism authority provided
for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a, chapter
twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(i) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions of
section two of this article, the existence of the position of
administrator and of the agency and the powers, authority and duties
of each administrator and agency are not affected by the enactment of
this chapter.
(j) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of
section two of this article, the existence, powers, authority and
duties of boards and the membership, terms and qualifications of
members of such the boards are not affected by the enactment of this
chapter and all boards which are appellate bodies or were otherwise
established to be independent decisionmakers will not have their
appellate or independent decision-making status affected by the
enactment of this chapter.
(k) Any department previously transferred to and incorporated in
a department created in section two, article one of this chapter by
prior enactment of this section in chapter three, acts of the
Legislature, first extraordinary session, one thousand nine hundred
eighty-nine, and subsequent amendments, means a division of the
appropriate department. Wherever reference is made to any department
transferred to and incorporated in a department created in section two,
article one of this chapter, the reference means a division of the
appropriate department, and any reference to a division of a department
so transferred and incorporated means a section of the appropriate
division of the department.
(l) When an agency, board or commission is transferred under a
bureau or agency other than a department headed by a secretary pursuant
to this section, that transfer is solely for purposes of administrative
support and liaison with the office of the governor, a department
secretary or a bureau. The bureaus created by the Legislature upon the
abolishment of the department of commerce, labor and environmental
resources in the year one thousand nine hundred ninety-four will be
headed by a commissioner or other statutory officer of an agency within
that bureau. Nothing in this section extends the powers of department
secretaries under section two of this article to any person other than
a department secretary and nothing limits or abridges the statutory
powers and duties of statutory commissioners or officers pursuant to
this code.
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-7. Display of registration certificate; injunction; public
information, reciprocal exchange of information.
Any person to whom a certificate of registration shall be has
been issued under the provisions of section four of this article shall
keep such the certificate posted in a conspicuous position in the place
where the privilege of such the business is exercised. Such The
certificate of registration shall be produced for inspection whenever
required by the tax commissioner or by any law-enforcement officers of
this state, county or municipality wherein in which the privileges to
conduct business are exercised.
No injunction shall issue from any court in the state enjoining
the collection of any business registration certificate tax required
herein in this section; and any person claiming that any business
certificate is not due, for any reason, shall pay the same tax under
protest and petition the tax commissioner for a refund in accordance
with the provisions of section fourteen, article ten of this chapter.
If any person engaging in or prosecuting any business, or trade,
contrary to any other provisions of this article, whether without
obtaining a business certificate therefor before commencing the same,
or by continuing the same after the termination of the effective period
of any such the business certificate, the circuit court, or the judge
thereof in vacation, of the county in which such the violation occurred
shall, upon proper application in the name of the state, and after ten
days' written notice thereof to such person, grant an injunction
prohibiting such that person from continuing such the business,
activity or trade until he or she has fully complied with the
provisions of this article. The remedy provided in this section shall
be is in addition to all other penalties and remedies provided by law.
The tax commissioner shall make available, when requested,
information as to whether a person is registered to do business in the
state of West Virginia.
The tax commissioner shall deliver to the commissioner of the
bureau of employment programs and the executive director of the
workers' compensation commission the information contained in the business franchise registration certificate when this information is
used to implement and administer a single point of registration program
for persons engaging in any business activity in the state of West
Virginia. The single point of registration program shall provide that,
once an individual has received a business franchise registration
certificate, the tax commissioner shall notify the commissioner of the
bureau of employment programs and the executive director of the
workers' compensation commission of the names, addresses and other
identifying information of that individual or entity. Upon receiving
this information the commissioner of the bureau of employment programs
and the executive director of the workers' compensation commission
shall contact all businesses receiving a business franchise
registration certificate and provide all necessary forms and paperwork
to register a business within the bureau and commission; pursuant to
subsection (b), section six-b, article two, chapter twenty-one-a of
this code and subsection (c), section two, article two, chapter twenty-
three of this code.
Notwithstanding the provisions of section five, article ten of
this chapter, the tax commissioner may enter into a reciprocal
agreement with the governor's office of community and industrial
development and other departments or agencies of this state for the
exchange of information contained in the application for a business
franchise registration certificate filed under section four of this
article when the purpose for the exchange is to implement and
administer a single-point of registration program for persons engaging
in business in this state. Such The other departments and agencies
shall have authority to may enter into a reciprocal exchange agreement
for this purpose notwithstanding any provision of this code to the
contrary.
ARTICLE 17. TOBACCO PRODUCTS EXCISE TAX ACT.
§11-17-3. Levy of tax; ratio; dedication of proceeds.
(a) Tax on cigarettes. -- For the purpose of providing revenue
for the general revenue fund of the state, an excise tax is hereby
levied and imposed on sales of cigarettes at the rate of fifty-five cents on each twenty cigarettes or in like ratio on any part thereof.
Only one sale of the same article shall be used in computing the amount
of tax due under this subsection.
(b) Tax on tobacco products other than cigarettes. -- Effective
the first day of January, two thousand two, an excise tax is hereby
levied and imposed on the sale or use of, other than cigarettes,
tobacco products at a rate equal to seven percent of the wholesale
price of each article or item of tobacco product other than cigarettes
sold by the wholesaler or subjobber dealer, whether or not sold at
wholesale, or if not sold, then at the same rate upon the use by the
wholesaler or dealer. Only one sale of the same article shall be used
in computing the amount of tax due under this subsection. Revenues
received from this tax shall be deposited into the general revenue
fund.
(c) Effective date. -- The changes set forth herein to this
section and section four of this article enacted during the regular
session of the Legislature in the year two thousand three shall become
effective the first day of May, two thousand three.
(d)(1) Additional tax on cigarettes. -- In addition to the tax
levied and imposed pursuant to subsection (a) of this section, and for
the purpose of providing revenue for the general revenue fund of the
state in order to provide additional funding for the workers'
compensation system of the state as a supplement to other fiscal
measures being taken to reduce and eliminate the immediate and critical
threat to the solvency of the workers' compensation system of the
state, an additional excise tax is hereby levied and imposed on sales
of cigarettes at the rate of twenty cents on each twenty cigarettes or
in like ratio on any part thereof. Only one sale of the same article
shall be used in computing the amount of tax due under this subsection.
(2) It is the intent of the Legislature that pursuant to
appropriation of the Legislature, general revenue funds in amounts
equal to the excise tax revenues received pursuant to this subsection
be transferred to the workers' compensation fund and that the amounts
transferred be expended to satisfy the obligations of the workers' compensation fund.
(3) The changes set forth herein to this section enacted during
the second extraordinary session of the Legislature in the year two
thousand three shall become effective the first day of August, two
thousand three.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1A. WEST VIRGINIA SMALL BUSINESS LINKED DEPOSIT PROGRAM.
§12-1A-4. Applications for loan priority; loan package; counseling.
(a) An eligible lending institution that desires to participate
in the linked deposit program shall accept and review loan applications
from eligible small businesses that have been prepared with the advice
of the small business development center. The lending institution
shall apply all usual lending standards to determine the credit
worthiness of each eligible small business and whether the loan
application meets the criteria established in this article.
(b) An eligible small business shall certify on its loan
application that: (1) The small business is in good standing with the
state tax division, the workers' compensation commission and the bureau
of employment programs as of the date of the application; (2) the
linked deposit loan will be used to create new jobs or preserve
existing jobs and employment opportunities; and (3) the linked deposit
loan shall not be used to refinance an existing debt.
(c) In considering which eligible small businesses should receive
linked deposit loans, the eligible lending institution shall give
priority to the economic needs of the area in which the business is
located, the number of jobs to be created and preserved by the receipt
of the loan, the reasonable ability of the small business to repay the
loan and other factors considered appropriate by the eligible financial
institution.
(d) A small business receiving a linked deposit loan shall
receive supervision and counseling provided by the small business
development center when applying for the loan. The services available
from the small business development center include eligibility
certification, business planning, quarterly financial statement review and loan application assistance. The state tax division and the bureau
of employment programs and worker's compensation commission shall
provide the small business development center with information as to
the standing of each small business loan applicant. The small business
development center shall include these certifications with the loan
application.
(e) The eligible financial institution shall forward to the
treasurer a linked deposit loan package in the form and manner
prescribed by the treasurer. The treasurer shall forward notice of
approval of the loan to the small business development center at the
same time it is furnished to the eligible financial institution.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-6. Annual audits; reports and information to constitutional and
legislative officers, council of finance and administration,
consolidated public retirement board, workers' compensation fund
and coal-workers' pneumoconiosis fund; statements and reports
open for inspection.
(a) The board shall cause an annual financial and compliance
audit of the assets managed by the board to be made by a certified
public accounting firm which has a minimum staff of ten certified
public accountants and which is a member of the American institute of
certified public accountants and, if doing business in West Virginia,
a member of the West Virginia society of certified public accountants.
The financial and compliance audit shall be made of the board's books,
accounts and records with respect to its receipts, disbursements,
investments, contracts and all other matters relating to its financial
operations. Copies of the audit report shall be furnished to the
governor, state treasurer, state auditor, president of the Senate,
speaker of the House of Delegates, council of finance and
administration and consolidated public retirement board.
(b) The board shall produce monthly financial statements for the
assets managed by the board and cause them to be delivered to each
member of the board and the executive secretary of the consolidated
public retirement board as established in sections one and two, article ten-d, chapter five of this code and to the commissioner of the bureau
of employment programs executive director of the workers' compensation
commission as administrator of the workers' compensation fund and coal-
workers' pneumoconiosis fund as established provided in section one
one-b, article one, chapter twenty-three of this code and section one,
article three of said chapter and section seven, article four-b of said
chapter.
(c) The board shall deliver in each quarter to the council of
finance and administration and the consolidated public retirement board
a report detailing the investment performance of the 401(a) plans.
(d) The board shall cause an annual audit of the reported returns
of the assets managed by the board to be made by an investment
consulting or a certified public accounting firm meeting the criteria
set out in subsection (a) of this section. The board shall furnish
copies of the audit report to the governor, state treasurer, state
auditor, president of the Senate, speaker of the House of Delegates,
council of finance and administration and consolidated public
retirement board.
(e) The board shall provide any other information requested in
writing by the council of finance and administration.
(f) All statements and reports with respect to participant plans
required in this section shall be available for inspection by the
members and beneficiaries and designated representatives of the
participant plans.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-10. Uniforms; authorized equipment, weapons and supplies; local
headquarters; quarters for members; life insurance; medical and
hospital fees for injuries and illnesses of members incurred in
line of duty.
(a) The standard uniform to be used by the West Virginia state
police after the effective date of this article shall be as follows:
Forestry green blouse with West Virginia state police emblem on sleeve;
black shoulder strap, one-inch black stripe around sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe
down the side; trousers (slacks) with one-inch black stripe down the
side for officers and clerks regularly enlisted in the state police;
forestry green shirts with West Virginia state police emblem on sleeve;
black shoulder straps; forestry green mackinaw with West Virginia state
police emblem on sleeve; black shoulder straps; one-inch black stripe
around sleeve four inches from end of sleeve; campaign hat of olive
drab color; black Sam Browne belt with holster; black leggings and
shoes; the officer's uniform will have one and one-quarter inch black
stripe around the sleeve of blouse and mackinaw four inches from end
of sleeve circumposed with one-half inch gold braid, also black collars
on blouse, with two silver shoulder bars for captains, one silver
shoulder bar for first lieutenant, one gold shoulder bar for second
lieutenant. For noncommissioned officers the uniform blouse and shirt
will have thereon black chevrons of the appropriate rank.
(b) The superintendent shall establish the weapons and
enforcement equipment which shall be are authorized for use by members
of the state police and shall provide for periodic inspection of such
the weapons and equipment. He or she shall provide for the discipline
of members using other than authorized weapons and enforcement
equipment.
(c) The superintendent shall provide the members of the state
police with suitable arms and weapons and, when he deems or she
considers it necessary, with suitably equipped automobiles,
motorcycles, watercraft, airplanes and other means of conveyance to be
used by the West Virginia state police, the governor, and other
officers and executives in the discretion of the governor, in times of
flood, disaster and other emergencies, for traffic study and control,
criminal and safety work, and in other matters of official business.
He or she shall also provide the standard uniforms for all members of
the state police, for officers, noncommissioned officers and troopers
herein provided for in this section. All uniforms and all arms,
weapons and other property furnished the members of the state police
by the state of West Virginia shall be are and remain the property of the state.
(d) The superintendent is authorized to may purchase and maintain
on behalf of members group life insurance not to exceed the amount of
five thousand dollars on behalf of each member.
(e) The superintendent is authorized to may contract and furnish
at state police expense medical and hospital services for treatment of
illness or injury of a member which shall be determined by the
superintendent to have been incurred by such the member while engaged
in the performance of duty and from causes beyond control of such the
members. Notwithstanding any other provision of this code, the
superintendent shall have has the right of subrogation in any civil
action or settlement brought by or on behalf of a member in relation
to any act by another which results in the illness, injury or death of
a member. To this end, the superintendent is hereby authorized to may
initiate such an action on behalf of the state police in order to
recover the costs incurred in providing medical and hospital services
for the treatment of a member resulting from injury or illness
originating in the performance of official duties. This subsection
shall not affect the power of a court to apply ordinary equitable
defenses to the right of subrogation.
The superintendent is further empowered to may also consult with
the commissioner of the bureau of employment programs executive
director of the workers' compensation commission in an effort to defray
the cost of medical and hospital services. In no case will the
compensation rendered to health care providers for medical and hospital
services exceed the then current rate schedule in use by the bureau of
employment programs, workers' compensation division workers'
compensation commission.
Third-party reimbursements received by the superintendent after
the expiration of the fiscal year in which the injury, illness or death
occurred will be deposited to a nonexpiring special revenue account.
Funds deposited to this account may be used solely for defraying the
costs of medical or hospital services rendered to any sworn members as
a direct result of an illness, injury or death resulting from the performance of official duties.
(f) The superintendent shall establish and maintain local
headquarters at such those places in West Virginia as that are in his
or her judgment suitable and proper to render the West Virginia state
police most efficient for the purpose of preserving the peace,
protecting property, preventing crime, apprehending criminals and
carrying into effect all other provisions of this article. The
superintendent shall provide, by acquisition, lease or otherwise, for
local headquarters, for housing and quarters for the accommodation of
the members of the West Virginia state police, and for any other
facilities necessary or useful for the effective operation of the West
Virginia state police and shall provide all equipment and supplies
necessary for the members of the West Virginia state police to perform
their duties.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-15. Investigations and hearings; power to administer oaths,
subpoena witnesses, etc.; use of information and material
acquired.
(a) The secretary, the commissioner, any officer or employee of
the department designated by the secretary, or any other individual
designated by the secretary may hold investigations, inquiries and
hearings concerning matters covered by the laws of this state
pertaining to public health and within the authority and the rules and
orders of the secretary. Hearings shall be open to the public and
shall be held upon any call or notice considered advisable by the
secretary.
(b) Each individual designated to hold any inquiry, investigation
or hearing shall have the power to may administer oaths and
affirmations, certify to all official acts, issue subpoenas and order
the attendance and testimony of witnesses in the production of papers,
books and documents. In case of the failure of any person to comply
with any subpoena or order issued under the authority of this section,
the secretary or his or her authorized representative may invoke the aid of any circuit court of this state. The court may thereupon order
that person to comply with the requirements of the subpoena order or
to give evidence as to the matter in question. Failure to obey the
order of the court may be punished by the court as a contempt of court.
(c) Subject to the provisions of subsections (a) and (b) of this
section, the secretary may in his or her discretion make available to
appropriate federal, state and municipal agencies information and
material developed in the course of its investigation and hearings:
Provided, That information obtained from studies or from any
investigation made or hearing held pursuant to the provisions of this
article may not be admissible in evidence in any action at law to
recover damages for personal injury or in any action under the workers'
compensation act, but the information, if available, shall be furnished
upon request to the commissioner of the bureau of employment programs
executive director of the workers' compensation commission for the sole
purpose of adjusting claims presented to the commissioner commission.
ARTICLE 29D. STATE HEALTH CARE.
§16-29D-3. Agencies to cooperate and to provide plan; contents of
plan; reports to Legislature; late payments by state agencies and
interest thereon.
(a) All departments and divisions of the state, including, but
not limited to, the bureau of employment programs, the division of
health and the division of human services within the department of
health and human resources; the public employees insurance agency
within the department of administration; the division of rehabilitation
services; the workers' compensation commission; or such the other
department or division as shall supervise or provide rehabilitation;
and the university of West Virginia board of trustees, as the governing
board for the state's medical schools, are authorized and directed to
cooperate in order, among other things, to ensure the quality of the
health care services delivered to the beneficiaries of such the
departments and divisions and to ensure the containment of costs in the
payment for such services.
(b) It is expressly recognized that no other entity may interfere with the discretion and judgment given to the single state agency which
administers the state's medicaid program. Thus, it is the intention
of the Legislature that nothing contained in this article shall be
interpreted, construed or applied to interfere with the powers and
actions of the single state agency which, in keeping with applicable
federal law, shall administer the state's medicaid program as it
perceives to be in the best interest of that program and its
beneficiaries.
(c) Such The departments and divisions shall develop a plan or
plans to ensure that a reasonable and appropriate level of health care
is provided to the beneficiaries of the various programs including the
public employees insurance agency and the workers' compensation fund,
the division of rehabilitation services and, to the extent permissible,
the state medicaid program. The plan or plans may include, among other
things, and the departments and divisions are hereby authorized to
enter into:
(1) Utilization review and quality assurance programs;
(2) The establishment of a schedule or schedules of the maximum
reasonable amounts to be paid to health care providers for the delivery
of health care services covered by the plan or plans. Such a The
schedule or schedules may be either prospective in nature or cost
reimbursement in nature, or a mixture of both: Provided, That any
payment methods or schedules for institutions which provide inpatient
care shall be institution-specific and shall, at a minimum, take into
account a disproportionate share of medicaid, charity care and medical
education: Provided, however, That in no event may any rate set in
this article for an institutional health care provider be greater than
such the institution's current rate established and approved by the
health care cost review authority pursuant to article twenty-nine-b of
this chapter;
(3) Provisions for making payments in advance of the receipt of
health care services by a beneficiary, or in advance of the receipt of
specific charges for such the services, or both;
(4) Provisions for the receipt or payment of charges by electronic transfers;
(5) Arrangements, including contracts, with preferred provider
organizations; and
(6) Arrangements, including contracts, with particular health
care providers to deliver health care services to the beneficiaries of
the programs of the departments and divisions at agreed-upon rates in
exchange for controlled access to the beneficiary populations.
(d) The director of the public employees insurance agency shall
contract with an independent actuarial company for a review every four
years of the claims experience of all governmental entities whose
employees participate in the public employees insurance agency program,
including, but not limited to, all branches of state government, all
state departments or agencies (including those receiving funds from the
federal government or a federal agency), all county and municipal
governments or any other similar entities for the purpose of
determining the cost of providing coverage under the program, including
administrative cost, to each such governmental entity.
(e) Nothing in this section shall be construed to give or reserve
to the Legislature any further or greater power or jurisdiction over
the operations or programs of the various departments and divisions
affected by this article than that already possessed by the Legislature
in the absence of this article.
(f) For the purchase of health care or health care services by a
health care provider participating in a plan under this section on or
after the first day of September, one thousand nine hundred
eighty-nine, by the public employees insurance agency, the division of
rehabilitation services and the division of workers' compensation
workers' compensation commission, a state check shall be issued in
payment thereof within sixty-five days after a legitimate uncontested
invoice is actually received by such the division, commission or
agency. Any state check issued after sixty-five days shall include
interest at the current rate, as determined by the state tax
commissioner under the provisions of section seventeen-a, article ten,
chapter eleven of this code., which The interest shall be calculated from the sixty-sixth day after such the invoice was actually received
by the division
commission or agency until the date on which the state check is mailed
to the vendor.
ARTICLE 36. NEEDLESTICK INJURY PREVENTION.
§16-36-3. Needlestick injury prevention advisory committee.
(a) There is established a needlestick injury prevention advisory
committee to advise the director in the development of rules required
under this article.
(b) The committee shall meet at least four times a year for the
initial two years after the effective date of this article and on the
call of the director thereafter. The director shall serve as the chair
and shall appoint thirteen members, one representing each of the
following groups:
(1) A representative of the health insurance industry;
(2) The commissioner of the bureau of employment programs
executive director of the workers' compensation commission, or his or
her designee from the division of workers' compensation;
(3) Five nurses who work primarily providing direct patient care
in a hospital or nursing home, at least one of which is employed in a
state-operated facility;
(4) A phlebotomist employed in a hospital or nursing home;
(5) Two administrators of different hospitals operating within
the state;
(6) A director of nursing employed in a nursing home within the
state;
(7) A licensed physician practicing in the state; and
(8) An administrator of a nursing home operating within the
state.
(c) Members of the committee serve without compensation. Each
member shall be reimbursed for actual and necessary expenses incurred
for each day or portion thereof engaged in the discharge of official
duties, in a manner consistent with guidelines of the travel management
office of the department of administration.
(d) A majority of all members constitutes a quorum for the
transaction of all business. Members serve for two-year terms and may
not serve for more than two consecutive terms.
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-26. Allowance for workers' compensation for unpaid student
work-based learning.
(a) The workers' compensation division commission shall create a
classification and calculate a base premium tax rate for students
participating in an unpaid work-based learning experience off school
premises as a part of the school curriculum with employers other than
the county board of education. The workers' compensation division
commission shall report to the state department of education:
(1) The amount of the base premium tax rate for the class; and
(2) The amount of wages per student to be used to provide the
minimum weekly benefits required by section six, article four, chapter
twenty-three of this code.
(b) The state department of education shall communicate the
amount of the premium to the governor and Legislature by the first day
of December of each year, beginning the first day of December, one
thousand nine hundred ninety-nine.
(c) The base premium tax rate reported to the state department of
education shall be that which was published by the workers'
compensation division commission prior to the first day of the
immediately preceding July. That premium tax rate, however, shall not
be implemented by the workers' compensation division until the first
day of January and shall remain in effect through the last day of the
next December. The workers' compensation division commission shall
make no merit rate adjustment, as otherwise provided for in paragraph
(A), subdivision (1), subsection (a), section four, article two,
chapter twenty-three of this code, for the members of the class
required to be created by subsection (a) of this section.
(d) Notwithstanding anything to the contrary in any rules adopted
to implement the provisions of section four, article two, chapter twenty-three of this code and for the sole purposes of this section,
the workers' compensation division commission shall permit any county
board of education affected by this section to be classified in
accordance with this section and to be also classified as otherwise
required by any rules adopted to implement the provisions of section
four, article two, chapter twenty-three of this code.
(e) Subject to an appropriation by the Legislature, funds shall
be provided to the department of education to distribute to the county
boards. If the appropriation is less than the total premium
calculated, the county boards, individually, shall either reduce the
number of students participating in work-based learning experiences off
school premises or the county boards shall pay the difference between
the amount of the premium calculated by the workers' compensation
division commission and the amount allocated to the county board by the
department of education.
ARTICLE 10A. REHABILITATION SERVICES.
§18-10A-12a. Workers' compensation for clients participating in unpaid
work-based training programs.
(a) The workers' compensation division commission shall create a
classification and calculate a base premium tax rate for clients of the
division of rehabilitation services participating in unpaid work-based
training programs within integrated community-based settings. The
workers' compensation division commission shall report to the division
of rehabilitation services:
(1) The amount of the base premium tax rate for the class; and
(2) The hourly wages per client to be used to provide the minimum
weekly benefits required by section six, article four, chapter twenty-
three of this code.
(b) The base premium tax rate reported annually to the division
of rehabilitation services by the workers' compensation division
commission shall not be effective until the first day of July and shall
remain in effect through the last day of the next June.
(c) The division of rehabilitation services and the participating
entity shall be considered the joint employers of record of the clients while the clients are participating in unpaid work-based training
programs in integrated community-based settings: Provided, That the
participating entity shall not be held responsible for any liability
due the workers' compensation division commission. Such The clients
shall be considered to be paid the amount of wages sufficient to
provide the minimum workers' compensation weekly benefits required by
section six, article four, chapter twenty-three of this code.
ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY
REHABILITATION FUND ACT.
§18-10K-2. Board created, membership, terms, officers and staff.
(a) There is hereby established the West Virginia traumatic brain
and spinal cord injury rehabilitation fund board.
(b) The board shall consist of twenty-three members. The members
shall include:
(1) The secretary of the department of education and the arts, ex
officio, or his or her designee;
(2) The secretary of health and human resources, ex officio, or
his or her designee;
(3) The state superintendent of schools, ex officio, or his or
her designee;
(4) The secretary of the department of military affairs and
public safety, ex officio, or his or her designee;
(5) The director of the bureau of behavioral health within the
department of health and human resources, ex officio, or his or her
designee;
(6) The director of the division of rehabilitation services, ex
officio, or his or her designee;
(7) The director of the bureau of medical services, ex officio,
or his or her designee;
(8) The director of the office of emergency services, ex officio,
or his or her designee;
(9) The commissioner of the bureau of employment programs
executive director of the workers' compensation commission, ex officio,
or his or her designee;
(10) Seven members appointed by the governor to represent public
and private health organizations or other disability coalitions or
advisory groups; and
(11) Seven members appointed by the governor who are either
survivors of traumatic brain or spinal cord injury or family members
of persons with traumatic brain or spinal cord injury.
(c) The citizen members shall be appointed by the governor for
terms of three years, except that of the members first appointed, two
of the representatives of public and nonprofit private health
organizations, disability coalitions or advisory groups and two of the
representatives of survivors or family members of persons with
traumatic brain or spinal cord injuries shall serve for terms of one
year, two of the representatives of each of those respective groups
shall serve for terms of two years, and the remaining three
representatives of each of those respective groups shall serve for
terms of three years. All subsequent appointments shall be for three
years. Members shall serve until the expiration of the term for which
they have been appointed or until their successors have been appointed
and qualified. In the event of a vacancy, the governor shall appoint
a qualified person to serve for the unexpired term. No member may
serve more than two consecutive three-year terms. State officers or
employees may be appointed to the board unless otherwise prohibited by
law.
(d) In the event a board member fails to attend more than twenty-
five percent of the scheduled meetings in a twelve-month period, the
board may, after written notification to that member and the secretary
of education and the arts, request in writing that the governor remove
the member and appoint a new member to serve his or her unexpired term.
(e) The board shall elect from its membership a chairperson,
treasurer and secretary as well as any other officer as appropriate.
The term of the chairperson is for two years in duration and he or she
cannot serve more than two consecutive terms.
CHAPTER 21. LABOR.
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21-3A-3. Division of occupational safety and health; coordination of
activities with workers' compensation commission.
(a) There is hereby created continued in the labor department a
division of occupational safety and health comprised of a subdivision
for safety, a subdivision for health and such the other subdivisions
as the commissioner considers necessary. This division shall
administer all matters pertaining to occupational safety and
occupational health.
(b) The labor commissioner may require the assistance of other
state agencies and may enter into agreements with other state agencies
and political subdivisions of the state for the administration of this
chapter.
(c) The labor commissioner shall provide for coordination between
the division of occupational safety and health and the workers'
compensation commissioner commission including, but not limited to, the
establishment of standardized procedures and reportings.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§21A-1-4. Bureau of employment programs created; division; "bureau"
defined.
There is created continued an agency designated as the bureau of
employment programs, composed of a division of unemployment
compensation, a division of employment service, a division of job
training programs a division of workers' compensation, and such any
other divisions or units as that the commissioner determines to be are
necessary.
Wherever within this chapter, or in chapter twenty-three of this
code, the term "department", "bureau" or "fund" or "workers'
compensation fund" is used, it shall be taken to mean bureau of
employment programs unless otherwise indicated.
Notwithstanding the provisions of subdivisions (11) and (12),
subsection (d), section one, article two, chapter five-f of this code,
the division of employment security and the division of workers'
compensation programs are hereby consolidated in an agency designated as the bureau of employment programs. which the The bureau shall be
administered as part of the department of commerce, labor and
environmental resources created pursuant to subsection (b), section
one, article two, chapter five-f of this code of said section.
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT PROGRAMS.
§21A-2-6. Powers and duties generally.
The commissioner is the executive and administrative head of the
bureau and has the power and duty to:
(1) Exercise general supervision of for the governance of the
bureau and make propose rules for the government of the bureau
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to implement the requirements of
this chapter;
(2) Prescribe uniform rules pertaining to investigations,
departmental hearings and promulgate propose rules for promulgation;
(3) Supervise fiscal affairs and responsibilities of the bureau;
(4) Prescribe the qualifications of, appoint, remove and fix the
compensation of the officers and employees of the bureau, subject to
the provisions of section ten, article four of this chapter, relating
to the board of review;
(5) Organize and administer the bureau 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
law or regulation;
(6) Make reports in such the form and containing such information
as required by the United States department of labor may, from time to
time, require and comply with such provisions as any requirements that
the United States department of labor may, from time to time, find
finds necessary to assure the correctness and verification of such the
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
proceedings, record and file all bonds and contracts and assume
responsibility for the custody and preservation of all papers and
documents of the bureau;
(9) Sign and execute in the name of the state, by "The Bureau of
Employment Programs", 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;
(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;
(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 business, assure the establishment of
fair rules 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 The report shall be made available upon request to members of the
public and press;
(16) Provide at bureau expense a program of continuing
professional, technical and specialized instruction for the personnel
of the bureau;
(17) In addition to the authority granted to the commissioner by
section eighteen of this article and notwithstanding anything to the
contrary elsewhere in this code, utilize any attorney regularly
employed by the bureau or the office of the attorney general to
represent the commissioner, the bureau or any of its divisions in any matter. In addition, the commissioner, with the approval of the
compensation programs performance council, is authorized to retain
counsel for any purpose in the administration of this chapter or in the
administration of chapter twenty-three of this code relating to the
collection of any amounts due from employers to the bureau or any of
its divisions. The compensation programs performance council shall
solicit proposals from counsel who are interested in representing the
commissioner, the bureau or any of its divisions under the terms of
this subdivision. Thereafter, the compensation programs performance
council shall select such attorneys as it determines necessary to
pursue the collection objectives of this subdivision.
(A) Payment to any such retained counsel may either be by hourly
or other fixed fee, or as determined by the court or administrative law
judge as provided for below. A contingency fee payable from the amount
recovered by judgment or settlement for the commissioner, the bureau
or any of its divisions is only permitted, to the extent not prohibited
by federal law, when the assets of a defendant or respondent are
depleted so that a full recovery plus attorneys' fees is not possible.
(B) In the event that any collections action, other than a
collections action against a claimant, initiated either by retained
counsel or other counsel on behalf of the commissioner, the bureau or
any of its divisions results in a judgment or settlement in favor of
the commissioner, the bureau or any of its divisions, then the court
or, if there was no judicial component to the action, the
administrative law judge, shall determine the amount of attorneys' fees
that shall be paid by the defendants or respondents to the retained or
other counsel representing the commissioner, the bureau or any of its
divisions. If the court is to determine the amount of attorneys' fees,
it shall include in its determination the amount of fee that should be
paid for the representation of the commissioner, the bureau or its
divisions in pursuing the administrative component, if any, of the
action. The amount so paid shall be fixed by the court or the
administrative law judge in an amount no less than twenty percent of
its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
(i) The counsel's normal hourly rate or, if the counsel is an
employee of the bureau or is an employee of the office of the attorney
general, such hourly rate as the court or the administrative law judge
shall determine to be customary based upon the attorney's experience
and skill level;
(ii) The number of hours actually expended on the action;
(iii) The complexity of the issues involved in the action;
(iv) The degree of risk involved in the case with regard to the
probability of success or failure;
(v) The overhead costs incurred by counsel with regard to the use
of paralegals and other office staff, experts, and investigators; and
(vi) The public purpose served or public objective achieved by
the attorney in obtaining the judgment or settlement on behalf of the
commissioner, the bureau or any of its divisions.
(C) Notwithstanding the provisions of paragraph (B) of this
subdivision, if the commissioner, bureau or any of its divisions and
the defendants or respondents to any administrative or judicial action
settle the action, then the parties may negotiate a separate settlement
of attorneys' fees to be paid by the defendants or respondents above
and beyond the amount recovered by the commissioner, the bureau or any
its divisions. In the event that such a settlement of attorneys' fees
is made, it must be submitted to the court or administrative law judge
for approval.
(D) Any attorney regularly employed by the bureau or by the
office of the attorney general may not receive any remuneration for his
or her services other than such attorney's regular salary. Any
attorneys' fees awarded for such an employed attorney shall be payable
to the commissioner;
(18) (17) With the approval of the compensation programs
performance council created pursuant to section one, article three of
this chapter, to promulgate (A) Propose for promulgation rules under
which agencies of this state shall not grant, issue or renew any
contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose
account is in default with the commissioner with regard to the
administration of this chapter and with regard to the administration
of chapter twenty-three of this code. The term "agency" includes any
unit of state government such as officers, agencies, divisions,
departments, boards, commissions, authorities or public corporations.
An employing unit is not in default if it has entered into a repayment
agreements agreement with the appropriate divisions unemployment
compensation division of the bureau and remains in compliance with its
obligations under the repayment agreements agreement.
(B) The rules shall provide that, before granting, issuing or
renewing any contract, license, permit, certificate or other authority
to conduct a trade, profession or business to or with any employing
unit, the designated agencies shall review a list or lists provided by
the appropriate divisions of the bureau of employers that are in
default. If the employing unit's name is not on the list, the agency,
unless it has actual knowledge that the employing unit is in default
with a division of the bureau may grant, issue or renew the contract,
license, permit, certificate or other authority to conduct a trade,
profession or business. The list may be provided to the agency in the
form of a computerized database or databases that the agency can
access. Any objections to such the refusal to issue or renew shall be
reviewed under the appropriate provisions of this chapter or of chapter
twenty-three of this code, or both, whichever is applicable. The rules
provided for by this subdivision shall be promulgated pursuant to the
provisions of subdivisions (b) and (c), section seven, article three
of this chapter as if they were rules being promulgated for the
purposes of chapter twenty-three of this code article three, chapter
twenty-nine-a of this code. The prohibition against granting, issuing
or renewing any contract, license, permit, certificate or other
authority under this subdivision are not operative shall continue in
full force and effect until the revised rules are promulgated and are
in effect, except as provided in subdivision (6), section eight,
article three, chapter twenty-two or otherwise by law.
(C) The rules may be promulgated or implemented in phases so that
specific agencies or specific types of contracts, licenses, permits,
certificates or other authority to conduct trades, professions or
businesses will be subject to the rules beginning on different dates.
The presumptions of ownership or control contained in the division of
environmental protection's surface mining reclamation regulations
promulgated under the provisions of article three, chapter twenty-two
of this code are not applicable or controlling in determining the
identity of employing units who are in default for the purposes of this
subdivision. The rules shall also provide a procedure allowing any
agency or interested person, after being covered under the rules for
at least one year, to petition the council bureau of employment
programs to be exempt from the provisions of the rules. Rules
subjecting all applicable agencies and contracts, licenses, permits,
certificates or other authority to conduct trades, professions or
businesses to the requirements of this subdivision shall be that were
promulgated no later than prior to the first day of January July, two
thousand three, shall be revised and submitted for legislative review
no later than the first day of June, two thousand four; and
(19) (18) Deposit to the credit of the appropriate special
revenue account or fund, notwithstanding any other provision of this
code and to the extent allowed by federal law, all amounts of
delinquent payments or overpayments, interest and penalties thereon,
and attorneys' fees and costs collected under the provisions of this
chapter and chapter twenty-three of this code. The amounts collected
shall not be treated by the auditor or treasurer as part of the general
revenue of the state; and
(19) Enter into interagency agreements to assist in exchanging
information and fulfilling the provisions of this article.
§21A-2-6c. Payment withholding and interception.
(a) All state, county, district and municipal officers and agents
making contracts on behalf of the state of West Virginia or any
political subdivision thereof shall withhold payment in the final
settlement of such contracts until the receipt of a certificate from the commissioner to the effect that all payments, interest and
penalties thereon accrued against the contractor under this chapter and
under chapter twenty-three of this code have been paid or that
provisions satisfactory to the commissioner have been made for payment.
Any official violating this subsection is guilty of a misdemeanor and,
on conviction thereof, shall be fined not more than one thousand
dollars or county imprisoned confined in a county or regional jail for
not more than one year in the jail, or both fined and imprisoned
confined.
(b) Any agency of the state, for the limited purpose of
intercepting, pursuant to section sixteen, article five of this chapter
and pursuant to section five-a, of article two, chapter twenty-three
of this code, any payment by or through the state to an employer who
is in default in payment of contributions, premiums, deposits, interest
or penalties under the provisions of this chapter or of chapter twenty-
three of this code, shall assist the commissioner in collecting the
payment that is due. For this purpose, disclosure of joint delinquency
and default lists of employers with respect to unemployment
compensation and workers' compensation as provided in section one-c,
article one, chapter twenty-three of this code contributions, premiums,
interest, deposits or penalties is authorized. The bureau and the
workers' compensation commission may enter into an interagency
agreement to effect the provisions of this section. The lists may be
in the form of a computerized database to be accessed by the auditor,
the department of tax and revenue, the department of administration,
the division of highways or any other appropriate state agency or
officer.
§21A-2-13. Deputies.
For the original determination of claims under this chapter and
chapter twenty-three of this code, the commissioner shall appoint a
necessary number of deputies as his or her representatives.
ARTICLE 10. GENERAL PROVISIONS.
§21A-10-11. Reporting requirements and required information; use of
information; libel and slander actions prohibited.
(a) Each employer, including labor organizations as defined in subsection (i) of this section, shall, quarterly, submit certified
reports on or before the last day of the month next following the
calendar quarter, on forms to be prescribed by the commissioner. The
reports shall contain:
(1) The employer's assigned unemployment compensation
registration number, the employer's name and the address at which the
employer's payroll records are maintained;
(2) Each employee's social security account number, name, and the
gross wages paid to each employee, which shall include the first eight
thousand dollars of remuneration and all amounts in excess of such that
amount, notwithstanding subdivision (1), subsection (b), section
twenty-eight, article one-a of this chapter;
(3) The total gross wages paid within the quarter for employment,
which includes money wages and the cash value of other remuneration,
and shall include the first eight thousand dollars of remuneration paid
to each employee and all amounts in excess of such that amount,
notwithstanding subdivision (1), subsection (b), section twenty-eight,
article one-a of this chapter; and
(4) Other information as that is reasonably connected with the
administration of this chapter.
(b) Information thus obtained may not be published or be open to
public inspection so as to reveal the identity of the employing unit
or the individual.
(c) Notwithstanding the provisions of subsection (b) of this
section, the commissioner may provide information thus obtained to the
following governmental entities for purposes consistent with state and
federal laws:
(1) The United States department of agriculture;
(2) The state agency responsible for enforcement of the medicaid
program under Title XIX of the Social Security Act;
(3) The United States department of health and human services or
any state or federal program operating and approved under Title I,
Title II, Title X, Title XIV or Title XVI of the Social Security Act;
(4) Those agencies of state government responsible for economic
and community development; secondary, post-secondary and vocational education; vocational rehabilitation, employment and training,
including, but not limited to, the administration of the Perkins Act
and the Job Training and Partnership Act;
(5) The tax division, but only for the purposes of collection and
enforcement;
(6) The division of labor for purposes of enforcing the wage bond
and the contractor licensing provisions of chapter twenty-one of this
code;
(7) Any agency of this or any other state, or any federal agency,
charged with the administration of an unemployment compensation law or
the maintenance of a system of public employment offices;
(8) Any claimant for benefits or any other interested party to
the extent necessary for the proper presentation or defense of a claim;
and
(9) The division of workers' compensation commission for purposes
of collection and enforcement: Provided, That the division of workers'
compensation commission shall provide similar information to the other
divisions of the bureau of employment programs.
(d) The agencies or organizations which receive information under
subsection (c) of this section shall agree that the information shall
remain confidential so as not to reveal the identity of the employing
unit or the individual consistent with the provisions of this chapter.
(e) The commissioner may, before furnishing any information
permitted under this section, require that those who request the
information shall reimburse the bureau of employment programs for any
cost associated therewith for furnishing the information.
(f) The commissioner may refuse to provide any information
requested under this section if the agency or organization making the
request does not certify that it will comply with the state and federal
law protecting the confidentiality of the information.
(g) A person who violates the confidentiality provisions of this
section is guilty of a misdemeanor and, upon conviction thereof, shall
be fined not less than twenty dollars nor more than two hundred
dollars, or imprisoned confined in a county or regional jail not longer
than ninety days, or both.
(h) No action for slander or libel, either criminal or civil,
shall be predicated upon information furnished by any employer or any
employee to the commissioner in connection with the administration of
any of the provisions of this chapter.
(i) For purposes of subsection (a) of this section, the term
"labor organization" means any organization of any kind, or any agency
or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment or conditions of work. It includes
any entity, also known as a hiring hall, which is used by the
organization and an employer to carry out requirements described in 29
U. S. C. §158(f)(3) of an agreement between the organization and the
employer.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-8. Prohibition of surface mining without a permit; permit
requirements; successor in interest; duration of permits; proof
of insurance; termination of permits; permit fees.
No person may engage in surface-mining operations unless such
person he or she has first obtained a permit from the director in
accordance with the following:
(1) All permits issued pursuant to the requirements of this
article shall be issued for a term not to exceed five years: Provided,
That if the applicant demonstrates that a specified longer term is
reasonably needed to allow the applicant to obtain necessary financing
for equipment and the opening of the operation, and if the application
is full and complete for such the specified longer term, the director
may extend a permit for such a longer term: Provided, however, That
subject to the prior approval of the director, with such the approval
being subject to the provisions of subsection (c), section eighteen of
this article, a successor in interest to a permittee who applies for
a new permit, or transfer of a permit, within thirty days of succeeding
to such the interest, and who is able to obtain the bond coverage of the original permittee, may continue surface-mining and reclamation
operations according to the approved mining and reclamation plan of the
original permittee until such the successor's permit application or
application for transfer is granted or denied.
(2) Proof of insurance is required on an annual basis.
(3) A permit terminates if the permittee has not commenced the
surface-mining operations covered by such the permit within three years
of the date the permit was issued: Provided, That the director may
grant reasonable extensions of time upon a timely showing that such the
extensions are necessary by reason of litigation precluding such
commencement, or threatening substantial economic loss to the
permittee, or by reason of conditions beyond the control and without
the fault or negligence of the permittee: Provided, however, That with
respect to coal to be mined for use in a synthetic fuel facility or
specific major electric generating facility, the permittee shall be
deemed considered to have commenced surface-mining operations at such
the time as the construction of the synthetic fuel or generating
facility is initiated.
(4) Each application for a new surface-mining permit filed
pursuant to this article shall be accompanied by a fee of one thousand
dollars. All permit fees and renewal fees provided for in this section
or elsewhere in this article shall be collected by the director and
deposited with the treasurer of the state of West Virginia to the
credit of the operating permit fees fund and shall be used, upon
requisition of the director, for the administration of this article.
(5) Prior to the issuance of any permit, the director shall
ascertain from the commissioner of the division of labor whether the
applicant is in compliance with section fourteen, article five, chapter
twenty-one of this code. Upon issuance of the permit, the director
shall forward a copy to the commissioner of the division of labor, who
shall assure continued compliance under such the permit.
(6) (A) Prior to the issuance of any permit the director shall
ascertain from the commissioner of the bureau of employment programs
and the executive director of the workers' compensation commission
whether the applicant is in compliance with the provisions of section six-c, article two, chapter twenty-one-a of this code and section five,
article two, chapter twenty-three of this code with regard to any
required subscription to the unemployment compensation fund or to the
workers' compensation fund, the payment of premiums and other charges
to the fund, the timely filing of payroll reports and the maintenance
of an adequate premium deposit deposits. If the applicant is
delinquent or defaulted, or has been terminated by the bureau or the
commission, then the permit shall not be issued until the applicant
returns to compliance or is restored by the workers' compensation
division bureau or the commission under a reinstatement agreement:
Provided, That in all such inquiries the commissioner of the bureau of
employment programs and the executive director of the workers'
compensation commission shall make response to the division of
environmental protection within fifteen calendar days; otherwise,
failure to respond timely shall be is considered to indicate the
applicant is in compliance and such the failure will not be used to
preclude issuance of the permit.
(B) It is a requirement of this article that each operator
maintain continued compliance with the provisions of section five,
article two, chapter twenty-three and section six-c, article two,
chapter twenty-one-a of this code and provide proof of compliance to
the director on a annual quarterly basis.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
(a) The commissioner of the bureau of employment programs
appointed under the provisions of section one, article two, chapter
twenty-one-a of this code, has the sole responsibility for the
administration of this chapter except for such matters as are entrusted
to the compensation programs performance council created pursuant to
section one, article three, chapter twenty-one-a of this code. In the
administration of this chapter, the commissioner shall exercise all the
powers and duties described in this chapter and in article two, chapter
twenty-one-a of this code.
(b) The commissioner is authorized to promulgate rules and regulations to implement the provisions of this chapter.
(c) The commissioner shall have an official seal for the
authentication of orders and proceedings, upon which seal shall be
engraved the words "West Virginia Commissioner of Employment Programs"
and such other design as the commissioner may prescribe. The courts in
this state shall take judicial notice of the seal of the commissioner
and in all cases copies of orders, proceedings or records in the office
of the West Virginia commissioner of employment programs shall be equal
to the original in evidence.
(d) Pursuant to the provisions of article ten, chapter four of
this code, the commissioner of the bureau of employment programs shall
continue to administer this chapter until the first day of July, two
thousand four.
(e) The attorney general shall perform all legal services
required by the commissioner under the provisions of this chapter:
Provided, That in any case in which an application for review is
prosecuted from any final decision of the workers' compensation appeal
board to the supreme court of appeals, as provided by section four,
article five of this chapter, or in any court proceeding before the
workers' compensation appeal board, or in any proceedings before the
office of judges, or in any case in which a petition for an
extraordinary writ is filed in the supreme court of appeals or in any
circuit court, in which such representation shall appear to the
commissioner to be desirable, the commissioner may designate a regular
employee of this office, qualified to practice before such court to
represent the commissioner upon such appeal or proceeding, and in no
case shall the person so appearing for the commissioner before the
court receive remuneration therefor other than such person's regular
salary.
(a) The Legislature finds that a deficit exists in the workers'
compensation fund of such critical proportions that it constitutes an
imminent threat to the immediate and long-term solvency of the fund.
The Legislature further finds that addressing the workers' compensation
crisis requires the efforts of all persons and entities involved.
Modification to the rate system, alteration of the benefit structure, improvement of current management practices and changes in perception
must be merged into a unified effort to make the workers' compensation
system viable and solvent. It is the intent of the Legislature that
the amendments to this chapter enacted in the year two thousand three
be applied from the date upon which the enactment is made effective by
the Legislature. The Legislature finds that an emergency exists as a
result of the combined effect of this deficit, other state budgetary
deficits and liabilities, and other grave social and economic
circumstances currently confronting the state, and that unless the
changes provided by the enactment of the amendments to this chapter,
as well as other legislation designed to address the problem are made
effective immediately, the fiscal stability of this state will suffer
irreparable harm. Accordingly, the Legislature finds that the need of
the citizens of this state for the protection of the state treasury and
the solvency of the workers' compensation funds requires the
limitations on any expectations that may have arisen from prior
enactments of this chapter.
(b) It is the further intent of the Legislature that this chapter
be interpreted so as to assure the quick and efficient delivery of
indemnity and medical benefits to injured workers at a reasonable cost
to the employers who are subject to the provisions of this chapter.
It is the specific intent of the Legislature that workers' compensation
cases shall be decided on their merits and that a rule of "liberal
construction" based on any "remedial" basis of workers' compensation
legislation shall not affect the weighing of evidence in resolving such
cases. The workers' compensation system in this state is based on a
mutual renunciation of common law rights and defenses by employers and
employees alike. Employees' rights to sue for damages over and above
medical and health care benefits and wage loss benefits are to a
certain degree limited by the provisions of this chapter, and
employers' rights to raise common law defenses such as lack of
negligence, contributory negligence on the part of the employee, and
others, are curtailed as well. Accordingly, the Legislature hereby
declares that any remedial component of the workers' compensation laws
is not to cause the workers' compensation laws to receive liberal construction that alters in any way the proper weighing of evidence as
required by section one-g, article four of this chapter.
(c) The "workers' compensation division of the bureau of
employment programs" is, on or after the first day of July, two
thousand three, reestablished, reconstituted and continued as the
workers' compensation commission, an agency of the state. The purpose
of the commission is to ensure the fair, efficient and financially
stable administration of the workers' compensation system of the state
of West Virginia. The powers and duties heretofore imposed upon the
workers' compensation division and the commissioner of the bureau of
employment programs as they relate to workers' compensation are hereby
transferred to and imposed upon the workers' compensation commission
and its executive director in the manner prescribed by this chapter.
§23-1-1a. Workers' compensation board of managers; appointment;
composition; qualifications; terms; chairperson; meetings and
quorum; compensation and travel expenses; powers and duties.
(a) On the effective date of the enactment of this section in two
thousand three, the compensation programs performance council
heretofore established in article three, chapter twenty-one-a of this
code is hereby abolished and there is hereby created the "workers'
compensation board of managers," which may also be referred to as "the
board of managers" or "the board."
(b)(1) The board shall consist of eleven voting members as
follows:
(A) The governor or his or her designee;
(B) The chief executive officer of the West Virginia investment
management board; if required to attend more than one meeting per
month, he or she may send a designee to the additional meetings;
(C) The executive director of the West Virginia development
office; if required to attend more than one meeting per month, he or
she may send a designee to the additional meetings; and
(D) Eight members appointed by the governor with the advice and
consent of the Senate who meet the requirements and qualifications
prescribed in subsections (c) and (d) of this section: Provided, That
the members serving on the compensation programs performance council heretofore established in article three, chapter twenty-one-a of this
code on the effective date of the enactment of this section in two
thousand three, are hereby appointed as members of the board of
managers subject to the provisions of subdivision (1), subsection (c)
of this section.
(2) Two members of the West Virginia Senate and two members of
the West Virginia House of Delegate shall serve as advisory members of
the board, and are not voting members. The governor shall appoint the
legislative members to the board. No more than three of the
legislative members may be of the same political party.
(c)(1) The initial eight appointed voting members of the board of
managers shall consist of the members appointed under the provisions
of paragraph (D), subdivision (1), subsection (a) of this section and
the remaining members appointed pursuant to the provisions of
subsection (d) of this section. The term of each of the initial
appointed members shall expire on the thirty-first day of December, two
thousand four.
(2) Eight members shall be appointed by the governor with the
advice and consent of the Senate for terms that begin the first day of
January, two thousand five and expire as follows:
Two members shall be appointed for a term ending the thirtieth
day of June, two thousand six;
Three members shall be appointed for a term ending the thirtieth
day of June, two thousand seven; and
Three members shall be appointed for a term ending the thirtieth
day of June, two thousand eight.
(3) Except for appointments to fill vacancies, each subsequent
appointment shall be for a term ending the thirtieth day of June of the
fourth year following the year the preceding term expired. In the
event a vacancy occurs it shall be filled by appointment for the
unexpired term. A member whose term has expired shall continue in
office until a successor has been duly appointed and qualified. No
member of the board may be removed from office by the governor except
for official misconduct, incompetency, neglect of duty or gross
immorality.
(4) No appointed member may be a candidate for or hold elected
office. Members may be reappointed for no more than two full terms.
(d) Except for those initially appointed under the provisions of
paragraph (D), subdivision (1), subsection (a) of this section, each
of the appointed voting members of the board shall be appointed based
upon his or her demonstrated knowledge and experience to effectively
accomplish the purposes of this chapter. They shall meet the minimum
qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited
college or university: Provided, That no more than two of the
appointed voting members may serve without a baccalaureate degree from
an accredited college or university if the member has a minimum of
fifteen years experience in his or her field of expertise as required
in subdivision (2) of this subsection;
(2) Each shall have a minimum of ten years experience in his or
her field of expertise. The governor shall consider the following
guidelines when determining whether potential candidates meet the
qualifications of this subsection: expertise in insurance claims
management; expertise in insurance underwriting; expertise in the
financial management of pensions or insurance plans; expertise as a
trustee of pension or trust funds of more than two hundred
beneficiaries or three hundred million dollars; expertise in workers'
compensation management; expertise in loss prevention and
rehabilitation; expertise in occupational medicine demonstrated by
licensure as a medical doctor in West Virginia and experience, board
certification or university affiliation; or expertise in similar areas
of endeavor.
(3) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at least
one shall be an attorney with financial management experience; and one
shall be an academician holding an advanced degree from an accredited
college or university in business, finance, insurance or economics.
(e) Each member of the board shall have a fiduciary
responsibility to the commission and all workers' compensation funds
and shall assure the proper administration of the funds in a fiscally responsible manner.
(f) The board shall elect one member to serve as chairperson.
The chairperson shall serve for a one year term and may serve more than
one consecutive term. The board shall hold meetings at the request of
the chairperson or at the request of at least three of the members of
the board, but no less frequently than once every three months. The
chairperson shall determine the date and time of each meeting. Six
members of the board constitute a quorum for the conduct of the
business of the board. No vacancy in the membership of the board shall
impair the right of a quorum to exercise all the rights and perform all
the duties of the board. No action shall be taken by the board except
upon the affirmative vote of six members of the board.
(g) Notwithstanding any provision of article seven, chapter six
of this code to the contrary, the board shall establish the salary of
the executive director. The board shall establish a set of performance
measurements to evaluate the performance of the executive director in
fulfilling his or her duties as prescribed in this chapter and shall
annually rate the executive director's performance according to the
established measurements and may adjust his or her annual salary in
accordance with that performance rating.
(h) In addition to actual travel expenses incurred in the
performance of his or her duties, each voting appointed member of the
board shall receive not more than five hundred dollars for each meeting
where he or she is required to and does attend.
(i) Each member of the board shall be provided appropriate
liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the state board of
risk and insurance management established pursuant to article twelve,
chapter twenty-nine of this code.
(j) The board of managers shall:
(1) Review and approve, reject or modify recommendations from the
executive director for the development of overall policy for the
administration of this chapter;
(2) In consultation with the executive director, propose
legislation and establish operating guidelines and policies designed to ensure the effective administration and financial viability of the
workers' compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are proposed
by the executive director for operation of the workers' compensation
system before the rules are filed with the secretary of state. The
rules adopted by the board are not subject to sections nine through
sixteen, article three, chapter twenty-nine-a of this code. The board
shall follow the remaining provisions of chapter twenty-nine-a of this
code for giving notice to the public of their actions and for holding
hearings and receiving public comments on the rules;
(4) In accordance with the laws, rules and regulations of West
Virginia and the United States government, establish and monitor
performance standards and measurements to ensure the timeliness and
accuracy of activities performed under the workers' compensation laws
and rules;
(5) Review and approve, reject or modify all classifications of
occupations or industries, premium rates and taxes, administrative
charges, rules and systems of rating, rating plans, rate revisions,
deficit management and deficit reduction assessments, and merit rating
for employers covered by this chapter. The executive director shall
provide all information required for the board's review;
(6) In conjunction with the executive director initiate, oversee,
and review all independent financial and actuarial reviews of the
commission. The board shall employ an internal auditor for the purpose
of examining internal compliance with the provisions of this chapter.
The internal auditor shall be employed directly by the board;
(7) Approve the allocation of sufficient administrative resources
and funding to efficiently operate the workers' compensation system of
West Virginia. To assure efficient operation, the board shall direct
the development of a plan for the collections performed under section
five-a, article two of this chapter. The plan for collections shall
maximize ratio of dollars potentially realized by the collection
proceeding to the dollars invested in collection activity;
(8) Review and approve, reject or modify the budget prepared by
the executive director for the operation of the commission. The budget shall include estimates of the costs and necessary expenditures of the
commission in the discharge of all duties imposed by this chapter as
well as the cost of providing offices, furniture, equipment and
supplies to all commission officers and employees;
(9) In consultation with the executive director, approve the
designation of health care providers to make decisions for the
commission regarding appropriateness of medical services;
(10) Require the workers' compensation commission to develop,
maintain and use an effective program of return to work services for
employers and workers;
(11) Require the workers' compensation commission to develop,
maintain and use thorough and efficient claims management procedures
and processes and fund management in accordance with the generally
accepted practices of the workers' compensation insurance industry;
(12) Consider such other matters regarding the workers'
compensation system as the governor, executive director or any member
of the board may desire;
(13) Review and approve, reject or modify standards recommended
by the executive director to be considered by the commission in making
decisions on all levels of disability awards. The standards should be
established as an effective means to make prompt, appropriate decisions
relating to medical care and methods to assist employees to return to
work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Employ sufficient professional and clerical staff to carry
out the duties of the board. Employees of the board shall serve at
the will and pleasure of the board. The board's employees are exempt
from the salary schedule or pay plan adopted by the division of
personnel; and
(17) Study the feasability of, and provide a plan for,
privatizing the workers' compensation system of this state; the effect,
if any, of attorneys fees on the cost of administering the workers'
compensation system; the extent to which fraud or abuse on the part of
employees, employers, providers and others have an effect on the cost
of administering the workers' compensation system; the extent, if any, that the rates and amounts of disability awards exceed the rates and
amounts of such awards in other states and the comparative desirability
of alternative permanent disability administration in those other
states; and alternative deficit management strategies, including non-
traditional funding. On or before the first day of January, two
thousand six, the commission shall report the findings and conclusions
of each study and any recommendations the commission may have as a
result of the study to the joint committee on government and finance.
§23-1-1b. Executive director; qualifications; oath; seal; removal;
powers and duties.
(a) The executive director shall be hired by the board of
managers for a term not to exceed five years and may be retained based
on overall performance for additional terms: Provided, That the
executive director of the division of workers' compensation on the date
of the enactment of this section in the year two thousand three shall
serve as the initial executive director of the commission. The
position of executive director shall be full-time employment. Except
for the initial executive director, candidates for the position of
executive director shall have a minimum of a bachelor of arts or
science degree from an accredited four-year college or university in
one or more of the following disciplines: Finance; economics;
insurance administration; law; public administration; accounting; or
business administration. Candidates for the position of executive
director will be considered based on their demonstrated education,
knowledge and a minimum of ten years' experience in the areas of
workers' compensation, insurance company management, administrative and
management experience with an organization comparable in size to the
workers' compensation commission, or any relevant experience which
demonstrates an ability to effectively accomplish the purposes of this
chapter.
(b) The executive director shall not be a candidate for or hold
any other public office or trust, nor shall he or she be a member of
a political committee. If he or she becomes a candidate for a public
office or becomes a member of a political committee, his or her office
as executive director shall be immediately vacated.
(c) The executive director, before entering upon the duties of
his or her office, shall take and subscribe to the oath prescribed by
section five, article IV of the state constitution. The oath shall be
filed with the secretary of state.
(d) The executive director shall have an official seal for the
authentication of orders and proceedings, upon which seal shall be
engraved the words "West Virginia Workers' Compensation Commission" and
any other design prescribed by the board of managers. The courts in
this state shall take judicial notice of the seal of the commission and
in all cases copies of orders, proceedings or records in the office of
the West Virginia workers' compensation commission are equal to the
original in evidence.
(e) The executive director shall not be a member of the board of
managers.
(f) The executive director shall serve until the expiration of
his or her term, resignation or until removed by a majority vote of the
full board of managers. The board of managers and the executive
director may, by agreement, terminate the term of employment at any
time.
(g) The executive director shall have overall management
responsibility and administrative control and supervision within the
workers' compensation commission and has the power and duty to:
(1) Establish, with the approval of the board of managers, the
overall administrative policy of the commission for the purposes of
this chapter;
(2) Employ, direct and supervise all employees required in the
connection with the performance of the duties assigned to the
commission by this chapter and fix the compensation of the employees
in accordance with the provisions of article six, chapter twenty-nine
of this code: Provided, That the executive director shall identify
which members of the staff of the workers' compensation commission
shall be exempted from the salary schedules or pay plan adopted by the
state personnel board, and further identify such staff members by job
classification or designation, together with the salary or salary
ranges for each such job classification or designation and shall file this information with the director of the division of personnel no
later than the last day of September, two thousand three, and
thereafter as changes are made or at least annually;
(3) Reorganize the work of the commission, its divisions,
sections, and offices to the extent necessary to achieve the most
efficient performance of its functions. All persons employed by the
workers' compensation division in positions that were formerly
supervised and directed by the commissioner of the bureau of employment
programs under chapter twenty-one-a of this code are hereby assigned
and transferred in their respective classifications to the workers'
compensation commission on the effective date of the enactment of this
section in the year two thousand three. Further, the executive
director may select persons that are employed by the bureau of
employment programs on the effective date of the enactment of this
section in the year two thousand three to be assigned and transferred
to the workers' compensation commission in their respective
classifications, such assignment and transfer to take effect no later
than the last day of September, two thousand three. Employees in the
classified service who have gained permanent status as of the effective
date of this article will not be subject to further qualifying
examination in their respective classifications by reason of any
transfer required by the provisions of this subdivision. Due to the
emergency currently existing at the commission and the urgent need to
develop fast, efficient claims processing, management and
administration, the executive director is hereby granted authority to
reorganize internal functions and operations and to delegate, assign,
transfer, combine, establish, eliminate, and consolidate
responsibilities and duties to and among the positions transferred
under the authority of this subdivision. The division of personnel
shall cooperate fully by assisting in all personnel activities
necessary to expedite all changes for the commission. Nothing
contained in this subdivision shall be construed to either abridge the
rights of employees within the classified service of the state to the
procedures and protections set forth in article six, chapter twenty-
nine of this code, or to preclude the reclassification or reallocation of positions in accordance with procedures set forth in article six,
chapter twenty-nine of this code.
(4) Exempt no more than twenty-five of any of the newly created
positions from the classified service of the state, the employees of
which positions shall serve at the will and pleasure of the executive
director. The executive director shall report all exemptions made
under this subdivision to the director of the division of personnel no
later than the first day of July, two thousand three, and thereafter
as the executive director determines to be necessary;
(5) With the advice and approval of the board of managers,
propose operating guidelines and policies to standardize
administration, expedite commission business and promote the efficiency
of the services provided by the commission;
(6) Prepare and submit to the board of managers information the
board requires for classifications of occupations or industries; the
basis for premium rates, taxes, surcharges and assessment for
administrative charges, for assessments related to loss experience, for
assessments of prospective risk exposure, for assessments of deficit
management and deficit reduction costs incurred, for other deficit
management and deficit reduction assessments, for rules and systems of
rating, rate revisions and merit rating for employers covered by this
chapter; and information regarding the extent, degree and amount of
subsidization between the classifications. The executive director
shall obtain, prepare and submit any other information the board of
managers requires for the prompt and efficient discharge of its duties;
(7) Keep accurate and complete accounts and records necessary to
the collection, administration and distribution of the workers'
compensation funds;
(8) Sign and execute in the name of the state, by "The Workers'
Compensation Commission", any contract or agreement;
(9) Make recommendations and an annual report to the governor
concerning the condition, operation and functioning of the commission;
(10) Invoke any legal or special remedy for the enforcement of
orders or the provisions of this chapter;
(11) Prepare and submit for approval to the board of managers a budget for each fiscal year, including estimates of the costs and
necessary expenditures of the commission in the discharge of all duties
imposed by this chapter as well as the costs of furnishing office space
to the officers and employees of the commission;
(12) Ensure that all employees of the commission follow the
orders, operating guidelines and policies of the commission as they
relate to the commission's overall policy-making, management and
adjudicatory duties under this chapter;
(13) Delegate all powers and duties vested in the executive
director to his or her appointees and employees; but the executive
director is responsible for their acts;
(14) Provide at commission expense a program of continuing
professional, technical and specialized instruction for the personnel
of the commission. The executive director shall consult with and
report at least annually to the legislative oversight commission on
workforce investment for economic development to obtain the most
appropriate training using all available resources;
(15) (A) Contract or employ counsel to perform all legal services
for the commission including, but not limited to, representing the
executive director, board of managers and commission in any
administrative proceeding and in any state or federal court.
Additionally, the commission may, but shall not be required to, call
upon the attorney general for legal assistance and representation as
provided by law. The attorney general shall not approve or exercise
authority over in-house counsel or contract counsel hired pursuant to
this section.
(B) In addition to the authority granted by this section to the
executive director and notwithstanding any provision to the contrary
elsewhere in this code, use any attorney regularly employed by the
commission or the office of the attorney general to represent the
commission, the executive director or the board of managers in any
matter arising from the performance of its duties or the execution of
its powers under this chapter. In addition, the executive director,
with the approval of the board of managers, may retain counsel for any
purpose in the administration of this chapter relating to the collection of any amounts due from employers to the commission:
Provided, That the allocation of resources for the purpose of any
collections shall be pursuant to the plan developed by the board of
managers. The board of managers shall solicit proposals from counsel
who are interested in representing the commission under the terms of
this subdivision. Thereafter, the board of managers shall select any
attorneys it determines necessary to pursue the collection objectives
of this subdivision:
(i) Payment to retained counsel may either be hourly or by other
fixed fee, or as determined by the court or administrative law judge
as provided for in this section. A contingency fee payable from the
amount recovered by judgment or settlement for the commission is only
permitted, to the extent not prohibited by federal law, when the assets
of a defendant or respondent are depleted so that a full recovery plus
attorneys' fees is not possible;
(ii) In the event that any collections action, other than a
collections action against a claimant, initiated either by retained
counsel or other counsel on behalf of the commission results in a
judgment or settlement in favor of the commission, the court or, if
there was no judicial component to the action, the administrative law
judge, shall determine the amount of attorneys' fees that shall be paid
by the defendants or respondents to the retained or other counsel
representing the commission. If the court is to determine the amount
of attorneys' fees, it shall include in its determination the amount
of fee that should be paid for the representation of the commission in
pursuing the administrative component, if any, of the action. The
amount so paid shall be fixed by the court or the administrative law
judge in an amount no less than twenty percent of its recovery. Any
additional amount of attorneys' fees shall be determined by use of the
following factors:
(I) The counsel's normal hourly rate or, if the counsel is an
employee of the commission or is an employee of the office of the
attorney general, an hourly rate the court or the administrative law
judge determines to be customary based upon the attorney's experience
and skill level;
(II) The number of hours actually expended on the action;
(III) The complexity of the issues involved in the action;
(IV) The degree of risk involved in the case with regard to the
probability of success or failure;
(V) The overhead costs incurred by counsel with regard to the use
of paralegals and other office staff, experts and investigators; and
(VI) The public purpose served or public objective achieved by
the attorney in obtaining the judgment or settlement on behalf of the
commission.
(iii) Notwithstanding the provisions of paragraph (B) of this
subdivision, if the commission and the defendants or respondents to any
administrative or judicial action settle the action, the parties may
negotiate a separate settlement of attorneys' fees to be paid by the
defendants or respondents above and beyond the amount recovered by the
commission. In the event that a settlement of attorneys' fees is made,
it must be submitted to the court or administrative law judge for
approval;
(iv) Any attorney regularly employed by the commission or by the
office of the attorney general may not receive any remuneration for his
or her services other than the attorney's regular salary. Any
attorneys' fees awarded for an employed attorney are payable to the
commission;
(16) Propose rules for promulgation by the board of managers
under which agencies of this state shall revoke or refuse to grant,
issue or renew any contract, license, permit, certificate or other
authority to conduct a trade, profession or business to or with any
employing unit whose account is in default with the commission with
regard to the administration of this chapter. The term "agency"
includes any unit of state government such as officers, agencies,
divisions, departments, boards, commissions, authorities or public
corporations. An employing unit is not in default if it has entered
into a repayment agreement with the commission and remains in
compliance with its obligations under the repayment agreements.
(A) The rules shall provide that, before granting, issuing or
renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing
unit, the designated agencies shall review a list or lists provided by
the commission of employers that are in default. If the employing
unit's name is not on the list, the agency, unless it has actual
knowledge that the employing unit is in default with the commission,
may grant, issue or renew the contract, license, permit, certificate
or other authority to conduct a trade, profession or business. The
list may be provided to the agency in the form of a computerized
database or databases that the agency can access. Any objections to
the refusal to issue or renew shall be reviewed under the appropriate
provisions of this chapter. The prohibition against granting, issuing
or renewing any contract, license, permit, certificate or other
authority under this subdivision shall remain in full force and effect
as promulgated under section six, article two, chapter twenty-one-a of
this code until the rules required by this subsection are promulgated
and in effect.
(B) The rules shall also provide a procedure allowing any agency
or interested person, after being covered under the rules for at least
one year, to petition the commission to be exempt from the provisions
of the rules;
(17) Deposit to the credit of the appropriate special revenue
account or fund, notwithstanding any other provision of this code and
to the extent allowed by federal law, all amounts of delinquent
payments or overpayments, interest and penalties thereon, and
attorneys' fees and costs collected under the provisions of this
chapter. The amounts collected shall not be treated by the auditor or
treasurer as part of the general revenue of the state;
(18) Recommend for approval of the board of managers rules for
the administration of claims management by self-insured employers and
third-party administrators including regulation and sanctions for the
rejection of claims and for maintaining claim records and ensuring
access to all claim records by interested claimants, claimant
representatives, the commission and the office of judges;
(19) Recommend for approval of the board of managers, rules to
eliminate the ability of an employer to avoid an experience modification factor by virtue of a reorganization of a business;
(20) Submit for approval of the board of managers rules setting
forth procedures for auditing and investigating employers, including
programs of self-insured employers and third-party administrators,
employees, health care providers and medical and vocational
rehabilitation service providers;
(21) Regularly audit and monitor programs established by self-
insured or third-party administrators under this chapter to ensure
compliance with the commission's rules and the law;
(22) Establish and maintain a fraud and abuse investigation and
prosecution unit. This unit has the responsibility and authority for
investigating and controlling fraud and abuse of the workers'
compensation system of the state of West Virginia. The fraud and abuse
unit shall be under the supervision of an inspector general, who shall
be appointed by the executive director of the workers' compensation
commission.
(A) The inspector general shall, with the consent and advice of
the executive director, employ all personnel as necessary for the
institution, development and finalization of procedures and
investigations which serve to ensure that only necessary and proper
workers' compensation benefits and expenses are paid to or on behalf
of injured employees and to insure employers subscribe to and pay the
proper premium to the West Virginia workers' compensation commission.
Qualification, compensation and personnel practice relating to the
employees of the fraud and abuse unit, including that of the position
of inspector general, shall be governed by the provisions of the
statutes, rules and regulations of the classified service pursuant to
article six, chapter twenty-nine of this code. The inspector general
shall supervise all personnel, which collectively shall be referred to
in this chapter as the fraud and abuse unit.
(B) The fraud and abuse unit shall have the following powers and
duties:
(i) the fraud and abuse unit will be responsible for the
initiation, development, review, and proposal for promulgation by the
board of managers of rules regarding the existence of fraud and abuse as it relates to the workers' compensation system in West Virginia;
(ii) the fraud and abuse unit will take action to identify and
prevent and discourage any and all fraud and abuse;
(iii) the fraud and abuse unit, in cases of criminal fraud, has
the authority to review and prosecute those cases for violations of
sections twenty-four-e, twenty-four-f, twenty-four-g and twenty-four-h,
article three, chapter sixty-one of this code, as well as any other
criminal statutes that may be applicable. In addition the fraud and
abuse unit not only has the authority to prosecute and refer cases
involving criminal fraud to appropriate state authorities for
prosecution, but it also has the authority, and is encouraged, to
cooperate with the appropriate federal authorities for review and
possible prosecution, by either state or federal agencies, of cases
involving criminal fraud concerning the workers' compensation system
in West Virginia;
(iv) The fraud and abuse unit, in cases which do not meet the
definition of criminal fraud, but would meet a reasonable person's
definition of an abuse of the workers' compensation system, shall take
the appropriate action to discourage and prevent such abuse.
Furthermore, the fraud and abuse unit shall assist the commission to
develop evidence of fraud or abuse which can be used pursuant to the
provisions of this chapter to suspend, and where appropriate,
terminate, a claimant's benefits. In addition, evidence developed
pursuant to these provisions can be used in hearings before the office
of judges on protests to commission decisions terminating, or not
terminating, temporary total disability benefits; and
(v) The fraud and abuse unit, is expressly authorized to initiate
investigations and participate in the development of, and if necessary,
the prosecution of any health care provider, including a provider of
rehabilitation services, alleged to have violated the provisions of
section three-c, article four of this chapter.
(C) Specific personnel, designated by the inspector general,
shall be permitted to operate vehicles owned or leased for the state
displaying Class A registration plates.
(D) Notwithstanding any provision of this code to the contrary, specific personnel designated by the inspector general may carry
handguns in the course of their official duties after meeting
specialized qualifications established by the governor's committee on
crime, delinquency and correction, which qualifications shall include
the successful completion of handgun training provided to law-
enforcement officers by the West Virginia state police: Provided, That
nothing in this subsection shall be construed to include the personnel
so designated by the inspector general to carry handguns within the
meaning of the term law-enforcement official as defined in section one,
article twenty-nine, chapter thirty of this code.
(E) The fraud and abuse unit is not subject to any requirement of
article nine-a, chapter six of this code, and the investigations
conducted by the fraud and abuse unit and the materials placed in the
files of the unit as a result of any such investigation are exempt from
public disclosure under the provisions of chapter twenty-nine-b of this
code.
(F) In the event that a final judicial decision adjudges that the
statewide prosecutorial powers vested by this subdivision in the fraud
and abuse unit may only be exercised by a public official other than
an employee of the fraud and abuse unit, then to that extent the
provisions of this subdivision vesting statewide prosecutorial power
shall thenceforth be of no force and effect, the remaining provisions
of this subdivision shall continue in full force and effect, and
prosecutions hereunder may only be exercised by the prosecuting
attorneys of this state and their assistants or special assistant
prosecuting attorneys appointed as provided by law.
(23) Enter into interagency agreements to assist in exchanging
information and fulfilling the default provisions of this chapter;
(24) Notwithstanding any provision of this code to the contrary,
the executive director, under emergency authorization:
(A) May expend up to fifty thousand dollars for purchases of and
may contract for goods and services without securing competitive bids.
This emergency spending authority expires on the first day of July, two
thousand five; and
(B) May expend such sums as the executive director determines are necessary for professional services, contracts for the purchase of an
automated claims administration system and associated computer hardware
and software in the administration of claims for benefits made under
provisions of this chapter, and contracts for technical services and
related services necessary to develop, implement and maintain the
system and associated computer hardware and software. The provisions
of article three, chapter five-a of this code, relating to the
purchasing division of the department administration, shall not apply
to these contracts. The director shall award the contract or contracts
on a competitive basis. This emergency spending authority expires on
the thirty-first day of December, two thousand six;
(25) Establish an employer violator system to identify
individuals and employers who are in default or are delinquent on any
premium, assessment, surcharge, tax or penalty owed to the commission.
The employer violator system shall prohibit violators who own, control
or have an ownership interest, as defined by the commission, in any
company from obtaining or maintaining any license, certificate or
permit issued by the state until the violator has paid all moneys owed
to the commission or has entered into and remains in compliance with
a repayment agreement;
(26) Propose the designation of health care providers to make
decisions for the commission regarding appropriateness of medical
services; and
(27) Study the correlation between premium tax merit rating for
employers and the safety performance of employers. This study shall
be completed prior to first day of July, two thousand four, and the
results thereof provided to the board of managers.
§23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and agents
making contracts on behalf of the state of West Virginia or any
political subdivision thereof shall withhold payment in the final
settlement of contracts until the receipt of a certificate from the
commission to the effect that all payments, interest and penalties
thereon accrued against the contractor under this chapter have been
paid or that provisions satisfactory to the commission have been made for payment. Any official violating this subsection is guilty of a
misdemeanor and, on conviction thereof, shall be fined not more than
one thousand dollars or confined in the county or regional jail for not
more than one year, or both fined and confined.
(b) Any agency of the state, for the limited purpose of
intercepting, pursuant to section five-a, article two, chapter twenty-
three of this code, any payment by or through the state to an employer
who is in default in payment of contributions, premiums, deposits,
interest or penalties under the provisions of this chapter, shall
assist the commission in collecting the payment that is due. For this
purpose, disclosure of joint delinquency and default lists of employers
with respect to unemployment compensation as provided in section six-c,
article one, chapter twenty-one-a of this code and workers'
compensation contributions, premiums, interest, deposits or penalties
is authorized. The commission and the bureau of employment programs
may enter into an interagency agreement to effect the provisions of
this section. The lists may be in the form of a computerized database
to be accessed by the auditor, the department of tax and revenue, the
department of administration, the division of highways or other
appropriate state agency or officer.
§23-1-1d. Rules of former division of workers' compensation.
Except as otherwise provided for in this chapter, all rules
applicable to the former workers' compensation division of the bureau
of employment programs are hereby adopted and made effective as to the
operation of the workers' compensation commission under this chapter
to the extent that they are not in conflict with the current law. The
board of managers shall review and approve, modify or replace all
existing rules no later than the first day of July, two thousand six.
§23-1-1e. Transfer of assets and contracts.
With the establishment of the workers' compensation commission,
all assets and contracts, along with rights and obligations thereunder,
obtained or signed on behalf of the workers' compensation division of
the bureau of employment programs in furtherance of the purposes of
this chapter, are hereby transferred and assigned to the workers'
compensation commission.
§23-1-1f. Continuation.
The workers' compensation division shall continue to exist
pursuant to article ten, chapter four of this code, until the first day
of July, two thousand three, at which time all powers and duties are
transferred to the workers' compensation commission. The workers'
compensation commission shall continue to exist, pursuant to said
article until the first day of July, two thousand six, unless sooner
terminated, continued or reestablished pursuant to the provisions of
that article.
§23-1-2.
Oversight of the workers' compensation commission.
All expenses peculiar to the administration of this chapter, and,
when on official business, the traveling and incidental expenses of the
commissioner and salaries or other compensation, traveling and other
expenses of all officers or employees of the commissioner, and all
expenses for furniture, books, maps, stationery, appliances, property
of all kinds and dues for membership in all organizations pertaining
to workers' compensation or safety in which the commissioner considers
it advisable to maintain membership, shall be paid out of the workers'
compensation fund.
(a) In addition to any other oversight of the commission
exercised by the Legislature, the commission shall report at least
quarterly to the joint committee on government and finance and the
joint commission on economic development. The commission shall collect
data and report on claims and injuries and on the costs and outcomes
of injuries by standard codes for medical treatment, vocation
rehabilitation services, return to work services, other benefits
payable to or on behalf of employees, efforts to eliminate fraud and
abuse, and the impact of judicial and quasi-judicial rulings on the
administration of the workers' compensation system and the solvency of
the fund. The workers' compensation commission shall provide to the
joint committee on government and finance and the joint commission on
economic development an action plan for improving the workers'
compensation system. This plan shall include detail on any
administrative changes undertaken by the commission, a report on the
anticipated outcome of the changes, a cost-benefit analysis of the changes and time frames for commencement and completion of these
changes. Subsequent reports to the joint committee on government and
finance and the joint commission on economic development shall report
on the progress of these changes. The administrative changes shall
include, but are not limited to, claims processing, reorganization,
staff development and training, return-to-work programs, workplace
alternatives for injured workers, safety programs and medical and
vocational services.
(b) The commission shall also report on the current status of the
workers' compensation fund and the coal-workers' pneumoconiosis fund.
This analysis shall include the current balances in the fund and
revenue generated and expended in relationship to the liabilities and
assets of the funds and estimates of any debt reduction relative to the
fund over the next reporting period.
(c) The commission shall further report on the impact on the
workers' compensation system of the amendments to subdivision (2),
subsection (n), section six, article four of this chapter enacted
during the year two thousand three, including, but not limited to, an
analysis of any litigation resulting from the amendments.
(d) The commission shall further report on methodologies used to
establish all types of assessments and rates.
(e) The commission shall further report on legislative action
that may be required to further improve the operation of the
commission.
§23-1-3. Payment of salaries and expenses generally; manner;
limitation.
(a) All expenses peculiar to the administration of this chapter,
and, when on official business, the travel and incidental expenses of
the executive director and salaries or other compensation, traveling
and other expenses of all officers or employees of the commission, and
all expenses for furniture, books, maps, stationery, appliances,
property of all kinds and dues for membership in all organizations
pertaining to workers' compensation, safety maintenance or professional
designation in which the executive director considers it advisable to
maintain membership, shall be paid out of the workers' compensation fund.
(b) All payments of salaries and expenses in the administration
of this chapter shall be made by the state treasurer upon requisition
signed by the commissioner executive director, directed to the auditor
of the state, who shall draw his or her warrant therefor, and any such
the payment shall be charged to the workers' compensation fund:
Provided, That the total charges against such the fund under this
section for any one fiscal year shall not exceed the amount
appropriated therefor for the administration of this chapter.
§23-1-4. Office hours; records; confidentiality; exceptions.
(a) The offices of the workers' compensation division commission
shall be open for the transaction of business between the hours of
eight-thirty o'clock a.m., and five o'clock p.m., of each and every
day, excepting Saturdays, Sundays and legal holidays, and be open upon
such any additional days and at such any additional times as elected
by the division may elect commission. As The executive director is the
chief executive officer of the bureau of employment programs workers'
compensation commission., the commissioner shall designate an executive
director to serve as the chief operating officer for the daily
operations of the workers' compensation division: Provided, That in
any instance in this chapter which refers to the commissioner's
secretary, such reference shall be taken to mean the executive director
(b) Except as expressly provided for in this subsection,
information obtained regarding employers and claimants pursuant to this
chapter for the purposes of its administration shall is not be subject
to the provisions of chapter twenty-nine-b of this code unless such the
provisions are hereafter specifically made applicable, in whole or in
part. Such The information as may be that is reasonably necessary may
be released in formal orders or opinions of any tribunal or court which
is presented with an issue arising under this chapter as well as in the
presentations of the parties before any such the tribunal or court.
Similarly, claimants or other interested parties to an issue arising
under this chapter may, upon request, obtain information from the
division's commission's records to the extent necessary for the proper
presentation or defense of a claim or other matter. Information may be released pursuant to the provisions of chapter twenty-nine-b of this
code only if all identifying information has first been eliminated from
the records. Nothing in this subsection shall prevent the release of
information to another agency of the state or of the federal government
for the legitimate purposes of those agencies: Provided, That any such
the agency shall guarantee the confidentiality of the information so
provided to the fullest extent possible in keeping with its own
statutory and regulatory mandates. Nothing in this section shall
prevent the division commission from complying with any subpoena duces
tecum: Provided, however, That the issuing tribunal or court shall
take such actions as may be proper to maintain the confidentiality of
the information.
The division commission may release, pursuant to a proper request
under the provisions of chapter twenty-nine-b of this code, the
following information:
(1) The base premium tax rate for a specific employer;
(2) Whether or not a specific employer has obtained coverage
under the provisions of this chapter;
(3) Whether or not a specific employer is in good standing or is
delinquent or in default according to the division's commission's
records and the time periods thereof; and
(4) If a specific employer is delinquent or in default, what the
payments due the division commission are and what the components of
that payment are including the time periods affected.
§23-1-4a. Bond for executive director and associate director.
(a) The executive director and associate director of the workers'
compensation commission shall give bond in an amount determined by the
board of managers conditioned for the faithful management of the fund
and performance of their duties. The bond shall be approved by the
attorney general as to form. The surety of the bond may be a bonding
or surety company, in which case the premium shall be paid out of the
workers' compensation fund.
(b) The executive director and associate director shall be
provided appropriate insurance, including, but not limited to, errors
and omission coverage, without additional premium, by the state board of risk and insurance management established pursuant to article
twelve, chapter twenty-nine of this code.
§23-1-5. Office of executive director; hearings.
The commissioner executive director shall keep and maintain his
or her office at the seat of government and shall provide a suitable
room or rooms, necessary office furniture, supplies, books,
periodicals, maps and other equipment. After due notice, showing the
time and place, the commissioner executive director may hold hearings
anywhere within the state, or elsewhere by agreement of claimant and
employer, with the approval of the commissioner executive director.
§23-1-6. Employment of associate director and other assistants;
compensation and travel expenses.
(a) The commissioner executive director may employ a secretary an
associate director, actuary, accountants, inspectors, examiners,
experts, clerks, stenographers and other assistants, and fix their
compensation, which shall be paid as provided in sections two and
section three of this article. The associate director shall be hired
with the approval of the board of managers and serves at the will and
pleasure of the executive director.
(b) The commissioner, secretary associate director, supervisory
officers, actuaries, accountants, inspectors, examiners, experts,
clerks, stenographers and other assistants who may be employed shall
be are entitled to receive from the workers' compensation fund their
actual and necessary expense while traveling on business of the
commissioner Such commission. Travel reimbursement shall be paid in
accordance with the travel guidelines established by the department of
administration. All expenses shall be itemized and sworn to by the
person who incurred the expense, and shall be are subject to the
approval of the commissioner executive director: Provided, That the
expenses of the executive director shall be subject to the approval of
the board of managers.
§23-1-7. Associate director to act during executive director's absence
or inability to act and in case of vacancy; bond of associate
director.
Whenever it shall appear appears that the commissioner executive
director will be absent or unable to act for one week or more, the
secretary associate director of the commissioner commission may be
designated by the commissioner executive director to act during his or
her absence or inability to act, and during such that period he or she
shall have all the duties and powers of the commissioner. The
secretary shall give bond in the penalty of twenty-five thousand
dollars conditioned for the faithful performance of the duties of his
office, which bond shall be approved by the attorney general as to form
and by the governor as to sufficiency. The surety of such bond may be
a bonding or surety company, in which case the premium shall be paid
out of the appropriation made for the administration of this chapter.
executive director. In the event a vacancy occurs in the office of
commissioner executive director, the secretary of the commissioner
associate director shall have all the duties and powers of the
commissioner executive director until a commissioner is appointed by
the governor in accordance with section one of this article an
executive director or a temporary executive director is hired by the
board of managers. The board of managers may determine the amount of
additional compensation the associate director may receive as acting
executive director.
§23-1-8. Authority of executive director and employees as to oaths and
evidence.
The commissioner, secretary executive director, associate
director and every inspector or examiner other employees appointed by
the commissioner shall executive director may, for the purpose
contemplated by this chapter, have power to administer oaths, certify
official acts, take depositions, issue subpoenas and compel the
attendance of witnesses and the production of pertinent books,
accounts, papers, records, documents and testimony.
§23-1-9. Compelling compliance with order or subpoena.
In case of failure or refusal of any person to comply with the
order of the commissioner executive director, or subpoena issued by him
or her, his secretary the associate director, or one of his inspectors
or examiners duly appointed employee, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully
interrogated, or refusal to permit an inspection as aforesaid, the
circuit judge of the county in which the person resides, on application
of the commissioner executive director, associate director or any
inspector or examiner duly appointed by him employee, shall compel
obedience by attachment proceedings as for contempt, as in the case of
disobedience of the requirements of a subpoena issued from such the
court on a refusal to testify therein in the court.
§23-1-10. Fee of officer serving subpoena; fees and mileage of
witnesses.
Each officer who serves such subpoenas on behalf of the
commission shall receive the same fee as a sheriff, and each witness
who appears in obedience to a subpoena before the commissioner
executive director, associate director or an inspector, or an examiner
duly appointed employee, shall receive for his or her attendance the
fees and mileage provided for witnesses in civil cases in the circuit
court, which shall be audited and paid out of the workers' compensation
fund in the same manner as other expenses are audited and paid, if such
the witness was subpoenaed without the request of either claimant or
employer at the instance of the commissioner executive director,
associate director or an inspector or an examiner duly appointed
employee. The witness fees and mileage of any witness subpoenaed by,
or at the instance of, either claimant or employer shall be paid by the
party who subpoenas such the witness.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under articles
one through five, inclusive, of this chapter, the division commission
may cause depositions of witnesses residing within or without the state
to be taken in the manner prescribed by law for like depositions in the
circuit court, but such the depositions shall be upon reasonable notice
to claimant and employer or other affected persons or their respective
attorneys. The division commission shall designate the person to
represent it for the taking of any such the deposition.
(b) The division shall commission also have has discretion to
accept and consider depositions taken within or without the state by either the claimant or employer or other affected person, provided due
and reasonable notice of the taking of such the depositions was given
to the other parties or their attorneys, if any: Provided, That the
division commission, upon due notice to the parties, shall have has
authority to refuse or permit the taking of such depositions or to
reject such the depositions after the taking thereof they are taken,
if they were taken at such a place or under such circumstances as which
imposed an undue burden or hardship upon the other parties., and the
division's The commission's discretion to accept, refuse to approve or
reject such the depositions shall be is binding in the absence of abuse
of such the discretion.
§23-1-12. Copies of proceedings as evidence.
A transcribed copy of the evidence and proceedings, or any
specific part thereof, on any investigation or hearing, taken by a
stenographer appointed by the commissioner executive director and
certified and sworn to by such the stenographer to be a true and
correct transcript of the testimony in the investigation or hearing,
or of a particular witness, or of a specific part thereof, or to be a
correct transcript of the proceedings had on such the investigation or
hearing so purporting to be taken and subscribed, may be received in
evidence by the commissioner executive director with the same effect
as if such the stenographer were present and testified to the facts
certified. A copy of such the transcript shall be furnished on demand
to any party upon payment of the fee prescribed therefor in the rules
and regulations policies of the commissioner commission. such The fee
shall not to exceed that prescribed for transcripts in the circuit
court.
§23-1-13. Rules of procedure and evidence; persons authorized to
appear in proceedings; withholding of psychiatric and
psychological reports and providing summaries thereof.
(a) The workers' compensation division commission shall adopt
reasonable and proper rules of procedure, regulate and provide for the
kind and character of notices, and the service thereof of the notices,
in cases of accident and injury to employees, the nature and extent of
the proofs and evidence, the method of taking and furnishing the same of evidence to establish the rights to benefits or compensation from
the fund hereinafter provided for, or directly from employers as
hereinafter provided, as the case may require, and the method of making
investigations, physical examinations and inspections, and prescribe
the time within which adjudications and awards shall be made.
(b) At hearings and other proceedings before the division
commission or before the duly authorized representative of the division
commission, an employer who is a natural person may appear, and a
claimant may appear, only as follows:
(1) By an attorney duly licensed and admitted to the practice of
law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in another
state or country or in the District of Columbia who has complied with
the provisions of rule 8.0--admission pro hac vice, West Virginia
supreme court rules for admission to the practice of law, as amended;
(3) By a representative from a labor organization who has been
recognized by the division commission as being qualified to represent
a claimant or who is an individual otherwise found to be qualified by
the division commission to act as a representative. Such The
representative shall participate in the presentation of facts, figures
and factual conclusions as distinguished from the presentation of legal
conclusions in respect to such the facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the division
commission or before the duly authorized representative of the division
commission, an employer who is not a natural person may appear only as
follows:
(1) By an attorney duly licensed and admitted to the practice of
law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in another
state or country or in the District of Columbia who has complied with
the provisions of rule 8.0--admission pro hac vice, West Virginia
supreme court rules for admission to the practice of law, as amended;
(3) By a member of the board of directors of a corporation or by
an officer of the corporation for purposes of representing the interest
of the corporation in the presentation of facts, figures and factual
conclusions as distinguished from the presentation of legal conclusions
in respect to such the facts and figures; or
(4) By a representative from an employer service company who has
been recognized by the division commission as being qualified to
represent an employer or who is an individual otherwise found to be
qualified by the division commission to act as a representative. Such
The representative shall participate in the presentation of facts,
figures and factual conclusions as distinguished from the presentation
of legal conclusions in respect to such the facts and figures.
(d) The division commission or its representative may require an
individual appearing on behalf of a natural person or corporation to
produce satisfactory evidence that he or she is properly qualified and
authorized to so appear pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not be
construed as being applicable to proceedings before the office of
judges pursuant to the provisions of article five of this chapter.
(f) At the direction of a treating or evaluating psychiatrist or
clinical doctoral level psychologist, a psychiatric or psychological
report concerning a claimant who is receiving treatment or is being
evaluated for psychiatric or psychological problems may be withheld
from the claimant. In that event, a summary of the report shall be
compiled by the reporting psychiatrist or clinical doctoral level
psychologist which. The summary shall be provided to the claimant upon
his or her request. Any representative or attorney of the claimant
must agree to provide such a the claimant with only the summary before
the full report shall be is provided to the representative or attorney
for his or her use in preparing the claimant's case. Such a The report
shall only be withheld from the claimant in those instances where the
treating or evaluating psychiatrist or clinical doctoral level
psychologist certifies that exposure to the contents of the full report
is likely to cause serious harm to the claimant or is likely to cause
the claimant to pose a serious threat of harm to a third party.
(g) In any matter arising under articles one through five,
inclusive, of this chapter in which the division commission is required
to give notice to a party, if a party is represented by an attorney or
other representative, then notice to the attorney or other
representative shall be is sufficient notice to the party so
represented.
§23-1-14. Forms.
The commissioner commission shall prepare and furnish free of
cost blank forms (and provide in his or her rules for their
distribution so that the same they may be readily available) of
applications for benefits for compensation from the workers'
compensation fund, or directly from employers, as the case may be,
notices to employers, proofs of injury or death, of medical attendance,
of employment and wage earnings, and such any other blanks forms as may
be deemed considered proper and advisable. and it shall be It is the
duty of employers to constantly keep on hand a sufficient supply of
such blanks the forms.
§23-1-15. Procedure before commission.
The commissioner shall commission is not be bound by the usual
common-law or statutory rules of evidence, but shall adopt formal rules
of practice and procedure as herein provided, and may make
investigations in such a manner as that in his or her judgment is best
calculated to ascertain the substantial rights of the parties and to
carry out the provisions of this chapter.
§23-1-17. Annual report by commission and occupational pneumoconiosis
board.
Annually, on or about the fifteenth day of September in each
year, the commissioner executive director and the occupational
pneumoconiosis board shall make a report as of the thirtieth day of
June addressed to the governor, which shall include a statement of the
causes of the injuries for which the awards were made, an explanation
of the diagnostic techniques used by the occupational pneumoconiosis
board and all examining physicians to determine the presence of
disease, the extent of impairment attributable thereto, a description
of the scientific support for such the diagnostic techniques and a summary of public and private research relating to problems and
prevention of occupational diseases. The report shall include a
detailed statement of all disbursements, and the condition of the fund,
together with any specific recommendations for improvements in the
workers' compensation law and for more efficient and responsive
administration thereof of the workers' compensation law, which the
commissioner may consider executive director considers appropriate.
Copies of all annual reports shall be filed with the secretary of state
and shall be made available to the Legislature and to the public at
large.
§23-1-18. Commission employees not subject to subpoena for workers'
compensation hearings.
No employee of the workers' compensation division commission
shall be compelled to testify as to the basis, findings or reasons for
any decision or order rendered by the employee under this chapter in
any hearing conducted pursuant to article five of this chapter.
§23-1-19. Civil remedies.
(a) Any person, firm, corporation or other entity which
willfully, by means of false statement or representation, or by
concealment of any material fact, or by other fraudulent scheme, device
or artifice on behalf of himself, itself, or others, obtains or
attempts to obtain benefits or payments or allowances, including
workers' compensation coverage under the programs of the workers'
compensation commission to which he or it is not entitled, or, in a
greater amount than that to which he or it is entitled, shall be liable
to the workers' compensation commission in an amount equal to three
times the amount of such benefits, payments or allowances to which he
or it is not entitled, and shall be liable for the payment of
reasonable attorney fees and all other fees and costs of litigation.
(b) No criminal action or indictment need be brought against any
person, firm, corporation or other entity as a condition for
establishing civil liability hereunder.
(c) A civil action under this section may be prosecuted and
maintained on behalf of the workers' compensation commission by the
attorney general and his assistants or by any attorney in contract with or employed by the workers' compensation commission to provide such
representation.
(d) Venue for a civil action under this section shall be either
in the county in which the defendant resides or in Kanawha county, as
selected by the commission.
(e) The remedies and penalties provided in this section are in
addition to those remedies and penalties provided elsewhere by law.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business registration
certificates.
(a) The state of West Virginia and all governmental agencies or
departments created by it, including county boards of education,
political subdivisions of the state, any volunteer fire department or
company and other emergency service organizations as defined by article
five, chapter fifteen of this code, and all persons, firms,
associations and corporations regularly employing another person or
persons for the purpose of carrying on any form of industry, service
or business in this state, are employers within the meaning of this
chapter and are hereby required to subscribe to and pay premium taxes
into the workers' compensation fund for the protection of their
employees and shall be are subject to all requirements of this chapter
and all rules and regulations prescribed by the workers' compensation
division commission with reference to rate, classification and premium
payment: Provided, That such rates will be adjusted by the division
commission to reflect the demand on the compensation fund by the
covered employer.
(b) The following employers are not required to subscribe to the
fund, but may elect to do so:
(1) Employers of employees in domestic services; or
(2) Employers of five or fewer full-time employees in
agricultural service; or
(3) Employers of employees while said the employees are employed without the state except in cases of temporary employment without the
state; or
(4) Casual employers. An employer is deemed to be a casual
employer when the number of his or her employees does not exceed three
and the period of employment is temporary, intermittent and sporadic
in nature and does not exceed ten calendar days in any calendar
quarter; or
(5) Churches; or
(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged in
thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary unit
organized under the auspices of a county commission, municipality or
other government entity or political subdivision; volunteer
organizations created or sponsored by government entities, political
subdivisions or, area or regional emergency medical services boards of
directors in furtherance of the purposes of the emergency medical
services act of article four-c, chapter sixteen of this code:
Provided, That should if any of the employers described in this
subdivision have paid employees then to the extent of those paid
employees, the employer must shall subscribe to and pay premium taxes
into the workers' compensation fund based upon the gross wages of the
paid employees but with regard to the volunteers, such the coverage
remains optional.
(c) Notwithstanding any other provision of this chapter to the
contrary, whenever there are churches in a circuit which employ one
individual clergyman and the payments to such the clergyman from such
the churches constitute his or her full salary, such circuit or group
of churches may elect to be considered a single employer for the
purpose of premium payment into the workers' compensation fund.
(d) Employers who are not required to subscribe to the workers'
compensation fund may voluntarily choose to subscribe to and pay
premiums into the fund for the protection of their employees and in
such that case shall be are subject to all requirements of this chapter
and all rules and regulations prescribed by the division commission with reference to rates, classifications and premium payments and shall
afford to them the protection of this chapter, including section six
of this article, but the failure of such the employers to choose to
subscribe to and to pay premiums into the fund shall not impose any
liability upon them other than such any liability as that would exist
notwithstanding the provisions of this chapter.
(e) Any foreign corporation employer whose employment in this
state is to be for a definite or limited period which could not be
considered "regularly employing" within the meaning of this section may
choose to pay into the workers' compensation fund the premiums herein
provided for in this section, and at the time of making application to
the workers' compensation division such commission, the employer shall
furnish a statement under oath showing the probable length of time the
employment will continue in this state, the character of the work, an
estimate of the monthly payroll and any other information which may be
required by the division commission. At the time of making application
such the employer shall deposit with the division commission to the
credit of the workers' compensation fund the amount required by section
five of this article, which. That amount shall be returned to the
employer if the employer's application be is rejected by the division
commission. Upon notice to such the employer of the acceptance of his
or her application by the division commission, he or she shall be is
an employer within the meaning of this chapter and subject to all of
its provisions.
(f) Any foreign corporation employer choosing to comply with the
provisions of this chapter and to receive the benefits hereunder under
this chapter shall, at the time of making application to the division
commission in addition to other requirements of this chapter, furnish
the division commission with a certificate from the secretary of state,
where such the certificate is necessary, showing that it has complied
with all the requirements necessary to enable it legally to do business
in this state and no application of such a foreign corporation employer
shall be accepted by the division commission until such the certificate
is filed.
(g) The following employers may elect not to provide coverage to certain of their employees under the provisions of this chapter:
(1) Employers of employees who are officers of and stockholders
in a corporation qualifying for special tax treatment under subchapter
S of the Internal Revenue Code of the United States may elect not to
provide coverage to such employees or Any political subdivision of the
state including county commissions and municipalities, boards of
education, or emergency services organizations organized under the
auspices of a county commission may elect not to provide coverage to
any elected official. The election not to provide coverage does not
apply to individuals in appointed positions, or to any other employees
of the political subdivision;
(2) If an employer is a partnership, sole proprietorship,
association or corporation, such the employer may elect not to include
as an "employee" within this chapter, any member of such the
partnership, the owner of the sole proprietorship or any corporate
officer or member of the board of directors of the association or
corporation. The officers of a corporation or an association shall
consist consist of a president, a vice president, a secretary and a
treasurer, each of whom shall be is elected by the board of directors
at such the time and in such the manner as may be prescribed by the
bylaws. Such other Other officers and assistant officers as may be
deemed that are considered necessary may be elected or appointed by the
board of directors or chosen in such any other manner as may be
prescribed by the bylaws and, if so elected, appointed or chosen, such
the employer may elect not to include any such the officer or assistant
officer as an "employee" within the meaning of this chapter: Provided,
That except for those persons who are members of the board of directors
or who are the corporation's or association's president, vice
president, secretary and treasurer and who may be excluded by reason
of their aforementioned positions from the benefits of this chapter
even though their duties, responsibilities, activities or actions may
have a dual capacity of work which is ordinarily performed by an
officer and also of work which is ordinarily performed by a worker, an
administrator or an employee who is not an officer, no such other
officer or assistant officer who is elected or appointed shall be excluded by election from coverage or be denied the benefits of this
chapter merely because he or she is such an officer or assistant
officer if, as a matter of fact:
(A) He or she is engaged in a dual capacity of having the duties
and responsibilities for work ordinarily performed by an officer and
also having duties and work ordinarily performed by a worker,
administrator or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties of
a worker, an administrator or an employee who is not an officer and
receives pay therefor for performing the duties in the capacity of an
employee; or
(C) If He or she is engaged in an employment palpably separate
and distinct from his or her official duties as an officer of the
association or corporation.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the division commission written
notice naming the positions not to be covered and shall not include
such the "employee's" remuneration for premium purposes in all future
payroll reports, and such the partner, proprietor or corporate or
executive officer shall is not be deemed considered an employee within
the meaning of this chapter after such the notice has been served.
Notwithstanding the provisions of subsection (g), section five of this
article, if an employer is delinquent or in default or has not
subscribed to the fund even though it is obligated to do so under the
provisions of this article, then any such partner, proprietor or
corporate or executive officer shall not be covered and shall not
receive the benefits of this chapter.
(i) "Regularly employing" or "regular employment" shall mean
means employment by an employer which is not a casual employer under
this section.
§23-2-1c. Extraterritorial coverage; approval and change of
agreements.
(a) Whenever, with respect to an employee of an employer who is
a subscriber in good standing to the workers' compensation fund or an
employer who has elected to pay compensation directly, as provided in section nine of this article, there is a possibility of conflict with
respect to the application of workers' compensation laws because the
contract of employment is entered into and all or some portion of the
work is performed or is to be performed in a state or states other than
this state, the employer and the employee may agree to be bound by the
laws of this state or by the laws of such any other state in which all
or some portion of the work of the employee is to be performed:
Provided, That the commissioner shall have the authority to executive
director may review and accept or reject any such the agreement. Any
such The review shall be conducted in keeping with the commissioner's
executive director's fiduciary obligations to the workers' compensation
fund which may include, among other things, the nexus of the employer
and the employee to the state: Provided, however, That nothing in this
section shall be construed so as to require such an agreement in those
instances where subdivision (3), subsection (b), section one of this
article or subdivision (1), subsection (a), section one-a of this
article are applicable. Such agreement shall All agreements shall be
in writing and filed with the commissioner executive director within
ten days after execution thereof of the agreement but shall not become
effective until approved by the commissioner executive director and
shall, thereafter, remain in effect until terminated or modified by
agreement of the parties similarly filed or by order of the
commissioner executive director. If the parties agree to be bound by
the laws of this state, an employee injured within the terms and
provisions of this chapter shall be is entitled to benefits under this
chapter regardless of the situs of the injury or exposure to
occupational pneumoconiosis or other occupational disease, and the
rights of the employee and his or her dependents under the laws of this
state shall be the exclusive remedy against the employer on account of
injury, disease or death in the course of and as a result of the
employment.
(b) If the parties agree to be bound by the laws of another state
and the employer has complied with the laws of that state, the rights
of the employee and his or her dependents under the laws of that state
shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the
employment without regard to the situs of the injury or exposure to
occupational pneumoconiosis or other occupational disease.
(c) If the employee is a resident of a state other than this
state and is subject to the terms and provisions of the workers'
compensation law or similar laws of a state other than this state, such
the employee and his or her dependents shall not be are not entitled
to the benefits payable under this chapter on account of injury,
disease or death in the course of and as a result of employment
temporarily within this state, and the rights of such the employee and
his or her dependents under the laws of such the other state shall be
the exclusive remedy against the employer on account of such any
injury, disease or death.
(d) If any employee or his or her dependents be are awarded
workers' compensation benefits or recover damages from the employer
under the laws of another state for an injury received in the course
of and resulting from the employment, the amount so awarded or
recovered, whether paid or to be paid in future installments, shall be
credited against the amount of any benefits payable under this chapter
for the same injury.
§23-2-1d. Primary contractor liability; definitions; applications and
exceptions; certificates of good standing; reimbursement and
indemnification; termination of contracts; effective date;
collections efforts.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article shall include
includes any primary contractor who regularly subcontracts with other
employers for the performance of any work arising from or as a result
of the primary contractor's own contract: Provided, however, That a
subcontractor shall does not include one providing goods rather than
services. For purposes of this subsection, extraction of natural
resources is a provision of services. In the event that such a
subcontracting employer defaults on its obligations to make payments
to the commissioner commission, then such the primary contractor shall
be is liable for such the payments. Notwithstanding the foregoing However, nothing contained in this section shall extend or except to
such a primary contractor or subcontractors the provisions of section
six, six-a or eight of this article. This section is applicable only
with regard to subcontractors with whom the primary contractor has a
contract for any work or services for a period longer than thirty days:
Provided, That this section shall also be is also applicable to
contracts for consecutive periods of work that total more than thirty
days. It is not applicable to the primary contractor with regard to
sub-subcontractors. However, a subcontractor for the purposes of a
contract with the primary contractor can itself become a primary
contractor with regard to other employers with whom it subcontracts.
It is the intent of the Legislature that no contractor, whether a
primary contractor, subcontractor or sub-subcontractor escape or avoid
liability for any workers' compensation premium, assessment or tax.
The executive director shall propose for promulgation a rule to effect
this purpose on or before the thirty-first day of December, two
thousand three.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the commissioner
executive director, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor is in
good standing with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior to
the initial performance of any work by the subcontractor shall result
results in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes, premium
deposits, interest and other penalties arising during the life of the
contract or due to work performed in furtherance of the contract:
Provided, That the division shall be commission is entitled to collect
only once for the amount of premiums, premium deposits and interest due
to the default, but the division commission may impose other penalties
on the primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this section,
the primary contractor shall request that the commissioner of the
bureau of employment programs commission inform the primary contractor of any subsequent default by the subcontractor. In the event that the
subcontractor does default, the commissioner commission shall then
notify the primary contractor of the default by placing a notice in the
first-class United States mail, postage prepaid, and addressed to the
primary contractor at the address furnished to the commissioner
commission by the primary contractor. Such The mailing shall be is
good and sufficient notice to the primary contractor of the
subcontractor's default. However, the primary contractor shall is not
become liable under this section until the first day of the calendar
quarter following the calendar quarter in which the notice is given and
then such the liability shall is only be for that following calendar
quarter and thereafter and only if the subcontract has not been
terminated: Provided, That the commissioner shall be commission is
entitled to collect only once for the amount of premiums, premium
deposits and interest due to the default, but the commissioner
commission may impose other penalties on the primary contractor or on
the subcontractor, or both.
(c) In any situation where a subcontractor defaults with regard
to its payment obligations under this chapter or fails to provide a
certificate of good standing as provided for in this section, such the
default or failure shall be is good and sufficient cause for a primary
contractor to hold the subcontractor responsible and to seek
reimbursement or indemnification for any amounts paid on behalf of the
subcontractor to avoid or cure a workers' compensation default, plus
related costs including reasonable attorneys' fees, and to terminate
its subcontract with the subcontractor notwithstanding any provision
to the contrary in the contract.
(d) The provisions of this section are applicable only to those
contracts entered into or extended on or after the first day of
January, one thousand nine hundred ninety-four.
(e) The division commission may take any action authorized by
section five-a of this article in furtherance of its efforts to collect
amounts due from the primary contractor under this section.
§23-2-2. Commission to be furnished information by employers, state
tax commissioner and division of unemployment compensation; secrecy of information; examination of employers, etc.; violation
a misdemeanor.
(a) Every employer shall furnish the commissioner executive
director, upon request, all information required by him or her to carry
out the purposes of this chapter. Every employer shall have a
continuous and ongoing duty to maintain current information about its
activities, risks and rates on the books of the commission. The
commissioner executive director, or any person employed by the
commissioner commission for that purpose, shall have the right to may
examine under oath any employer or officer, agent or employee of any
employer.
(b) Notwithstanding the provisions of any other statute to the
contrary, specifically, but not exclusively, sections five and five-b,
article ten, chapter eleven of this code, and section eleven, article
ten, chapter twenty-one-a of this code the commissioner of the bureau
of employment programs executive director of the workers' compensation
commission may receive the following information:
(1) Upon written request to the state tax commissioner: The
names, addresses, places of business and other identifying information
of all businesses receiving a business franchise registration
certificate and the dates thereof; and the names and social security
numbers or other tax identification numbers of the businesses and of
the businesses' workers and employees, if otherwise collected, and the
quarterly and annual gross wages or other compensation paid to the
workers and employees of such businesses reported pursuant to the
requirement of withholding of tax on income.
(2) Upon written application to the division of unemployment
compensation: In addition to the information that may be released to
the division of workers' compensation commission for the purposes of
this chapter under the provisions of chapter twenty-one-a of this code,
the names, addresses and other identifying information of all employing
units filing reports and information pursuant to section eleven,
article ten, chapter twenty-one-a of this code as well as information
contained in those reports regarding the number and names, addresses
and social security numbers of employees employed and the gross quarterly wages paid by each employing unit to each identified
employee.
(c) All information acquired by the division of workers'
compensation commission pursuant to subsection (b) of this section
shall be used only for auditing premium payments, assisting in the
determination of employment status and registering businesses under the
single point of registration program as defined in section two, article
one, chapter eleven of this code. The division of workers'
compensation commission, upon receiving the business franchise
registration certificate information made available pursuant to
subsection (b) of this section, shall contact all businesses receiving
a business franchise registration certificate and provide all necessary
forms to register the business under the provisions of this article.
Any officer or employee of this state who uses the aforementioned
information obtained under this section in any manner other than the
one stated herein in this section or elsewhere authorized in this code,
or who divulges or makes known in any manner any of the aforementioned
information obtained under this section, shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than
one thousand dollars or imprisoned incarcerated in the county or
regional jail for not more than one year, or both, together with cost
of prosecution.
(d) Reasonable costs of compilation and production of any
information made available pursuant to subsection (b) of this section
shall be charged to the division of workers' compensation commission.
(e) Information acquired by the commissioner commission pursuant
to subsection (b) of this section shall is not be subject to disclosure
under the provisions of chapter twenty-nine-b of this code.
§23-2-3. Report forms and other forms for use of employers.
The division commission shall prepare and furnish report forms
for the use of employers subject to this chapter. Every employer
receiving from the division commission any form or forms with direction
for completion and returning to the division commission shall return
the same form, within the period fixed by the division commission,
completed so as to answer fully and correctly all pertinent questions therein propounded in the form, and if unable to do so, shall give good
and sufficient reasons for such the failure. Every employer subject
to the provisions of this chapter, shall make application to the
division commission on the forms prescribed by the division commission
for such that purpose; and any employer who shall terminate terminates
his or her business or for any other reason is no longer subject to
this chapter shall so immediately notify the division commission on
forms to be furnished by the division commission for that purpose.
§23-2-4. Classification of industries; rate of premiums; authority to
adopt various systems; accounts.
(a) The commissioner in conjunction with the compensation
programs performance council is authorized to, executive director with
approval of the board of managers is authorized to establish by rule
a system for determining the classification and distribution into
classes of employers subject to this chapter, a system for determining
rates of premium taxes applicable to employers subject to this chapter,
a system of multiple policy options with criteria for subscription
thereto and criteria for an annual employer's statement providing both
benefits liability information and rate determination information.
(1) In addition, the rule shall provide for, but not be limited
to:
(A) Rate adjustments by industry or individual employer,
including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the quarter
in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Such Any further matters that are necessary and consistent
with the goals of this chapter;
(2) The rule shall be consistent with the duty of the
commissioner and the compensation programs performance council
executive director and the board of managers to fix and maintain the
lowest possible rates of premium taxes consistent with the maintenance
of a solvent workers' compensation fund and the reduction of any
deficit that may exist in such fund the funds and in keeping with their
fiduciary obligations to the fund;
(3) The rule shall be consistent with generally accepted
accounting principles;
(4) The rule shall be consistent with classification and rate-
making methodologies found in the insurance industry; and
(5) The rule shall be consistent with the principles of promoting
more effective workplace health and safety programs as contained in
article two-b of this chapter.
(b) Notwithstanding any other provision of this chapter to the
contrary, the compensation programs performance council may elect to
premise its premium tax determination methodology on the aggregate
number of hours worked by employees of the employer rather than upon
the gross wages of the employer. Such an election may apply to all
industrial classifications or to less than all. If this election is
made, then in all instances in which this chapter refers to gross wage
reports for the purpose of premium tax determination such references
shall be taken to mean a report of the number of hours so worked.
(c) The rule authorized by subsection (a) of this section shall
be promulgated on or before the first day of July, one thousand nine
hundred ninety-six. Until the rule is finally promulgated, the prior
provisions of this section, as found in chapter one hundred seventy-one
of the acts of the Legislature, one thousand nine hundred ninety-three,
shall remain in effect.
(d) (b) In accordance with generally accepted accounting
principles, the workers' compensation division commission shall keep
an accurate accounting of all money or moneys earned, due and received
by the workers' compensation fund and of the liability incurred and
disbursements made against the same fund; and an accurate account of
all money or moneys earned, due and received from each individual
subscriber and of the liability incurred and disbursements made against
the same.
(c) Prospective rates set in accordance with the provisions of
this article shall at all times be financially sound in accordance with
generally accepted accounting principles and fully fund the prospective
claim obligations for the year in which the rates were made. Rates,
surcharges or assessments for deficit management and deficit reduction purposes shall be fair and equitable, financially sound in accordance
with generally accepted accounting principles and sufficient to meet
the payment obligations of the fund.
(d) Notwithstanding any provision of subsection (c) of this
section to the contrary, except for those increases made effective for
fiscal year two thousand four by action of the compensation programs
performance council heretofore established in article three, chapter
twenty-one-a of this code taken prior to the effective date of the
amendment and reenactment of this section, base rates, assessments and
surcharges shall not be increased during fiscal years two thousand
four, two thousand five and two thousand six.
§23-2-5. Application; payment of premium taxes; gross wages; payroll
report; deposits; delinquency; default; reinstatement; payment of
benefits; notice to employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation fund,
each employer who is required to subscribe to the fund or who elects
to subscribe to the fund shall pay premium taxes calculated as a
percentage of the employer's gross wages payroll as defined by the
commission at the rate determined by the workers' compensation division
commission and then in effect plus any additional premium taxes
developed from rates, surcharges, or assessments as determined by the
commission. At the time each employer subscribes to the fund, the
application required by the division commission shall be filed and a
premium deposit equal to the first quarter's estimated premium tax
payment shall be remitted. The minimum quarterly premium to be paid
by any employer shall be is twenty-five dollars.
(1) Thereafter, the premium taxes shall be paid quarterly on or
before the last day of the month following the end of the quarter, and
shall be the prescribed percentage of the entire gross wages of all
employees, from which net payroll is calculated and paid, during the
preceding quarter. The division commission may permit require
employers, who qualify under in accordance with the provisions of rules
promulgated proposed by the compensation programs performance council
executive director and promulgated by the board of managers, to report
gross wages and pay premium taxes monthly or at other intervals.
(2) Every subscribing employer shall make a gross wages payroll
report to the division commission for the preceding reporting period.
The report shall be on the form or forms prescribed by the division
commission and shall contain all information required by the division
commission.
(3) After subscribing to the fund, each employer shall remit with
each premium tax payment an amount calculated to be sufficient to
maintain a premium deposit equal to the premium payment for the
previous reporting period. The division commission may reduce the
amount of the premium deposit required from seasonal employers for
those quarters during which employment is significantly reduced. If the
employer pays premium tax on a basis other than quarterly, the division
commission may require the deposit to be based upon some other time
period. The premium deposit shall be credited to the employer's account
on the books of the division commission and used to pay premium taxes
and any other sums due the fund when an employer becomes delinquent or
in default as provided in this article.
(4) All premium taxes and premium deposits required by this
article to be paid shall be paid by the employers to the division
commission, which shall maintain a record of all sums so received. Any
such sum mailed to the division shall be deemed commission is
considered to be received on the date the envelope transmitting it is
postmarked by the United States postal service. All sums received by
the division commission shall be deposited in the state treasury to the
credit of the workers' compensation division commission in the manner
now prescribed by law.
(5) The division may commission shall encourage employer efforts
to create and maintain safe workplaces, to encourage loss prevention
programs and to encourage employer-provided wellness programs, through
the normal operation of the experience rating formula, seminars and
other public presentations, the development of model safety programs
and other initiatives as may be determined by the commissioner and the
compensation programs performance council executive director and the
board of managers.
(b) Failure of an employer to timely pay premium taxes as provided for in subsection (a) of this section, to timely file a
payroll report or to maintain an adequate premium deposit shall cause
the employer's account to become delinquent. No employer will be
declared delinquent or be assessed any penalty therefor for the
delinquency if the division commission determines that such the
delinquency has been caused by delays in the administration of the
fund. The division commission shall, in writing, within sixty days of
the end of each quarter notify all delinquent employers of their
failure to timely pay premium taxes, to timely file a payroll report
or to maintain an adequate premium deposit. Each employer who shall
fail fails to timely file any quarterly payroll report or timely pay
the premium tax due with such the report, or both, for any quarter
commencing on and after the first day of July, one thousand nine
hundred ninety-five, shall pay a late reporting or payment penalty of
the greater of fifty dollars or a sum obtained by multiplying the
premium tax due with such the report by the penalty rate applicable to
that quarter. The penalty rate to be used in a workers' compensation
division's commission's fiscal year shall be is calculated annually on
the first day of each fiscal year. The penalty rate used to calculate
the penalty for each quarter in a fiscal year is the quotient, rounded
to the nearest higher whole number percentage rate, obtained by
dividing the sum of the prime rate plus four percent by four. The
prime rate shall be is the rate published in the Wall Street Journal
on the last business day of the division's commission's prior fiscal
year reflecting the base rate on corporate loans posted by at least
seventy-five percent of the nation's thirty largest banks. Such The
late penalty shall be paid with the most recent quarter's report and
payment and is due when that quarter's report and payment are filed.
If such the late penalty is not paid when due, the same it may be
charged to and collected by the division commission from the employer's
premium deposit account or otherwise as provided for by law. The
notification shall demand the filing of the delinquent payroll report
and payment of delinquent premium taxes, the penalty for late reporting
or payment of premium taxes or premium deposit, the interest penalty
and an amount sufficient to maintain the premium deposit before the end of the third month following the end of the preceding quarter. Interest
shall accrue and be charged on the delinquent premium payment and
premium deposit pursuant to section thirteen of this article.
(c) Whenever the division commission notifies an employer of the
delinquent status of its account, the notification shall explain the
legal consequence of subsequent default by an employer required to
subscribe to the fund and the legal consequences of termination of an
electing employer's account.
(d) Failure by the employer, who is required to subscribe to the
fund and who fails to resolve the delinquency within the prescribed
period, shall place the account in default and shall deprive such the
default employer of the benefits and protection afforded by this
chapter, including section six of this article, and the employer shall
be is liable as provided in section eight of this article. The default
employer's liability under said these sections shall be is retroactive
to midnight of the last day of the month following the end of the
quarter for which the delinquency occurs. The division commission
shall notify the default employer of the method by which the employer
may be reinstated with the fund. The division commission shall also
notify the employees of such the employer by written notice as
hereinafter provided for in this section.
(e) Failure by any employer, who voluntarily elects to subscribe,
to resolve the delinquency within the prescribed period shall place the
account in default and shall automatically terminate the election of
such the employer to pay into the workers' compensation fund and shall
deprive such the employer and the employees of the default elective
employer of the benefits and protection afforded by this chapter,
including section six of this article, and such the employer shall be
is liable as provided in section eight of this article. The default
employer's liability under said that section shall be is retroactive
to midnight of the last day of the month following the end of the
quarter for which the delinquency occurs. Employees who were the
subject of the default employer's voluntary election to provide them
the benefits afforded by this chapter shall have such the protection
terminated at the time of their employer's default.
(f)(1) Except as provided for in subdivision (3) of this
subsection, any employer who is required to subscribe to the fund and
who is in default on the effective date of this section or who
subsequently defaults, and any employer who has elected to subscribe
to the fund and who defaults and whose account is terminated prior to
the effective date of this section or whose account is subsequently
terminated, shall be restored immediately to the benefits and
protection of this chapter only upon the filing of all delinquent
payroll and other reports required by the division commission and
payment into the fund of all unpaid premiums, an adequate premium
deposit, accrued interest and the penalty for late reporting and
payment. Interest shall be is calculated as provided for by section
thirteen of this article.
The division commission shall not have the authority to waive
either premium or accrued interest. The provisions of section seventeen
of this article apply to any action or decision of the division
commission under this section.
(2) The division shall have the authority to commission may
restore a defaulted or terminated employer through a reinstatement
agreement. Such The reinstatement agreement shall require the payment
in full of all premium taxes, premium deposits, the penalty for late
reporting and payment, past accrued interest and future interest
calculated pursuant to the provisions of section thirteen of this
article. Notwithstanding the filing of a reinstatement application or
the entering into of a reinstatement agreement, the division commission
is authorized to file a lien against the employer as provided by
section five-a of this article. In addition, entry into a
reinstatement agreement is discretionary with the division commission.
Such Its discretion shall be exercised in keeping with the fiduciary
obligations owed to the workers' compensation fund. Should If the
division decline commission declines to enter into a reinstatement
agreement and should if the employer does not comply with the
provisions of subdivision (1) of this subsection, then the division
commission may proceed with any of the collection efforts provided for
by section five-a of this article or as otherwise provided for by this code. Applications for reinstatement shall: (A) Be made upon forms
prescribed by the division commission; (B) include a report of the
gross wages payroll of the employer which had not been reported to the
division commission during the entire period of delinquency and
default, which . The gross wages information shall be certified by the
employer or its authorized agent; and (C) include a payment of a
portion of the liability equal to one half of one percent of the gross
payroll during the period of delinquency and default or equal to
another portion of the liability as may be determined, from time to
time, by rule but not to exceed the amount of the entire liability due
and owing for the period of delinquency and default. An employer who
applies for reinstatement shall be is entitled to the benefits and
protection of this chapter on the day a properly completed and
acceptable application which is accompanied by the application payment
is received by the division commission: Provided, That if the division
commission reinstates an employer subject to the terms of a
reinstatement agreement, the subsequent failure of the employer to make
scheduled payments or to pay accrued or future interest in accordance
with the reinstatement agreement or to timely file current quarterly
reports and to pay current quarterly premiums within the month
following the end of the quarter period for which the report and
payment are due, or to otherwise maintain its account in good standing
or, if the reinstatement agreement does not require earlier restoration
of the premium deposit, to restore the premium deposit to the required
amount by the end of the repayment period shall cause the reinstatement
application and the reinstatement agreement to be null, void and of no
effect, and the employer shall be is denied the benefits and protection
of this chapter effective from the date that such the employer's
account originally became delinquent.
(3) Any employer who fails to maintain its account in good
standing with regard to subsequent premium taxes and premium deposits
after filing an application for reinstatement and prior to the final
resolution of an application for reinstatement by entering into a
reinstatement agreement or by payment of the liability in full as
provided for in subdivision (1) of this subsection shall cause the reinstatement application to be null, void and of no effect, and the
employer shall be denied the benefits and protection of this chapter
effective from the date that such the employer's account originally
became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a reinstatement agreement, the division commission may
then make and continue with any of the collection efforts provided for
by this chapter or elsewhere in this code even if the employer files
another reinstatement application.
(g) With the exception noted in subsection (h), section one of
this article, no employee of an employer required by this chapter to
subscribe to the workers' compensation fund shall be denied benefits
provided by this chapter because the employer failed to subscribe or
because the employer's account is either delinquent or in default.
(h)(1) The provisions of this section shall not deprive any
individual of any cause of action which has accrued as a result of an
injury or death which occurred during any period of delinquency not
resolved in accordance with the provisions of this article, or
subsequent failure to comply with the terms of the repayment agreement.
(2) Upon withdrawal from the fund or termination of election of
any employer, the employer shall be refunded the balance due the
employer of its deposit, after deducting all amounts owed by the
employer to the workers' compensation fund and other agencies of this
state, and the division commission shall notify the employees of such
the employer of said the termination in such the manner as the division
commission may deem consider best and sufficient.
(3) Notice to employees in this section provided for in this
section shall be given by posting written notice that the employer is
defaulted under the compensation law of West Virginia, and in the case
of employers required by this chapter to subscribe and pay premiums to
the fund, that the defaulted employer is liable to its employees for
injury or death, both in workers' compensation benefits and in damages
at common law or by statute; and in the case of employers not required
by this chapter to subscribe and pay premiums to the fund, but
voluntarily electing to do so as herein provided in this article, that neither the employer nor the employees of such employer are protected
by said laws the law as to any injury or death sustained after the date
specified in said the notice. Such The notice shall be in the form
prescribed by the division commission and shall be posted in a
conspicuous place at the chief works of the employer, as the same
appear it appears in records of the division commission. If said the
chief works of the employer cannot be found or identified, then said
the notices shall be posted at the front door of the courthouse of the
county in which said the chief works are located, according to the
division's commission's records. Any person who shall, prior to the
reinstatement of said the employer, as hereinbefore provided for in
this section, or prior to sixty days after the posting of said the
notice, whichever shall first occur, remove, deface or render illegible
said the notice, shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined one thousand dollars, and said. The notice
shall state this provision upon its face. The division commission may
require any sheriff, deputy sheriff, constable or other official of the
state of West Virginia, who may be authorized to serve civil process,
to post such the notice and to make return thereof of the fact of such
the posting to the division commission., and any Any failure of such
the officer to post any notice within ten days after he or she shall
have has received the same notice from the division commission, without
just cause or excuse, shall constitute constitutes a willful failure
or refusal to perform a duty required of him or her by law within the
meaning of section twenty-eight, article five, chapter sixty-one of
this code. Any person actually injured by reason of such the failure
shall have has an action against said the official, and upon any
official bond he or she may have given, for such the damages as such
the person may actually have incurred, but not to exceed, in the case
of any surety upon said the bond, the amount of the penalty of said the
bond. Any official posting said the notice as herein required shall
be in this subdivision is entitled to the same fee as is now or may
hereafter be provided for the service of process in suits instituted
in courts of record in the state of West Virginia., which The fee shall
be paid by the division commission out of any funds at its disposal, but shall be charged by the division commission against the account of
the employer to whose delinquency such the notice relates.
§23-2-5a. Collection of premiums from defaulting employers; interest
and penalties; civil remedies; creation and enforcement of lien
against employer and purchaser; duty of secretary of state to
register liens; distraint powers; insolvency proceedings;
secretary of state to withhold certificates of dissolution;
injunctive relief; bond; attorney fees and costs.
(a) The workers' compensation division commission in the name of
the state may commence a civil action against an employer who, after
due notice, defaults in any payment required by this chapter. If
judgment is against the employer, such the employer shall pay the costs
of the action. A civil action under this section shall be given
preference on the calendar of the court over all other civil actions.
Upon prevailing in any such a civil action, the division shall be
commission is entitled to recover its attorneys' fees and costs of
action from the employer.
(b) In addition to the foregoing provisions of subsection (a) of
this section, any payment, interest and penalty thereon due and unpaid
under this chapter shall be is a personal obligation of the employer
immediately due and owing to the division commission and shall, in
addition thereto, be a lien enforceable against all the property of the
employer: Provided, That no such the lien shall not be enforceable as
against a purchaser (including a lien creditor) of real estate or
personal property for a valuable consideration without notice, unless
docketed as provided in section one, article ten-c, chapter thirty-
eight of this code: Provided, however, That such the lien may be
enforced as other judgment liens are enforced through the provisions
of chapter thirty-eight of this code said chapter and the same shall
be is considered deemed by the circuit court to be a judgment lien for
this purpose.
(c) In addition to all other civil remedies prescribed herein,
the division commission may in the name of the state, after giving
appropriate notice as required by due process, distrain upon any personal property, including intangible property, of any employer
delinquent for any payment, interest and penalty thereon. If the
division commission has good reason to believe that such the property
or a substantial portion thereof of the property is about to be removed
from the county in which it is situated, upon giving appropriate
notice, either before or after the seizure, as is proper in the
circumstances, the division commission may likewise distrain in the
name of the state before such the delinquency occurs. For such that
purpose, the division commission may require the services of a sheriff
of any county in the state in levying such the distress in the county
in which the sheriff is an officer and in which such the personal
property is situated. A sheriff so collecting any payment, interest
and penalty thereon shall be is entitled to such the compensation as
is provided by law for his or her services in the levy and enforcement
of executions. Upon prevailing in any distraint action, the division
shall be commission is entitled to recover its attorneys' fees and
costs of action from the employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter shall be is operated in
connection with a receivership or insolvency proceeding in any state
court in this state, the court under whose direction such the business
is operated shall, by the entry of a proper order or decree in the
cause, make provisions, so far as the assets in administration will
permit, for the regular payment of such the payments, interest and
penalties as the same they become due.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the case
of any corporation organized under the laws of this state or organized
under the laws of any other state and admitted to do business in this
state, until notified by the division commission that all payments,
interest and penalties thereon against any such the corporation which
is an employer under this chapter have been paid or that provision
satisfactory to the division commission has been made for payment.
(f) In any case when an employer required to subscribe to the
fund defaults in payments of premium, premium deposits, penalty or interest thereon, for as many as two calendar quarters, which quarters
need not be consecutive, and remains in default after due notice, the
division commission may bring action in the circuit court of Kanawha
County to enjoin such the employer from continuing to carry on the
business in which such the liability was incurred: Provided, That the
division commission may as an alternative to this action require such
the delinquent employer to file a bond in the form prescribed by the
commissioner commission with satisfactory surety in an amount not less
than fifty percent more than the payments, interest and penalties due.
§23-2-5c. Statute of limitations; effective date for new payments;
previous payments due not affected.
For payments due after the effective date of the amendment and
reenactment of this section during the year one thousand nine hundred
ninety-three, every action or process to collect any premium, premium
deposit, interest or penalty due from an employer pursuant to this
article by the commissioner executive director shall be brought or
issued within five years next after the date on which the employer is
required by the section imposing the premium, premium deposit, interest
or penalty to file a report and pay the amount due thereunder. The
limitation provided by this section shall likewise also apply to
enforcement of the lien, if any, securing the payment of such the
premium, premium deposit, interest or penalty, but shall not apply in
the event of fraud or in the event the employer wholly fails to file
the report required by the section imposing the premium, premium
deposit, interest or penalty. For payments that were due prior to the
effective date of this section, there shall continue continues to be
no limitation on when actions or processes may be brought or issued.
For every debt collectible under this section which first becomes due
and owing after the effective date of the amendment and reenactment of
this section during the year two thousand three, every action or
process to collect the debt shall be brought or issued within ten years
after the date on which the employer is required to file a report and
pay the amount assessed or owed to the commission.
§23-2-5d. Uncollectible receivables; write-offs.
Notwithstanding any other provision to the contrary, the division, with the approval of the compensation programs performance
council, the executive director, with the approval of the board of
managers, may write-off any uncollected receivable due under the
provisions of this article or article four of this chapter which the
division and the compensation programs performance council deem to be
the executive director and the board of managers determine
uncollectible.
§23-2-6. Exemption of contributing employers from liability.
Any employer subject to this chapter who shall subscribe and pay
subscribes and pays into the workers' compensation fund the premiums
provided by this chapter or who shall elect elects to make direct
payments of compensation as herein provided shall in this section is
not be liable to respond in damages at common law or by statute for the
injury or death of any employee, however occurring, after so
subscribing or electing, and during any period in which such the
employer shall is not be in default in the payment of such the premiums
or direct payments and shall have has complied fully with all other
provisions of this chapter. The continuation Continuation in the
service of such the employer shall be considered a waiver by the
employee and by the parents of any minor employee of the right of
action as aforesaid, which the employee or his or her parents would
otherwise have: Provided, That in case of employers not required by
this chapter to subscribe and pay premiums into the workers'
compensation fund, the injured employee has remained in such the
employer's service with notice that his or her employer has elected to
pay into the workers' compensation fund the premiums provided by this
chapter, or has elected to make direct payments as aforesaid.
§23-2-9. Election of employer or employers' group to be self-insured
and to provide own system of compensation; exceptions;
catastrophe coverage; self administration; rules; penalties;
regulation of self-insurers.
(a) Notwithstanding any provisions of this chapter to the
contrary, the following types of employers or employers' groups may
apply for permission to self-insure their workers' compensation risk including their risk of catastrophic injuries. Except as provided for
in subsection (e) of this section, no employer may self-insure its
second injury risk.
(1) The types of employers are:
(A) Any employer who is of sufficient capability and financial
responsibility to ensure the payment to injured employees and the
dependents of fatally injured employees of benefits provided for in
this chapter at least equal in value to the compensation provided for
in this chapter; or
(B) Any employer of such capability and financial responsibility
who maintains its own benefit fund or system of compensation to which
its employees are not required or permitted to contribute and whose
benefits are at least equal in value to those provided for in this
chapter; or
(C) Any group of employers who are subject to the same collective
bargaining agreement or who are in a collective bargaining group may
apply to the commission to collectively self-insure their obligations
under this chapter. The employers' group must individually and
collectively meet the conditions set forth in paragraph (A) or (B) of
this subdivision. There shall be joint and several liability for all
groups of employers who choose to self-insure under the provisions of
this article.
(2) In order to be approved for self-insurance status, the
employer must shall:
(A) Have an effective health and safety program at its
workplaces; and
(B) Provide security or bond in an amount and form to be
determined by the compensation programs performance council executive
director with the approval of the board of managers which shall balance
the employer's financial condition based upon an analysis of its
audited financial statements and the full accrued value of current
liability for future claim payments based upon generally accepted
actuarial and accounting principles of the employer's existing and
expected liability; and
(C) Security or bond which may be in such form as the commissioner and the compensation programs performance council created
pursuant to section one, article three, chapter twenty-one-a of this
code permits.
(3) Any employer whose record upon the books of the division
commission shows a liability, as determined on an accrued basis against
the workers' compensation fund incurred on account of injury to or
death of any of the employer's employees, in excess of premiums paid
by such the employer, shall not be granted the right, individually and
directly or from such the benefit funds or system of compensation, to
be self-insured until the employer has paid into the workers'
compensation fund the amount of such the excess of liability over
premiums paid, including the employer's proper proportion of the
liability incurred on account of catastrophes or second injuries as
defined in section one, article three of this chapter and charged
against such fund.
(4) Upon a finding that the employer has met all of the
requirements of this section, the employer may be permitted self-
insurance status. An annual review of each self-insurer's continuing
ability to meet its obligations and the requirements of this section
shall be made by the workers' compensation division commission. This
review shall include a redetermination of the amount of security or
bond which shall be provided by the employer. Failure to provide any
new amount or form of security or bond may, in the division's
discretion, cause the employer's self-insurance status to be terminated
by the workers' compensation commission. The security or bond provided
by employers prior to the second day of February, one thousand nine
hundred ninety-five, shall continue in full force and effect until the
performance of the employer's annual review and the entry of any
appropriate decision on the amount or form of the employer's security
or bond.
(5) Whenever a self-insured employer shall furnish furnishes
security or bond, including replacement and amended bonds and other
securities, as security surety to ensure the employer's or guarantor's
payment of all obligations under this chapter for which the security
or bond was furnished, such the security or bond shall be in the most current form or forms approved and authorized by the division
commission for use by the employer or its guarantors, surety companies,
banks, financial institutions or others in its behalf for such that
purpose.
(b)(1) Notwithstanding any provision in this chapter to the
contrary, self-insured employers shall, effective the first day of
July, two thousand four, administer their own claims. The executive
director shall, pursuant to rules promulgated by the board of managers,
regulate the administration of claims by employers granted permission
to self-insure their obligations under this chapter. Such rules shall
be promulgated at least thirty days prior to the first day of July, two
thousand four. A self-insured employer shall comply with rules
promulgated by the board of managers governing the self-administration
of its claims.
(2) An employer or employers' group who self-insures its risk and
self-administers its claims shall exercise all authority and
responsibility granted to the commission in this chapter and provide
notices of action taken to effect the purposes of this chapter to
provide benefits to persons who have suffered injuries or diseases
covered by this chapter. An employer or employers' group granted
permission to self-insure and self-administer its obligations under
this chapter shall at all times be bound and shall comply fully with
all of the provisions of this chapter. Furthermore, all of the
provisions contained in article four of this chapter pertaining to
disability and death benefits are binding on and shall be strictly
adhered to by the self-insured employer in its administration of claims
presented by employees of the self-insured employer. Violations of the
provisions of this chapter and such rules relating to this chapter as
may be approved by the board of managers may constitute sufficient
grounds for the termination of the authority for any employer to self-
insure its obligations under this chapter. Claim notices currently
generated by the commission on behalf of self-insured employers must
be generated and sent by the self-insured employer or its third-party
administrator.
(b) (c) Each self-insured employer shall, on or before the last day of the first month of each quarter, file with the division
commission a certified statement of the total gross wages and earnings
of all of the employer's employees subject to this chapter for the
preceding quarter. Each self-insured employer shall pay into the
workers' compensation fund as portions of its self-insured premium tax:
(1) A sum sufficient to pay the employer's proper portion of the
expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of the
expense of claims for those employers who are in default in the payment
of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of the
expenses of the disabled workers' relief fund; and
(4) A sum sufficient to maintain as an advance deposit an amount
equal to the previous quarter's payment of each of the foregoing three
sums;
(5) A sum as determined by the commission to be sufficient to pay
the employer's portion of rates, surcharges or deficit management and
deficit reduction assessments; and
(6) A sum as determined by the commission to pay the employer's
portion of self-insured catastrophic injury benefits, and second injury
payments on all self-insured second injury claims other than second
injury claims for those employers self-insured for second injury. Any
employer previously self-insured for second injury benefits shall
continue to be responsible for payment of those benefits.
(c)(d) The required payments to the employer's injured employees
or dependents of fatally injured employees as benefits provided for by
this chapter including second injury benefits and catastrophic injury
benefits, if applicable, shall constitute the remaining portion of the
self-insurer's premium tax.
(e) Notwithstanding any provision of subsection (d) of this
section to the contrary, except for those increases made effective for
fiscal year two thousand four by action of the compensation programs
performance council heretofore established in article three, chapter
twenty-one-a of this code taken prior to the effective date of the
amendment and reenactment of this section, the portion of the premium taxes for each self-insured employer as determined under subdivisions
(1) through (6), subsection (c) of this section shall not be increased
during fiscal years two thousand four, two thousand five and two
thousand six.
(f)(1) If an employer defaults in the payment of any portion of
its self-insured premium taxes, surcharges or assessments, the division
commission may shall, in an appropriate case, determine the full
accrued value based upon generally accepted actuarial and accounting
principles of the employer's liability including the costs of all
awarded claims and of all incurred but not reported claims. The amount
so determined may, in an appropriate case, be assessed against the
employer. and the division The commission may demand and collect the
present value of such the defaulted tax liability. Interest shall
accrue upon the demanded amount as provided for in section thirteen of
this article until the premium tax is fully paid. Payment of all
amounts then due to the division commission and to the employer's
employees is a sufficient basis for reinstating the employer to good
standing with the fund. In addition, any self-insured employer who,
without good cause, ceases to make required payments to the employer's
injured employees or dependents of fatally injured employees as
benefits provided for by this chapter including second injury benefits
and catastrophic injury benefits, if applicable, is in default. The
board of managers shall establish by rule the procedures by which the
existence or non-existence of good cause is to be determined by the
commission.
(2) Such premium Premium tax assessments are special revenue
taxes under and according to the provisions of state workers'
compensation law and are deemed considered to be tax claims, as
priority claims or administrative expense claims according to those
provisions under the law provided in the United States bankruptcy code,
Title 11 of the United States Code. In addition, as the same was
previously intended by the prior provisions of this section, this
amendment and reenactment is for the purpose of clarification of the
taxing authority of the workers' compensation division commission.
(d)(g) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury risk as defined in subsection (c),
section one, article three of this chapter. A self-insured employer
who elects to insure its catastrophic risk through a policy of excess
insurance obtained through a private insurance carrier approved by the
commission shall provide a copy of the policy to the commission.
(1) If the employer does not elect to self-insure its
catastrophic risk, then the employer shall pay premium taxes for this
coverage in the same manner as is provided for in section four of this
article and in rules adopted to implement said that section. Until
such rules are adopted, the employer's premium taxes shall be
determined in accordance with the provisions of chapter one hundred
seventy-four, acts of the Legislature, one thousand nine hundred
ninety-one. If the employees of such an that employer suffer injury
or death from a catastrophe, then the payment of the resulting benefits
shall be made from the catastrophe reserve of the surplus fund provided
for in subsection (b), section one, article three of this chapter.
Such Any portion of an employer's catastrophic liability insured and
paid under a policy of insurance purchased by the employer shall not
be included in the liabilities upon which the employer's security or
bond is determined in subsection (a) of this section.
(2) If an otherwise self-insured employer elects to self-insure
its catastrophic risk, then the security or bond required in subsection
(a) of this section shall include the liability for the catastrophic
risk.
(e)(1) Any self-insured employer who was, prior to the second day
of February, one thousand nine hundred ninety-five, permitted to self-
insure its second injury risk as defined in subsection (d), section
one, article three of this chapter, may elect to continue to self-
insure its second injury risk for so long as it meets the requirements
of this chapter. Any employer which was previously permitted to self-
insure its second injury risk who then elects to terminate that self-
insurance status shall not thereafter be permitted to self-insure its
second injury risk.
(2) (h) For those employers previously permitted to self-insure
their second injury risks, the amount of the security or bond required in subsection (a) of this section shall include the liability for that
risk. All benefits provided for by this chapter which are awarded to
the employer's employees which constitute second injury life awards
shall then be paid by the employer and not the division commission.
(3) (A) For those employers which do not self-insure their second
injury risk, the premium tax for second injury coverage shall be
determined by the rules which implement section four of this article.
Such rules may provide for merit rate adjustments of the amount of
premium tax to be paid based upon the accrued costs to be determined
under generally accepted accounting principles of second injury
benefits paid and to be paid to the employer's employees. Until such
rules are adopted, the employer's premium taxes shall be determined in
accordance with the provisions of chapter one hundred seventy-four,
acts of the Legislature, one thousand nine hundred ninety-one.
(B) In case there is a second injury to an employee of any
employer making such second injury premium tax payments, the employer
shall be liable to pay compensation or expenses arising from or
necessitated by the second injury and such compensation and expenses
shall be charged against the employer. After the completion of these
payments, the employee shall be paid the remainder of the compensation
and expenses that would be due for permanent total disability from the
second injury reserve of the surplus fund. Such additional compensation
and expenses shall not be charged against such employer.
(f)(i) The compensation programs performance council commission
may create, implement, establish and administer a perpetual self-
insurance security risk pool of funds, sureties, securities, insurance
provided by private insurance carriers or other states' programs, and
other property, of both real and personal properties, to secure the
payment of obligations of self-insured employers. If such a pool is
created, the compensation programs performance council board of
managers shall adopt rules for the organizational plan, participation,
contributions and other payments which may be required of self-insured
employers under this section. The council, in order to create and fund
such a risk pool, board of managers may adopt a rule authorizing the
division commission to assess each self-insured employer in proportion according to each employer's portion of the unsecured obligation and
liability or to assess according to some other method provided for by
rule which shall properly create and fund such the risk pool to serve
the needs of employees, employers and the workers' compensation fund
by providing adequate security. The council board of managers, in
funding such establishing a security risk pool, may authorize the
division executive director to use any assessments, premium tax
assessments taxes and revenues and appropriations as may be made
available to the division commission.
(g)(j) Any self-insured employer which has had a period of
inactivity due to the nonemployment of employees which results in its
reporting of no wages on quarterly reports to the division commission
for a period of four or more consecutive quarters shall have its status
at the division commission inactivated and shall be required to apply
for reactivation to status as a self-insured employer prior to its
reemployment of employees. Despite such the inactivation, the self-
insured employer shall continue to make payments on all awards for
which it is responsible. Upon application for reactivation of its
status as an operating self-insured employer, the employer must shall
document that it meets the eligibility requirements needed to maintain
self-insured status under this section and any rules adopted to
implement it. If the employer is unable to requalify and obtain
approval for reactivation, the employer shall, effective with the date
of employment of any employee, become a subscriber to the workers'
compensation fund, but shall continue to be a self-insurer as to the
prior period of active status and to furnish security or bond and meet
its prior self-insurance obligations.
(h)(k) In any case under the provisions of this section that
shall require the payment of compensation or benefits by an employer
in periodical payments and the nature of the case makes it possible to
compute the present value of all future payments, then the division
commission may, in its discretion, at any time compute and permit to
be paid into the workers' compensation fund an amount equal to the
present value of all unpaid future payments on the award or awards for
which liability exists in trust. Thereafter, such the employer shall be discharged from any further portion of premium tax liability upon
such the award or awards and payment of the award or awards shall be
assumed by the division commission.
(i)(l) Any employer subject to this chapter, who shall elect
elects to carry the employer's own risk by being self-insured and who
has complied with the requirements of this section and of any
applicable rules, shall not be liable to respond in damages at common
law or by statute for the injury or death of any employee, however
occurring, after such the election's approval and during the period
that the employer is allowed to carry the employer's own risk.
(m) An employer may not hire any person or group to self-
administer claims under this chapter as a third-party administrator
unless the person or group has been determined to be qualified to be
a third-party administrator by the commission pursuant to rules adopted
by the board of managers. Any person or group whose status as a third-
party administrator has been revoked, suspended or terminated by the
commission shall immediately cease administration of claims and shall
not administer claims unless subsequently authorized by the commission.
§23-2-10. Application of chapter to interstate commerce.
(a) In case any employer within the meaning of this chapter is
also engaged in interstate or foreign commerce, and for whom a rule of
liability or method of compensation has been established by the
Congress of the United States, this chapter shall apply applies to him
or her only to the extent that his or her mutual connection with work
in this state is clearly separable and distinguishable from his or her
interstate work, and to the extent that such the work in this state is
clearly separable and distinguishable from his or her interstate work,
such the employer shall be is subject to the terms and provisions of
this chapter in like manner as all other employers hereunder under this
chapter. Payments of premiums shall be on the basis of the payroll of
those employees who perform work in this state only.
(b) Unless and until the Congress of the United States has by
appropriate legislation established a rule of liability or method of
compensation governing employers and employees engaged in commerce
within the purview of the commerce clause of the United States Constitution (article I, section 8), section one of this article shall
apply applies without regard to the interstate or intrastate character
or nature of the work or business engaged in.
§23-2-11. Partial invalidity of chapter.
If any employer shall be is adjudicated to be outside the lawful
scope of this chapter, the chapter shall not apply to him or her or his
or her employee; or if any employee shall be is adjudicated to be
outside the lawful scope of this chapter, because of remoteness of his
or her work from the hazard of his or her employer's work, any such the
adjudication shall not impair the validity of this chapter in other
respects, and in every such case an accounting in accordance with the
justice of the case shall be had of moneys received. If the provisions
of this chapter for the creation of the workers' compensation fund, or
the provisions of this chapter making the compensation to the employee
provided in it exclusive of any other remedy on the part of the
employee, shall be is held invalid, the entire chapter shall be thereby
invalidated and an accounting according to the justice of the case
shall be had of money received. In other respects an adjudication of
invalidity of any part of this chapter shall not affect the validity
of the chapter as a whole or any part thereof of this chapter.
§23-2-12. Effect of repeal or invalidity of chapter on action for
damages.
If the provisions of this chapter relating to compensation for
injuries to, or death of, workmen shall be workers is repealed or
adjudged invalid or unconstitutional, the period intervening between
the occurrence of any injury or death and such the repeal, or the final
adjudication of invalidity or unconstitutionality, shall not be
computed as a part of the time limited by law for the commencement of
any action relating to such the injuries or death, but the amount of
any compensation which may have been paid on account of such injury or
death shall be deducted from any judgment for damages recovered on
account of such the injury or death.
§23-2-13. Interest on past-due payments; reinstatement agreements.
Effective the first day of July, one thousand nine hundred
ninety-nine, payments unpaid on the date on which due and payable shall immediately begin bearing interest as specified hereinafter in this
section. The interest rate per annum for each fiscal year shall be
calculated as the greater of the division's commission's current
discount rate or the prime rate plus four percent, each rounded to the
nearest whole percent. The discount rate shall be determined by the
compensation programs performance council board of managers on an
annual basis. The prime rate shall be the rate published in the Wall
Street Journal on the last business day of the division's commission's
prior fiscal year reflecting the base rate on corporate loans posted
by at least seventy-five percent of the nation's thirty largest banks.
This same rate of interest shall be applicable to all reinstatement
agreements entered into by the commissioner commission pursuant to
section five of this article on and after the effective date of this
section: Provided, That if an employer enters into a subsequent
reinstatement agreement within seven years of the date of the first
agreement, the interest rate shall be eighteen percent per annum.
Interest shall be compounded quarterly until payment plus accrued
interest is received by the commissioner commission: Provided,
however, That on and after the date of execution of a reinstatement
agreement, for determining future interest on any past-due premium,
premium deposit, and past compounded interest thereon, any
reinstatement agreement entered into by the commissioner commission
shall provide for a simple rate of interest, determined in accordance
with the provisions of this section which shall is not be subject to
change during the life of the reinstatement agreement for such the
future interest. Interest collected pursuant to this section shall be
paid into the workers' compensation fund: Provided further, That in
no event shall the rate of interest charged a political subdivision of
the state or a volunteer fire department pursuant to this section
exceed ten percent per annum.
§23-2-14. Sale or transfer of business; attachment of lien for
premium, etc., payments due; criminal penalties for failure to
pay; creation and avoidance or elimination of lien; enforcement
of lien; successor liability.
(a) If any employer shall sell sells or otherwise transfer
transfers substantially all of the employer's assets, so as to give up
substantially all of the employer's capacity and ability to continue
in the business in which the employer has previously engaged then:
(1) Such The employer's premium taxes, premium deposits, interest
and other payments owed to the division shall be commission are due and
owing to the division commission upon the execution of the agreement
of sale or other transfer;
(2) Any repayment agreement entered into by the employer with the
division commission pursuant to section five of this article shall
terminate terminates upon the execution of the aforesaid agreement of
sale or other transfer and all amounts owed to the division commission
but not yet paid shall become due; and
(3) Upon execution of an agreement of sale or other transfer, as
aforesaid, the division commission shall continue to have a lien, as
provided for in section five-a of this article, against all of the
remaining property of the employer as well as all of the sold or
transferred assets, which. The lien shall constitute constitutes a
personal obligation of the employer.
(b) Notwithstanding any provisions of section five-a of this
article to the contrary, in the event that a new employer acquires by
sale or other transfer or assumes all or substantially all of a
predecessor employer's assets then:
(1) Any liens for payments owed to the division commission for
premium taxes, premium deposits, interest or other payments owed to the
division commission by the predecessor employer shall be extended to
the successor employer;
(2) Any liens held by the division commission against the
predecessor employer's property shall be extended to all of the assets
of the successor employer; and
(3) Liens acquired in the manner described in subdivisions (1)
and (2) of this subsection shall be are enforceable by the division
commission to the same extent as provided for the enforcement of liens
against the predecessor employer in section five-a of this article.
(c) Notwithstanding the provisions of section five-a of this article to the contrary, if any employer as described in subsection (a)
of this section shall sell sells or otherwise transfer transfers a
portion of the employer's assets so as to affect the employer's
capacity to do business then:
(1) Such The employer's premium taxes, premium deposits, interest
and other payments owed to the division shall be commission are due and
owing to the division commission upon the execution of the agreement
of sale or other transfer;
(2) Any repayment agreement entered into by the employer with the
division commission pursuant to section five of the article shall
terminate terminates upon the execution of the aforesaid agreement of
sale or other transfer and all amounts owed to the division commission
but not yet paid shall become due; and
(3) Upon execution of an agreement of sale or other transfer, as
aforesaid, the division commission shall continue to have a lien, as
provided for in section five-a of this article, against all of the
remaining property of the employer as well as all the sold or
transferred assets. which The lien shall constitute constitutes a
personal obligation of the employer.
(d) If an employer subject to subsection (a), (b) or (c) of this
section pays to the division commission, prior to the execution of an
agreement of sale or other transfer, a sum sufficient to retire all of
the indebtedness that the employer would owe at the time of the
execution, then the division commission shall issue a certificate to
the employer stating that the employer's account is in good standing
with the division commission and that the assets may be sold or
otherwise transferred without the attachment of the division's
commission's lien. An agreement of sale or other transfer may provide
for the creation of an escrow account into which the employers shall
pay the full amount owed to the division commission. The subsequent
timely payment of that full amount to the division shall operate
commission operates to place both employers in good standing with the
division commission to the extent of the predecessor employer's
liabilities retroactive to the date of sale or other transfer. In the
event that the employer would not owe any sum to the division commission on the aforesaid date of execution, then a certificate shall
also be issued to the employer upon the employer's request stating that
the employer's account is in good standing with the division commission
and that the assets may be sold or otherwise transferred without the
attachment of the division's commission's lien.
(e) As used in this article, the term "assets" means all property
of whatever type in which the employer has an interest including, but
not limited to, good will, business assets, customers, clients,
contracts, access to leases such as the right to sublease, assignment
of contracts for the sale of products, operations, stock of goods or
inventory, accounts receivable, equipment or transfer of substantially
all of its employees.
(f) The transfer of any assets of the employer shall be are
presumed to be a transfer of all or substantially all of the assets if
the transfer affects the employer's capacity to do business. The
presumption can be overcome upon petition presented and an
administrative hearing in accordance with section fifteen seventeen of
this article and in consideration of the factors thereunder.
(g) The foregoing provisions of this section are expressly
intended to impose upon such successor employers the duty of obtaining
from the division commission or predecessor employer, prior to the date
of such the acquisition, a valid "certificate of good standing to
transfer a business or business assets" to verify that the predecessor
employer's account with the division commission is in good standing.
§23-2-15. Liabilities of successor employer; waiver of payment by
commission; assignment of predecessor employer's premium rate to
successor.
(a) At any time prior to or following the acquisition described
in subsection (a), (b) or (c), section fourteen of this article, the
buyer or other recipient may file a certified petition with the
division commission requesting that the division commission waive the
payment by the buyer or other recipient of premiums, premium deposits,
interest and imposition of the modified rate of premiums attributable
to the predecessor employer or other penalty, or any combination
thereof. The division commission shall review the petition by considering the following seven factors set forth below:
(1) The exact nature of the default;
(2) The amount owed to the division commission;
(3) The solvency of the fund;
(4) The financial condition of the buyer or other recipient;
(5) The equities exhibited towards the fund by the buyer or other
recipient during the acquisition process;
(6) The potential economic impact upon the state and the specific
geographic area in which the buyer or other recipient is to be or is
located, if the acquisition were not to occur; and
(7) Whether the assets are purchased in an arms-length
transaction.
Unless requested by a party or by the division commission, no
hearing need be held on the petition. However, any decision made by
the division commission on the petition shall be in writing and shall
include appropriate findings of fact and conclusions of law. Such The
decision shall be effective ten days following notice to the public of
the decision unless an objection is filed in the manner herein provided
in this section. Such notice Notice shall be given by the division's
commission's filing with the secretary of state, for publication in the
state register, of a notice of the decision. At the time of filing the
notice of its decision, the division commission shall also file with
the secretary of state a true copy of the decision. The publication
shall include a statement advising that any person objecting to the
decision must file, within ten days after publication of the notice,
a verified response with the division commission setting forth the
objection and the basis therefor for the objection. If any such
objection is filed, the division commission shall hold an
administrative hearing, conducted pursuant to article five, chapter
twenty-nine-a of this code, within fifteen days of receiving the
response unless the buyer or other recipient consents to a later
hearing. Nothing in this subsection shall be construed to be applicable
to the seller or other transferor or to affect in any way a proceeding
under sections five and five-a of this article.
(b) In the factual situations set forth in subsection (a), (b) or (c), section fourteen of this article, if the predecessor's modified
rate of premium tax, as calculated in accordance with section four of
this article, is greater than the manual rate of premium tax, as
calculated in accordance with said that section, for other employers
in the same class or group, then, and if the new employer does not
already have a modified rate of premium, it shall also assume the
predecessor employer's modified rates for the payment of premiums as
determined under sections four and five of this article until
sufficient time has elapsed for the new employer's experience record
to be combined with the experience record of the predecessor employer
so as to calculate the new employer's own modified rate of premium tax.
§23-2-16. Acceptance or assignment of premium rate.
(a) If a new corporate employer which is not subject to the
provisions of section fifteen of this article is created by the
officers or shareholders of a preexisting corporate employer and if the
new corporate employer and the preexisting corporate employer are: (1)
Managed Are managed by the same, or substantially the same, management
personnel; and (2) have a common ownership by at least forty percent
of each corporation's shareholders; and (3) is are in the same class
or group as determined by the commissioner executive director under the
provisions of section four of this article; and (4) if the preexisting
corporate employer's account is in good standing with the commissioner
commission, then, at the time the new corporate employer registers with
the commissioner commission, the new corporate employer may request
that the commissioner commission assign to it the same rate of payment
of premiums as that assigned to the preexisting corporate employer.
If the commissioner executive director decides that the granting of
such a the request is in keeping with his or her fiduciary obligations
to the workers' compensation fund, then the commissioner executive
director may grant the request of the employer.
(b) If a new corporate employer which is not subject to the
provisions of section fifteen of this article is created by the
officers or shareholders of a preexisting corporate employer and if the
new corporate employer and the preexisting corporate employer are: (1)
Managed Are managed by the same, or substantially the same, management personnel; and (2) have a common ownership by at least forty percent
of each corporation's shareholders; and (3) is are in the same class
or group as determined by the commissioner executive director under the
provisions of section four of this article, then, at any time within
one year of the new corporate employer's registration with the
commissioner commission, the commissioner executive director may decide
that, in keeping with his or her fiduciary obligations to the workers'
compensation fund, the new corporate employer shall be assigned the
same rate of payment of premiums as that assigned to the preexisting
corporate employer at any time within the aforesaid one-year period:
Provided, That if the new corporate employer fails to reveal to the
commissioner commission on the forms provided by the commissioner
commission that its situation meets the factual requirements of this
section, then the commissioner commission may demand payment from the
new corporate employer in an amount sufficient to eliminate the
deficiency in payments by the new corporate employer from the date of
registration to the date of discovery plus interest thereon as provided
for by section thirteen of this article. The commissioner commission
may utilize the use its powers given to the commissioner in pursuant
to section five-a of this article to collect the amount due.
§23-2-17. Employer right to hearing; content of petition; appeal.
Notwithstanding any provision in this chapter to the contrary and
notwithstanding any provision in section five, article five, chapter
twenty-nine-a of this code to the contrary, in any situation where an
employer objects to a decision or action of the commissioner executive
director made under the provisions of this article, then such the
employer shall be is entitled to file a petition demanding a hearing
upon such the decision or action which. The petition must be filed
within thirty days of the employer's receipt of notice of the disputed
commissioner's executive director's decision or action or, in the
absence of such receipt, within sixty days of the date of the
commissioner's executive director's making such the disputed decision
or taking such the disputed action, such the time limitations being
hereby declared to be a condition of the right to litigate such the
decision or action and hence therefore jurisdictional.
The employer's petition shall clearly identify the decision or
action disputed and the bases upon which the employer disputes the
decision or action. Upon receipt of such a petition, the commissioner
executive director shall schedule a hearing which shall be conducted
in accordance with the provisions of article five, chapter twenty-nine-
a of this code. An appeal from a final decision of the commissioner
executive director shall be taken in accord with the provisions of
articles five and six of said that chapter: Provided, That all such
appeals shall be taken to the circuit court of Kanawha County.
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 are entitled to
compensation under the provisions of this chapter and shall not by
having received same compensation 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 for the claim, the commissioner commission or
a self-insured employer shall be allowed statutory subrogation with
regard to medical benefits paid as of the date of the recovery.:
Provided, That under no circumstances shall 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,
if such exist. The commission or self-insured employer shall permit
the deduction from the amount received a reasonable attorney's fee and
a reasonable portion of costs. It is the duty of the injured worker,
his or her dependents, his or her personal representative, or his or
her attorney to notify the commission and the employer when the claim is filed against the third party.
(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 the moneys received which shall exist in favor of the
commissioner commission 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 remains 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 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 the amendment and reenactment of this section
during the year two thousand three.
ARTICLE 2B. OCCUPATIONAL SAFETY AND HEALTH PROGRAMS.
§23-2B-1. Occupational safety and health activities; voluntary
compliance; consultative services.
In order to carry out the purposes of this chapter and to
encourage voluntary compliance with occupational safety and health
laws, regulations, rules and standards and to promote more effective
workplace health and safety programs, the commissioner executive
director acting in conjunction with the performance council created
pursuant to section one, article three, chapter twenty-one-a of this
code, board of managers shall:
(a) Develop greater knowledge and interest in the causes and
prevention of industrial accidents, occupational diseases and related
subjects through:
(1) Research, conferences, lectures and the use of public
communications media;
(2) The collection and dissemination of accident and disease
statistics; and
(3) The publication and distribution of training and accident
prevention materials, including audio and visual aids;
(b) Provide consultative services for employers on safety and
health matters and prescribe procedures which will permit any employer
to request a special inspection or investigation, focused on specific
problems or hazards in the place of employment of the employer or to
request assistance in developing a plan to correct such problems or
hazards, which will not directly result in a citation and civil
penalty; and
(c) Place emphasis, in the research, education and consultation
program, on development of a model for providing services to groups of
small employers in particular industries and their employees and for
all employers whose experience modification factor for rate-setting
purposes is in excess of the criteria established by the compensation
programs performance council board of managers.
§23-2B-2. Mandatory programs; safety committees; requirements; rules;
exceptions.
(a) Based upon and to the extent authorized by criteria
established by the compensation programs performance council executive
director, the commissioner commission is authorized to conduct special
inspections or investigations focused on specific problems or hazards
in the workplace with or without the agreement of the employer. The
commissioner executive director shall issue a report on his or her
findings and shall furnish a copy of the report to the employer and to
any bargaining unit representing the employees of the employer. The
commissioner executive director may share information obtained or
developed pursuant to this article with other governmental agencies.
(b) For any employer whose experience modification factor exceeds
the criteria established by the compensation programs performance
council board of managers, the commissioner executive director may
require the employer to establish a safety committee composed of
representatives of the employer and the employees of the employer.
(c) In carrying out the provisions of this article, the
commissioner and the compensation programs performance council
executive director shall promulgate propose rules for promulgation
which shall include, but are not limited to, the following provisions:
(1) Prescribing the membership of the committees, training, frequency of meetings, record keeping and compensation of employee
representatives on safety committees; and
(2) Prescribing the duties and functions of safety committees
which include, but are not limited to:
(A) Establishing procedures for workplace safety inspections; and
for investigating job-related accidents, illnesses and deaths; and
(B) Evaluating accident and illness prevention programs.
(d) An employer that is a member of a multiemployer group
operating under a collective bargaining agreement that contains
provisions regulating the formation and operation of a safety committee
that meets or exceeds the minimum requirements of this section shall
be is considered to have met the requirements of this section.
(e) It is not the purpose of this article to either supercede the
federal Occupational Health and Safety Act program, federal Mine Safety
and Health Act program or to create a state counterpart to this program
these programs.
§23-2B-3. Premium rate credits; qualified loss management program; loss
management firms; penalties; rules.
(a) The commissioner, in conjunction with the compensation
programs performance council, is authorized to executive director may
establish by rule a premium credit program for certain employers. The
program shall be is applicable solely to regular subscribers to the
workers' compensation fund and not to self-insurers. Participation in
any premium credit program shall be is voluntary and no employer shall
be is required to participate.
(b) The program shall apply applies a prospective credit to the
premium rate of a subscribing employer who participates in a qualified
loss management program. The prospective credit shall be is given for
a period of up to three years: Provided, That the employer remains in
the program for a corresponding period of time.
(c) The rule shall specify the requirements of a qualified loss
management program and shall include a requirement that a recognized
loss management firm participate in the program. A loss management
firm shall be recognized if it has demonstrated an ability to
significantly reduce workers' compensation losses for its client employers by implementing a loss control management program. The
amount of credit against premium rates that may be allowed by the
commissioner executive director shall vary from firm to firm and shall
be primarily determined by the loss reduction success experienced by
all of the subscribing employers of the sponsoring loss management firm
over a period of time to be determined by the commissioner executive
director.
(d) A credit shall be is applied to the employer's premium rate
for up to three years. The amount of the credit applied to the first
year is based on the credit factor assigned to the loss management firm
on the date the employer subscribes to the program. The amount of the
credit applied to the second and third years shall be based on the
credit factor assigned to the loss management firm and in effect on
each first day of July of the pertinent year: Provided, That the
applicable credit is halved in the third year.
(e) The employer may terminate participation in the program upon
three years of continuous participation in the program without penalty.
Sooner termination may result in a penalty being applied to the
employer's premium rate.
(f) An employer who has subscribed to an existing program of a
qualified loss management firm prior to the effective date of this
section shall be is subject to a reduction in credit as follows:
(1) Participation for one year or less shall result in credit for
the full three years;
(2) Participation for more than one year but less than two years
shall result in a credit for two years;
(3) Participation for two years or more but less than three years
shall result in a credit for one year; and
(4) Participation for three years or more shall result in no
credit.
(g) This section shall not become effective until the
commissioner, in conjunction with the compensation programs performance
council, board of managers promulgates an appropriate rule to implement
the section's provisions.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-1. Compensation fund; catastrophe and catastrophe payment
defined; compensation by employers.
(a) The commissioner commission shall establish a workers'
compensation fund from the premiums and other funds paid thereto by
employers, as herein provided in this section, for the benefit of
employees of employers who have paid the premiums applicable to such
the employers and have otherwise complied fully with the provisions of
section five, article two of this chapter, and for the benefit, to the
extent elsewhere in this chapter set out, of employees of employers who
have elected, under section nine, article two of this chapter, to make
payments into the surplus workers' compensation fund hereinafter as
provided for in this section, and for the benefit of the dependents of
all such the employees, and for the payment of the administration
expenses of this chapter.
(b) A portion of all premiums that shall be are paid into the
workers' compensation fund by subscribers not electing to carry their
own risk under section nine, article two of this chapter shall be that
are set aside to create and maintain a surplus reserve of the fund to
cover the catastrophe hazard the second injury hazard and all losses
not otherwise specifically provided for in this chapter. The percentage
to be set aside shall be is determined pursuant to the rules adopted
to implement section four, article two of this chapter and shall be in
an amount sufficient to maintain a solvent surplus fund. All interest
earned on investments by the workers' compensation fund, which is
attributable to the surplus fund reserve, shall be credited to the
surplus fund.
(c) A catastrophe is hereby defined as an accident in which three
or more employees are killed or receive injuries, which, in the case
of each individual, consist of: Loss of both eyes or the sight
thereof; or loss of both hands or the use thereof; or loss of both feet
or the use thereof; or loss of one hand and one foot or the use
thereof. The aggregate of all medical and hospital bills and other
costs and all benefits payable on account of a catastrophe is hereby
defined as "catastrophe payment". In case of a catastrophe to the
employees of an employer who is an ordinary premium-paying subscriber to the fund, or to the employees of an employer who, having elected to
carry the employer's own risk under section nine, article two of this
chapter, has heretofore previously elected, or may hereafter later
elect, to pay into the catastrophe reserve of the surplus fund under
the provisions of that section, then the catastrophe payment arising
from such the catastrophe shall not be charged against, or paid by,
such the employer but shall be paid from the catastrophe reserve of the
surplus fund.
(d) (1) If For all awards made on or after the effective date of
the amendments to this section enacted during the year two thousand
three, the following provisions relating to second injury are not
applicable. For awards made before the date specified in this
subsection, if an employee who has a definitely ascertainable physical
impairment, caused by a previous occupational injury, occupational
pneumoconiosis or occupational disease, irrespective of its
compensability, becomes permanently and totally disabled through the
combined effect of such the previous injury and a second injury
received in the course of and as a result of his or her employment, the
employer shall be chargeable only for the compensation payable for such
the second injury: Provided, That in addition to such the
compensation, and after the completion of the payments therefor, the
employee shall be paid the remainder of the compensation that would be
due for permanent total disability out of a special reserve of the
surplus workers' compensation fund known as the second injury reserve
created in the manner hereinbefore set forth. The procedure by which
the claimant's request for a permanent total disability award under
this section is ruled upon shall require that the issue of the
claimant's degree of permanent disability first be determined.
Thereafter, by means of a separate order, a decision shall be made as
to whether the award shall be is a second injury award under this
subsection or a permanent total disability award to be charged to the
employer's account or to be paid directly by the employer if the
employer has elected to be self-insured under the provisions of section
nine, article two of this chapter.
(2) If an employee of an employer, where the employer has elected to carry his or her own risk under section nine, article two of this
chapter, and is permitted not to make payments into the second injury
reserve of surplus fund under the provisions of said section, has a
definitely ascertainable physical impairment caused by a previous
occupational injury, occupational pneumoconiosis or occupational
disease, irrespective of its compensability, and becomes permanently
and totally disabled from the combined effect of such previous injury
and a second injury received in the course of and as a result of his
or her employment, the employee shall be granted an award of total
permanent disability and his or her employer shall, upon order of the
division, compensate the said employee in the same manner as if the
total permanent disability of the employee had resulted from a single
injury while in the employ of such employer.
(e) Employers electing, as herein provided in this chapter, to
compensate individually and directly their injured employees and their
fatally injured employees' dependents shall do so in the manner
prescribed by the division commission and shall make all reports and
execute all blanks, forms and papers as directed by the division
commission, and as provided in this chapter.
§23-3-1a. Transfer of silicosis fund to workers' compensation fund;
claims under former article six.
Ten percent of the funds collected and held as the workers'
compensation silicosis fund under the provisions of former article six
of this chapter, which article is by this act repealed, shall be
transferred to and made a part of the workers' compensation fund
provided for in the preceding section, and the balance thereof of the
silicosis fund shall be refunded to the subscribers thereto to the fund
in proportion to their contributions to the same fund under the
provisions of said former article six; and all awards heretofore
previously made under the provisions of article six shall be paid from
the workers' compensation fund, or directly by the employer, under
order of the commissioner executive director, if the employer has
elected to carry his or her own risk under the provisions of section
nine, article two of this chapter: Provided, That notwithstanding the
repeal of said article six, the provisions thereof shall be of the article are applicable in all cases of the disease or death, because
of silicosis, or an employee whose last exposure to silicon dioxide
dust has occurred prior to the effective date of this section, whose
claim or application for compensation benefits for silicosis, or that
of his or her dependent, has not been filed prior to said that date,
and whose employer, at the time of such the exposure, was subject to
the provisions of said article six of this chapter.
§23-3-2. Custody, investment and disbursement of funds.
The state treasurer shall be is the custodian of the workers'
compensation fund and all premiums, deposits or other moneys paid
thereto payable to each fund shall be deposited in the state treasury
to the credit of the workers' compensation fund for which it was
assessed, transferred or collected in the manner prescribed in section
five, article two of this chapter. The workers' compensation fund
shall consist of the premiums and deposits provided by this chapter and
all interest accruing thereto upon investments and deposits in the
state depositories, and any other moneys or funds which may be given,
appropriated or otherwise designated or accruing thereto to it and all
earnings. Said The fund shall be a separate and distinct fund and
shall be so kept upon the books and records of the auditor and
treasurer and the state depositories in which any part is deposited.
Disbursements therefrom shall be made upon requisitions signed by the
secretary and approved by the commissioner of the bureau of employment
programs executive director.
The board of investments shall have authority to invest the
surplus, reserve or other moneys belonging to the fund in the bonds of
the United States, notes or bonds of this state, bridge revenue bonds
of this state issued prior to the first day of January, one thousand
nine hundred thirty-nine, or any bonds issued to refund the same, bonds
of any county, city, town, village or school district of the state.
No such investment shall be made, nor any investment sold or otherwise
disposed of without the concurrence of a majority of all members of the
board of investments. It shall be the duty of every county, school
district or municipality issuing any bonds, to offer the same in
writing to the board of investments, prior to advertising the same for sale, and the board of investments shall, within fifteen days after
receipt of such offer, accept the same and purchase such bonds, or any
portion thereof at par and accrued interest, or reject such offer. All
securities purchased by the board of investments for investment for the
workers' compensation fund shall be placed in the hands of the state
treasurer as the custodian thereof, and shall be his duty to keep and
account for the same as he keeps and accounts for other securities of
the state, and to collect the interest thereon as the same becomes due
and payable and the principal when the same is due. No notes, bonds
or other securities shall be purchased by the board of investments
until and unless the attorney general shall investigate the issuance
of such notes, bonds or securities and shall give a written opinion to
the board that the same have been regularly issued according to the
constitution and the laws of this state, which opinion, if such notes,
bonds or securities be purchased, shall be filed with the treasurer
with such bonds or securities.
The workers' compensation fund is a participant plan as defined
in section two, article six, chapter twelve of this code and is subject
to the provisions of section nine-a of said article. The fund shall
be invested by the investment management board in accordance with said
article.
§23-3-3. Investment of surplus funds required.
Whenever there shall be is in the state treasury any funds
belonging to the workers' compensation fund not likely, in the opinion
of the commissioner commission, to be required for immediate use, it
shall be is the duty of the board of investments investment management
board to invest the same funds as prescribed in the preceding section
two of this article. Whenever it may become becomes necessary or
expedient to use any of the invested funds so invested, the board of
investments investment management board, at the direction of the
commissioner commission, shall collect, sell or otherwise realize upon
any investment to the amount considered necessary or expedient to use.
§23-3-5. Authorization to require the electronic invoices and
transfers.
(a) The workers' compensation division is authorized to commission shall on or before the thirty-first day of December, two
thousand five, establish a program to require the acceptance of
disbursements by electronic transfer from the workers' compensation
fund to employers, vendors and all others lawfully entitled to receive
such disbursements: Provided, That until the thirty-first day of
December, two thousand five, claimants may not be required to accept
such the transfers but may elect to do so.
(b) The division is further authorized to commission may
establish a program to require payments of deposits, premiums and other
funds into the workers' compensation fund by electronic transfer of
funds.
(c) The division is further authorized to commission may
establish a program that invoices and other charges against the
workers' compensation fund may be submitted to the division commission
by electronic means.
(d) Any program authorized by this section must be implemented
through the issuance of a rule pursuant to subdivisions (b) and (c),
section seven, article three, chapter twenty-one-a of this code
promulgated by the board of managers.
§23-3-6. Emergency fiscal measures.
(a) In addition to other measures intended by the Legislature to
address the imminent threat to the fiscal solvency of the workers'
compensation fund, the Legislature finds that the prudent use of
available moneys may be necessary to supplement ongoing efforts to
reduce and eliminate that threat. The provisions of this section are
enacted for those purposes.
(b) The following measures are authorized for the purposes
described in subsection (a) of this section:
(1) Upon meeting the conditions and requirements of subsection
(a), section eight-b, article four-b of this chapter, the commission
may expend the assets described in said subsection (a) and any income
earned thereon to satisfy the obligations of the workers' compensation
fund.
(2) Upon meeting the conditions and requirements of subsection
(b), section eight-b, article four-b of this chapter, the commission may expend the assets described in said subsection (b) and any income
earned thereon to satisfy the obligations of the workers' compensation
fund.
(3) In each fiscal year beginning after the thirtieth day of
June, two thousand three, it is the intent of the Legislature that
pursuant to appropriation in the budget bill for each respective fiscal
year, five million dollars of general revenue funds be transferred to
the workers' compensation fund and that the amounts transferred be
expended to satisfy the obligations of the workers' compensation fund.
(4)(1) If in any year expenditures from the workers' compensation
fund are expected to exceed assets in that fund, the executive director
may under the following conditions request a transfer of moneys from
the principal of the West Virginia tobacco settlement medical trust
fund created in section two, article eleven-a, chapter four of this
code. Prior to requesting the transfer the executive director shall
obtain an opinion from the commission's actuary as to the amount of the
deficit in the workers' compensation fund. Upon meeting the
requirements of this subdivision, the executive director shall, upon
approval of the board of managers, submit a written request to the
joint committee on government and finance that an amount determined by
the Legislature be transferred by appropriation from the principal of
the West Virginia tobacco settlement medical trust fund to the workers'
compensation fund. Upon appropriation of the Legislature, the
commission may expend the assets transferred and any income earned
thereon to satisfy the obligations of the workers' compensation fund.
(2) Upon any exercise of the authority granted by this
subdivision, the executive director shall not increase benefit rates
during the year as provided in section fourteen, article four of this
chapter and shall conduct an investigation into the causes of the
deficit and determine the best course of action to alleviate the
shortfall.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1. To whom compensation fund disbursed; occupational
pneumoconiosis and other occupational diseases included in
"injury" and "personal injury"; definition of occupational pneumoconiosis and other occupational diseases.
(a) Subject to the provisions and limitations elsewhere in this
chapter set forth, the commissioner commission shall disburse the
workers' compensation fund to the employees of employers subject to
this chapter, which employees who have received personal injuries in
the course of and resulting from their covered employment or to the
dependents, if any, of such the employees in case death has ensued,
according to the provisions hereinafter made; and also for the expenses
of the administration of this chapter, as provided in section two,
article one of this chapter: Provided, That in the case of any
employees of the state and its political subdivisions, including:
Counties; municipalities; cities; towns; any separate corporation or
instrumentality established by one or more counties, cities or towns
as permitted by law; any corporation or instrumentality supported in
most part by counties, cities or towns; any public corporation charged
by law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or towns;
any agency or organization established by the department of mental
health for the provision of community health or mental retardation
services and which is supported, in whole or in part, by state, county
or municipal funds; board, agency, commission, department or spending
unit, including any agency created by rule of the supreme court of
appeals, who have received personal injuries in the course of and
resulting from their covered employment, such the employees are
ineligible to receive compensation while such the employees are at the
same time and for the same reason drawing sick leave benefits. Such
The state employees may only use sick leave for nonjob-related absences
consistent with sick leave utilization use and may draw workers'
compensation benefits only where there is a job-related injury. This
proviso shall not apply to permanent benefits: Provided, however, That
such the employees may collect sick leave benefits until receiving
temporary total disability benefits. The division of personnel shall
promulgate rules pursuant to article three, chapter twenty-nine-a of
this code relating to use of sick leave benefits by employees receiving
personal injuries in the course of and resulting from covered employment: Provided further, That in the event an employee is injured
in the course of and resulting from covered employment and such the
injury results in lost time from work, and such the employee for
whatever reason uses or obtains sick leave benefits and subsequently
receives temporary total disability benefits for the same time period,
such the employee may be restored sick leave time taken by him or her
as a result of the compensable injury by paying to his or her employer
the temporary total disability benefits received or an amount equal to
the temporary total disability benefits received. Such The employee
shall be restored sick leave time on a day-for-day basis which
corresponds to temporary total disability benefits paid to the
employer: And provided further, That since the intent of this
paragraph subsection is to prevent an employee of the state or any of
its political subdivisions from collecting both temporary total
disability benefits and sick leave benefits for the same time period,
nothing herein may be construed to prevent in this subsection prevents
an employee of the state or any of its political subdivisions from
electing to receive either sick leave benefits or temporary total
disability benefits but not both.
(b) For the purposes of this chapter, the terms "injury" and
"personal injury" shall include includes occupational pneumoconiosis
and any other occupational disease, as hereinafter defined, and the
commissioner commission shall likewise also disburse the workers'
compensation fund to the employees of such the employers in whose
employment such the employees have been exposed to the hazards of
occupational pneumoconiosis or other occupational disease and in this
state have contracted occupational pneumoconiosis or other occupational
disease, or have suffered a perceptible aggravation of an existing
pneumoconiosis or other occupational disease, or to the dependents, if
any, of such the employees, in case death has ensued, according to the
provisions hereinafter made: Provided, That compensation shall not be
payable for the disease of occupational pneumoconiosis, or death
resulting therefrom from the disease, unless the employee has been
exposed to the hazards of occupational pneumoconiosis in the state of
West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last
exposure to such hazards, or for any five of the fifteen years
immediately preceding the date of such his or her last exposure. An
application for benefits on account of occupational pneumoconiosis
shall set forth the name of the employer or employers and the time
worked for each, and the commissioner. The commission may allocate to
and divide any charges resulting from such claim among the employers
by whom the claimant was employed for as much as sixty days during the
period of three years immediately preceding the date of last exposure
to the hazards of occupational pneumoconiosis. The allocation shall
be based upon the time and degree of exposure with each employer.
(c) For the purposes of this chapter, disability or death
resulting from occupational pneumoconiosis, as defined in the
immediately succeeding sentence, subsection (d) of this section shall
be treated and compensated as an injury by accident.
(d) Occupational pneumoconiosis is a disease of the lungs caused
by the inhalation of minute particles of dust over a period of time due
to causes and conditions arising out of and in the course of the
employment. The term "occupational pneumoconiosis" shall include
includes, but shall is not be limited to, such diseases as silicosis,
anthracosilicosis, coal worker's pneumoconiosis, commonly known as
black lung or miner's asthma, silico-tuberculosis (silicosis
accompanied by active tuberculosis of the lungs), coal worker's
pneumoconiosis accompanied by active tuberculosis of the lungs,
asbestosis, siderosis, anthrax and any and all other dust diseases of
the lungs and conditions and diseases caused by occupational
pneumoconiosis which are not specifically designated herein in this
section meeting the definition of occupational pneumoconiosis set forth
in the immediately preceding sentence this subsection.
(e) In determining the presence of occupational pneumoconiosis,
X-ray evidence may be considered but shall not be accorded greater
weight than any other type of evidence demonstrating occupational
pneumoconiosis.
(f) For the purposes of this chapter, occupational disease means
a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside
of the employment shall be is compensable except when it follows as an
incident of occupational disease as defined in this chapter. Except
in the case of occupational pneumoconiosis, a disease shall be deemed
considered to have been incurred in the course of or to have resulted
from the employment only if it is apparent to the rational mind, upon
consideration of all the circumstances: (1) That there is a direct
causal connection between the conditions under which work is performed
and the occupational disease; (2) that it can be seen to have followed
as a natural incident of the work as a result of the exposure
occasioned by the nature of the employment; (3) that it can be fairly
traced to the employment as the proximate cause; (4) that it does not
come from a hazard to which workmen would have been equally exposed
outside of the employment; (5) that it is incidental to the character
of the business and not independent of the relation of employer and
employee; and (6) that it must appear appears to have had its origin
in a risk connected with the employment and to have flowed from that
source as a natural consequence, though it need not have been foreseen
or expected before its contraction: Provided, That compensation shall
not be payable for an occupational disease or death resulting from the
disease, unless the employee has been exposed to the hazards of the
disease in the state of West Virginia over a continuous period that is
determined to be sufficient, by rule of the board of managers, for the
disease to have occurred in the course of and resulting from the
employee's employment. An application for benefits on account of an
occupational disease shall set forth the name of the employer or
employers and the time worked for each. The commission may allocate
to and divide any charges resulting from such claim among the employers
by whom the claimant was employed. The allocation shall be based upon
the time and degree of exposure with each employer.
(g) No award shall be made under the provisions of this chapter
for any occupational disease contracted prior to the first day of July,
one thousand nine hundred forty-nine. An employee shall be deemed
considered to have contracted an occupational disease within the
meaning of this paragraph subsection if the disease or condition has developed to such an extent that it can be diagnosed as an occupational
disease.
(h) Claims for occupational disease as hereinbefore defined in
subsection (f) of this section, except occupational pneumoconiosis,
shall be processed in like manner as claims for all other personal
injuries
(i) On or before the first day of January, two thousand four,
workers' compensation commission shall adopt standards for the
evaluation of claimants and the determination of a claimant's degree
of whole body medical impairment in claims of carpal tunnel syndrome.
§23-4-1a. Report of injuries by employee.
Every employee who sustains an injury subject to this chapter, or
his or her representative, shall immediately on the occurrence of such
the injury or as soon thereafter as practicable give or cause to be
given to the employer or any of the employer's agents a written notice
of the occurrence of such the injury, with like notice or a copy
thereof of the notice to the workers' compensation division commission
stating in ordinary language the name and address of the employer, the
name and address of the employee, the time, place, nature and cause of
the injury, and whether temporary total disability has resulted
therefrom from the injury. Such The notice shall be given personally
to the employer or any of the employer's agents, or may be sent by
certified mail addressed to the employer at the employer's last known
residence or place of business. Such The notice may be given to the
workers' compensation division commission by mail.
§23-4-1b. Report of injuries by employers.
It shall be is the duty of every employer to report to the
commissioner commission every injury sustained by any person in his or
her employ. Such The report shall be on forms prescribed by the
commissioner commission; and shall be made within five days of the
employer's receipt of the employee's notice of injury, required by
section one-a of this article, or within five days after the employer
has been notified by the commissioner commission that a claim for
benefits has been filed on account of such injury, whichever is sooner,
and, notwithstanding any other provision of this chapter to the contrary, such the five-day period may not be extended by the
commissioner commission, but the employer shall have has the right to
file a supplemental report at a later date. The employer's report of
injury shall include a statement as to whether or not, on the basis of
the information then available, the employer disputes the
compensability of the injury or objects to the payment of temporary
total disability benefits in connection therewith with the injury.
Such The statements by the employer shall not prejudice the employer's
right thereafter to contest the compensability of the injury, or to
object to any subsequent finding or award, in accordance with article
five of this chapter; but an employer's failure to make timely report
of an injury as required herein in this section, or statements in such
the report to the effect that the employer does not dispute the
compensability of the injury or object to the payment of temporary
total disability benefits for such the injury, shall be deemed
considered to be a waiver of the employer's right to object to any
interim payment of temporary total disability benefits paid by the
commissioner commission with respect to any period from the date of
injury to the date of the commissioner's commission's receipt of any
objection made thereto to the interim payments by the employer.
§23-4-1c. Payment of temporary total disability benefits directly to
claimant; payment of medical benefits; payments of benefits
during protest; right of commission to collect payments
improperly made.
(a) In any claim for benefits under this chapter, the workers'
compensation division commission shall determine whether the claimant
has sustained a compensable injury within the meaning of section one
of this article and the division shall enter an order giving all
parties immediate notice of such the decision.
(1) The division commission may enter an order conditionally
approving the claimant's application if the division commission finds
that obtaining additional medical evidence or evaluations or other
evidence related to the issue of compensability would aid the division
commission in making a correct final decision. Benefits shall be paid
during the period of conditional approval; however, if the final decision is one that rejects the claim, then any such the payments
shall be considered an overpayment. The division commission or self-
insured employer may only recover the amount of such an the overpayment
as provided for in subsection (i)(h) of this section.
(2) In making a determination regarding the compensability of a
newly filed claim or upon a filing for the reopening of a prior claim
pursuant to the provisions of section sixteen of this article based
upon an allegation of recurrence, reinjury, aggravation or progression
of the previous compensable injury or in the case of a filing of a
request for any other benefits under the provisions of this chapter,
the division commission shall consider the date of the filing of the
claim for benefits for a determination of the following:
(A) Whether the claimant had a scheduled shutdown beginning
within one week of the date of the filing; or
(B) Whether the claimant received notice within sixty days of the
filing that his or her employment position was to be eliminated,
including, but not limited to, the claimant's worksite, a layoff or the
elimination of the claimant's employment position; or
(C) Whether the claimant is receiving unemployment compensation
benefits at the time of the filing; or
(D) Whether the claimant has received unemployment compensation
benefits within sixty days of the filing.
In the event of an affirmative finding upon any of these four
factors, then such the finding shall be given probative weight in the
overall determination of the compensability of the claim or of the
merits of the reopening request.
(3) Any party shall have the right to may object to the order of
the division commission and obtain an evidentiary hearing as provided
in section one, article five of this chapter: Provided, That if the
claimant files a timely protest to the ruling of a self-insured
employer denying the compensability of the claim, the office of judges
shall provide a hearing on the protest on an expedited basis as
determined by rule of the office of judges.
(b) Where it appears from the employer's report, or from proper
medical evidence, that a compensable injury will result in a disability which will last longer than three seven days as provided in section
five of this article, the division commission may immediately enter an
order commencing the payment of temporary total disability benefits to
the claimant in the amounts provided for in sections six and fourteen
of this article, and the payment of the expenses provided for in
subsection (a), section three of this article, relating to said the
injury, without waiting for the expiration of the thirty-day period
during which objections may be filed to such the findings as provided
in section one, article five of this chapter. The division commission
shall enter an order commencing the payment of temporary total
disability or medical benefits within fifteen days of receipt of either
the employee's or employer's report of injury, whichever is received
sooner, and also upon receipt of either a proper physician's report or
any other information necessary for a determination. The division
commission shall give to the parties immediate notice of any order
granting temporary total disability or medical benefits. When an order
granting temporary total disability benefits is made, the claimant's
return to work potential shall be assessed. The commission may
schedule medical and vocational evaluation of the claimant and assign
appropriate personnel to expedite the claimant's return to work as soon
as reasonably possible.
(c) The division commission may enter orders granting temporary
total disability benefits upon receipt of medical evidence justifying
the payment of such the benefits. In no claim shall The division
commission may not enter an order granting prospective temporary total
disability benefits for a period of more than ninety days: Provided,
That when the division commission determines that the claimant remains
disabled beyond the period specified in the prior order granting
temporary total disability benefits, the division commission shall
enter an order continuing the payment of temporary total disability
benefits for an additional period not to exceed ninety days and shall
give immediate notice to all parties of such the decision.
(d) Upon receipt of the first report of injury in claim, the
division commission shall request from the employer or employers any
wage information necessary for determining the rate of benefits to which the employee is entitled. If an employer does not furnish the
division commission with this information within fifteen days from the
date the division commission received the first report of injury in the
case, the employee shall be paid temporary total disability benefits
for lost time at the rate the division commission obtains from reports
made pursuant to section eleven, article ten, chapter twenty-one-a of
this code subsection (b), section two, article two of this chapter.
If no such wages have been reported, then the division commission shall
make such the payments at the rate the division commission finds would
be justified by the usual rate of pay for the occupation of the injured
employee. The division commission shall adjust the rate of benefits
both retroactively and prospectively upon receipt of proper wage
information. The division commission shall have access to all wage
information in the possession of any state agency.
(e) Subject to the limitations set forth in section sixteen of
this article, upon a finding of the division commission or a self-
insured employer that a claimant who has sustained a previous
compensable injury which has been closed, by any order of the division,
or by the claimant's return to work, suffers further temporary total
disability or requires further medical or hospital treatment resulting
from the compensable injury, the division commission or the self-
insured employer shall immediately enter an order commencing commence
the payment of temporary total disability benefits to the claimant in
the amount provided for in sections six and fourteen of this article,
and the expenses provided for in subsection (a), section three of this
article, relating to said the disability, without waiting for the
expiration of the thirty-day period during which objections may be
filed to such findings as provided in section one, article five of this
chapter. The division commission or self-insured employer shall give
immediate notice to the parties of its order decision.
(f) Where the employer is a subscriber to the workers'
compensation fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the division commission shall
mail all workers' compensation checks paying temporary total disability
benefits directly to the claimant and not to the employer for delivery to the claimant.
(g) Where the employer has elected to carry its own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the division self-insured employer shall immediately issue
a pay order directing the employer to pay such the amounts as are due
the claimant for temporary total disability benefits. A copy of the
order notice shall be sent to the claimant. The self-insured employer
shall commence such payments by mailing or delivering the payments
directly to the employee within ten days of the date of the receipt of
the pay order by the employer. If the self-insured employer believes
that its employee is entitled to benefits, the employer may start
payments before receiving a pay order from the division.
(h) In the event that an employer files a timely objection to any
order of the division with respect to compensability, or any order
denying an application for modification with respect to temporary total
disability benefits, or with respect to those expenses outlined in
subsection (a), section three of this article, the division shall
continue to pay to the claimant such benefits and expenses during the
period of such disability. Where it is subsequently found by the
division that the claimant was not entitled to receive such temporary
total disability benefits or expenses, or any part thereof, so paid,
the division shall, when the employer is a subscriber to the fund,
credit said employer's account with the amount of the overpayment; and,
when the employer has elected to carry its own risk, the division shall
refund to such employer the amount of the overpayment. The amounts so
credited to a subscriber or repaid to a self-insurer shall be charged
by the division to the surplus fund created in section one, article
three of this chapter.
(i)(h) When the employer has protested the compensability or
applied for modification of a temporary total disability benefit award
or expenses and the final decision in such that case determines that
the claimant was not entitled to such the benefits or expenses, the
amount of such benefits or expenses shall be are considered overpaid.
The overpayment is a debt owed to the fund or a self-insured employer,
as the case may be. For all awards made or non-awarded partial benefits paid on and after the effective date of the amendment and
reenactment of the section during the year two thousand three, a lien
for all overpayments is hereby created: Provided, That no lien is
created where the aggregate of a claimant's overpayments is less than
twenty-five dollars. In addition to means otherwise provided by law
for the collection of a debt or enforcement of a lien, the The division
commission or self-insured employer may only recover the amount of
such overpaid benefits or expenses by withholding, in whole or in part,
as determined by the division future permanent partial disability
benefits payable to the individual in the same or other claims and
credit such the amount against the overpayment until it is repaid in
full.
(j)(i) In the event that the division commission finds that,
based upon the employer's report of injury, the claim is not
compensable, the division commission shall provide a copy of such the
employer's report to the claimant in addition to the order denying the
claim.
(j) If a claimant is receiving benefits paid through a wage
replacement plan, salary continuation plan or other benefit plan
provided by the employer to which the employee has not contributed, and
that plan does not provide an offset for temporary total disability
benefits to which the claimant is also entitled under this chapter as
a result of the same injury or disease, the employer shall notify the
commission of the duplication of the benefits paid to the claimant.
Upon receipt of the notice, the commission shall reduce the temporary
total disability benefits provided under this chapter, by an amount
sufficient to ensure that the claimant does not receive monthly
benefits in excess of the amount provided by the employer's plan or the
temporary total disability benefit, whichever is greater: Provided,
That this subsection does not apply to benefits being paid under the
terms and conditions of a collective bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the division commission makes an award for permanent
partial or permanent total disability, the division commission or self-
insured employer shall start payment of benefits by mailing or delivering the amount due directly to the employee within fifteen days
from the date of the award: Provided, That the division commission may
withhold payment of the portion of the award that is the subject of the
following subsection (b) of this section until seventy-seven days have
expired without an objection being filed.
(b) On and after the first day of July, one thousand nine hundred
ninety-five, whenever When the division commission, self-insured
employer, the office of judges or the workers' compensation appeal
board intermediate court of appeals enters an order or provides notice
granting the claimant a permanent total disability award and an
objection or petition for appeal is then filed by the employer or the
division commission, the division commission or self-insured employer
shall begin the payment of monthly permanent total disability benefits.
However, any payment for a back period of benefits from the onset date
of total permanent disability to the date of the award shall be limited
to a period of twelve months of benefits. If, after all litigation is
completed and the time for the filing of any further objections or
appeals to the award has expired, and the award of permanent total
disability benefits is upheld, then the claimant shall receive the
remainder of benefits due to him or her based upon the onset date of
total permanent total disability that was finally determined.
(c) If the claimant is then owed any additional payment of back
permanent total disability benefits, then the division commission or
self-insured employer shall not only pay the claimant the sum owed but
shall also add thereto interest at the simple rate of six percent per
annum from the date of the initial award granting the total permanent
disability to the date of the final order upholding the award. In the
event that an intermediate order directed an earlier onset date of
permanent total disability than was found in the initial award, the
interest-earning period for that additional period shall begin upon the
date of the intermediate award. Any interest payable shall be charged
to the account of the employer or shall be paid by the employer if it
has elected to carry its own risk.
(d) If a timely protest to the award is filed, as provided in
section one or nine, article five of this chapter, the division commission or self-insured employer shall continue to pay to the
claimant such benefits during the period of such the disability unless
it is subsequently found that the claimant was not entitled to receive
the benefits, or any part thereof, so paid, in which event the division
commission shall, where the employer is a subscriber to the fund,
credit said the employer's account with the amount of the overpayment;
and, where the employer has elected to carry the employer's own risk,
the division shall refund to such employer the amount of the
overpayment. The amounts so credited to a subscriber or repaid to a
self-insurer shall be charged by the division to the surplus fund
created by section one, article three of this chapter. If the final
decision in any case determines that a claimant was not lawfully
entitled to benefits paid to him or her pursuant to a prior decision,
such the amount of benefits so benefit paid shall be deemed considered
overpaid. The overpayment is a debt owed to the fund or a self-insured
employer, as the case may be, and a lien therefor is hereby created:
Provided, That no lien is created where the aggregate of a claimant's
overpayments is less than twenty-five dollars. In addition to means
otherwise provided by law for the collection of a debt or enforcement
of a lien, the The division commission or self-insured employer may
only recover such that amount by withholding, in whole or in part, as
determined by the division commission, future permanent partial
disability benefits payable to the individual in the same or other
claims and credit such the amount against the overpayment until it is
repaid in full.
(e) An award for permanent partial disability shall be made as
expeditiously as possible and in accordance with the time frame
requirements promulgated by the board of managers.
(f) If a claimant is receiving benefits paid through a retirement
plan, wage replacement plan, salary continuation plan or other benefit
plan provided by the employer to which the employee has not
contributed, and that plan does not provide an offset for permanent
total disability benefits to which the claimant is also entitled under
this chapter as a result of the same injury or disease, the employer
shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of the notice, the commission shall reduce
the permanent total disability benefits provided under this chapter,
by an amount sufficient to ensure that the claimant does not receive
monthly benefits in excess of the amount provided by the employer's
plan or the permanent total disability benefit, whichever is greater:
Provided, That this subsection does not apply to benefits being paid
under the terms and conditions of a collective bargaining agreement.
§23-4-1e. Temporary total disability benefits not to be paid for
periods of correctional center or jail confinement; denial of
workers' compensation benefits for injuries or disease incurred
while confined.
(a) Notwithstanding any provision of this code to the contrary,
no person shall be jurisdictionally entitled to temporary total
disability benefits for that period of time in excess of three days
during which such that person is incarcerated confined in a
penitentiary or state correctional facility or a county or regional
jail: Provided, That incarceration confinement shall not affect the
claimant's eligibility for payment of expenses: Provided, however,
That this subsection is applicable only to injuries and diseases
incurred prior to any period of incarceration confinement. Upon
release from confinement, the payment of benefits for the remaining
period of temporary total disability shall be made if justified by the
evidence and authorized by order of the commissioner commission.
(b) Notwithstanding any provision of this code to the contrary,
no person incarcerated confined in a penitentiary or state correctional
facility or a county or regional jail who suffers injury or a disease
in the course of and resulting from his or her work during such the
period of incarceration confinement which work is imposed by the
administration of the penitentiary or state correctional facility or
the county or regional jail and is not suffered during such the
person's usual employment with his or her usual employer when not
incarcerated confined shall receive benefits under the provisions of
this chapter for such the injury or disease.
§23-4-1g. Weighing of evidence.
(a) For all awards made on or after the effective date of the
amendment and reenactment of this section during the year two thousand
three, resolution of any issue raised in administering this chapter
shall be based on a weighing of all evidence pertaining to the issue
and a finding that a preponderance of the evidence supports the chosen
manner of resolution. The process of weighing evidence shall include,
but not be limited to, an assessment of the relevance, credibility,
materiality and reliability that the evidence possesses in the context
of the issue presented. Under no circumstances will an issue be
resolved by allowing certain evidence to be dispositive simply because
it is reliable and is most favorable to a party's interests or
position. If after weighing all of the evidence regarding an issue in
which a claimant has an interest, there is a finding that an equal
amount of evidentiary weight exists favoring conflicting matters for
resolution, the resolution that is most consistent with the claimant's
position will be adopted.
(b) Except as provided in subsection (a) of this section, a claim
for compensation filed pursuant to this chapter must be decided on its
merit and not according to any principle that requires statutes
governing workers' compensation to be liberally construed because they
are remedial in nature. No such principle may be used in the
application of law to the facts of a case arising out of this chapter,
or in determining the constitutionality of this chapter.
§23-4-2. Disbursement where injury is self-inflicted or intentionally
caused by employer; legislative declarations and findings;
"deliberate intention" defined.
(a) Notwithstanding anything hereinbefore or hereinafter
contained in this chapter, no employee or dependent of any employee is
entitled to receive any sum from the workers' compensation fund or to
direct compensation from any employer making the election and receiving
the permission mentioned in section nine, article two of this chapter,
from a self-insured employer, or otherwise under the provisions of this
chapter, on account of any personal injury to or death to any employee
caused by a self-inflicted injury or the intoxication of such the
employee. Upon the occurrence of an injury which the employee asserts, or which reasonably appears to have, occurred in the course of and
resulting from the employee's employment, the employer may require the
employee to undergo a blood test for the purpose of determining the
existence or non-existence of evidence of intoxication pursuant to
rules for the administration of the test promulgated by the board of
managers.
(b) For the purpose of this chapter, the commissioner commission
may cooperate with the office of miners' health, safety and training
and the state division of labor in promoting general safety programs
and in formulating rules to govern hazardous employments.
(b) (c) If injury or death result to any employee from the
deliberate intention of his or her employer to produce such the injury
or death, the employee, the widow, widower, child or dependent of the
employee has the privilege to take under this chapter, and has a cause
of action against the employer, as if this chapter had not been
enacted, for any excess of damages over the amount received or
receivable under this chapter.
(c) (d) (1) It is declared that enactment of this chapter and the
establishment of the workers' compensation system in this chapter was
and is intended to remove from the common law tort system all disputes
between or among employers and employees regarding the compensation to
be received for injury or death to an employee except as herein
expressly provided in this chapter, and to establish a system which
compensates even though the injury or death of an employee may be
caused by his or her own fault or the fault of a co-employee; that the
immunity established in sections six and six-a, article two of this
chapter is an essential aspect of this workers' compensation system;
that the intent of the Legislature in providing immunity from common
lawsuit was and is to protect those so immunized from litigation
outside the workers' compensation system except as herein expressly
provided in this chapter; that, in enacting the immunity provisions of
this chapter, the Legislature intended to create a legislative standard
for loss of that immunity of more narrow application and containing
more specific mandatory elements than the common law tort system
concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial
resolution of the question of whether a suit prosecuted under the
asserted authority of this section is or is not prohibited by the
immunity granted under this chapter.
(2) The immunity from suit provided under this section and under
section six-a, article two of this chapter may be lost only if the
employer or person against whom liability is asserted acted with
"deliberate intention". This requirement may be satisfied only if:
(i) It is proved that such the employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of injury
or death to an employee. This standard requires a showing of an
actual, specific intent and may not be satisfied by allegation or proof
of: (A) Conduct which produces a result that was not specifically
intended; (B) conduct which constitutes negligence, no matter how gross
or aggravated; or (C) willful, wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that all
of the following facts are proven:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer had a subjective realization and an
appreciation of the existence of such the specific unsafe working
condition and of the high degree of risk and the strong probability of
serious injury or death presented by such the specific unsafe working
condition;
(C) That such the specific unsafe working condition was a
violation of a state or federal safety statute, rule or regulation,
whether cited or not, or of a commonly accepted and well-known safety
standard within the industry or business of such the employer, which
statute, rule, regulation or standard was specifically applicable to
the particular work and working condition involved, as contrasted with
a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in
subparagraphs (A) through (C), hereof inclusive, of this paragraph,
such the employer nevertheless thereafter exposed an employee to such
the specific unsafe working condition intentionally; and
(E) That such employee so exposed the employee exposed suffered
serious injury or death as a direct and proximate result of such the
specific unsafe working condition.
(iii) In cases alleging liability under the provisions of the
preceding paragraph (ii) of this subdivision:
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule to the
contrary, and consistent with the legislative findings of intent to
promote prompt judicial resolution of issues of immunity from
litigation under this chapter, the court shall dismiss the action upon
motion for summary judgment if it finds, pursuant to rule 56 of the
rules of civil procedure that one or more of the facts required to be
proved by the provisions of subparagraphs (A) through (E), of the
preceding paragraph (ii) inclusive, paragraph (ii) of this subdivision
do not exist, and the court shall dismiss the action upon a timely
motion for a directed verdict against the plaintiff if after
considering all the evidence and every inference legitimately and
reasonably raised thereby most favorably to the plaintiff, the court
determines that there is not sufficient evidence to find each and every
one of the facts required to be proven by the provisions of
subparagraphs (A) through (E), of the preceding paragraph (ii)
inclusive, paragraph (ii) of this subdivision; and
(C) The provisions of this paragraph and of each subparagraph
thereof are severable from the provisions of each other subparagraph,
subsection, section, article or chapter of this code so that if any
provision of a subparagraph of this paragraph is held void, the
remaining provisions of this act and this code remain valid.
(d) (e) The reenactment of this section in the regular session of
the Legislature during the year one thousand nine hundred eighty-three does not in any way affect the right of any person to bring an action
with respect to or upon any cause of action which arose or accrued
prior to the effective date of such the reenactment.
§23-4-3. Schedule of maximum disbursements for medical, surgical,
dental and hospital treatment; legislative approval; guidelines;
preferred provider agreements; charges in excess of scheduled
amounts not to be made; required disclosure of financial interest
in sale or rental of medically related mechanical appliances or
devices; promulgation of rules to enforce requirement;
consequences of failure to disclose; contract by employer with
hospital, physician, etc., prohibited; criminal penalties for
violation; payments to certain providers prohibited; medical cost
and care programs; payments; interlocutory orders.
(a) The workers' compensation division commission shall establish
and alter from time to time, as the division may determine to be
commission determines appropriate, a schedule of the maximum reasonable
amounts to be paid to health care providers, providers of
rehabilitation services, providers of durable medical and other goods
and providers of other supplies and medically related items or other
persons, firms or corporations for the rendering of treatment or
services to injured employees under this chapter. The division
commission also, on the first day of each regular session and also from
time to time, as the division commission may consider appropriate,
shall submit the schedule, with any changes thereto, to the
Legislature. The promulgation of the schedule is not subject to the
legislative rule-making review procedures established in sections nine
through sixteen, article three, chapter twenty-nine-a of this code.
The division commission shall disburse and pay from the fund for
such personal injuries to such the employees as may be who are entitled
thereto hereunder to the benefits under this chapter as follows:
(1) Such sums Sums for health care services, rehabilitation
services, durable medical and other goods and other supplies and
medically related items as may be reasonably required. The division
commission shall determine that which is reasonably required within the meaning of this section in accordance with the guidelines developed by
the health care advisory panel pursuant to section three-b of this
article: Provided, That nothing herein in this section shall prevent
the implementation of guidelines applicable to a particular type of
treatment or service or to a particular type of injury before
guidelines have been developed for other types of treatment or services
or injuries: Provided, however, That any guidelines for utilization
review which are developed in addition to the guidelines provided for
in said section may be utilized used by the division commission until
superseded by guidelines developed by the health care advisory panel
pursuant to said section. Each health care provider who seeks to
provide services or treatment which are not within any such guideline
shall submit to the division commission specific justification for the
need for such the additional services in the particular case and the
division commission shall have the justification reviewed by a health
care professional before authorizing any such the additional services.
The division is authorized to commission may enter into preferred
provider and managed care agreements.
(2) Payment for health care services, rehabilitation services,
durable medical and other goods and other supplies and medically
related items authorized under this subsection may be made to the
injured employee or to the person, firm or corporation who or which has
rendered such the treatment or furnished health care services,
rehabilitation services, durable medical or other goods or other
supplies and items, or who has advanced payment for same them, as the
division may deem commission considers proper, but no such payments or
disbursements shall be made or awarded by the division commission
unless duly verified statements on forms prescribed by the division
shall be commission have been filed with the division commission within
two years six months after the rendering of such the treatment or the
delivery of such goods, supplies or items or within ninety days of a
subsequent compensability ruling if a claim is initially rejected:
Provided, That no payment hereunder under this section shall be made
unless such a verified statement shows no charge for or with respect
to such the treatment or for or with respect to any of the items specified above in this subdivision has been or will be made against
the injured employee or any other person, firm or corporation., and
when When an employee covered under the provisions of this chapter is
injured in the course of and as a result of his or her employment and
is accepted for health care services, rehabilitation services, or the
provision of durable medical or other goods or other supplies or
medically related items, the person, firm or corporation rendering such
the treatment is hereby prohibited from making may not make any charge
or charges therefor for the treatment or with respect thereto to the
treatment against the injured employee or any other person, firm or
corporation which would result in a total charge for the treatment
rendered in excess of the maximum amount set forth therefor in the
division's commission's schedule established as aforesaid.
(3) Any pharmacist filling a prescription for medication for a
workers' compensation claimant shall dispense a generic brand of the
prescribed medication if a generic brand exits. If a generic brand
does not exist, then the pharmacist may dispense the name brand. In
the event that a physician wishes to prescribe the use of the name
brand of a given prescription medication, then he or she must indicate
in his or her own handwriting on the prescription order form that the
brand name medication is to be issued. In the event that a claimant
wishes to receive the name brand medication in lieu of the generic
brand and if the physician has not indicated that the brand name is
required, then the claimant may receive the name brand medication but,
in that event, the claimant will be is personally liable for the
difference in costs between the generic brand medication and the brand
name medication.
(4) In the event that a claimant elects to receive health care
services from a health care provider from outside of the state of West
Virginia and if that health care provider refuses to abide by and
accept as full payment the reimbursement made by the workers'
compensation division commission pursuant to the schedule of maximum
reasonable amounts of fees authorized by subsection (a) of this
section, then, with the exceptions noted below, the claimant will be
is personably liable for the difference between the scheduled fee and the amount demanded by the out-of-state health care provider.
(A) In the event of an emergency where there is an urgent need
for immediate medical attention in order to prevent the death of a
claimant or to prevent serious and permanent harm to the claimant, if
the claimant receives the emergency care from an out-of-state health
care provider who refuses to accept as full payment the scheduled
amount, then that the claimant will is not be personally liable for the
difference between the amount scheduled and the amount demanded by the
health care provider. Upon the claimant's attaining a stable medical
condition and being able to be transferred to either a West Virginia
health care provider or an out-of-state health care provider who has
agreed to accept the scheduled amount of fees as payment in full, if
such the claimant refuses to seek the specified alternative health care
providers, then he or she will be is personally liable for the
difference in costs between the scheduled amount and the amount
demanded by the health care provider for services provided after
attaining stability and being able to be transferred.
(B) In the event that there is no health care provider reasonably
near to the claimant's home who is qualified to provide the claimant's
needed medical services and who is either located in the state of West
Virginia or who has agreed to accept as payment in full the scheduled
amounts of fees, then the division commission, upon application by the
claimant, may authorize the claimant to receive medical services from
another health care provider. and such The claimant shall is not be
personally liable for the difference in costs between the scheduled
amount and the amount demanded by the health care provider.
(b)(1) No employer shall enter into any contracts with any
hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or surgical
attention therein to any employee for injury compensable within the
purview of this chapter, and no employer shall permit or require any
employee to contribute, directly or indirectly, to any fund for the
payment of such medical, surgical, dental or hospital service within
such hospital for such the compensable injury. Any employer violating
this section subsection shall be is liable in damages to the employer's employees as provided in section eight, article two of this chapter,
and any employer or hospital or agent or employee thereof violating the
provisions of this section shall be is guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fine not less than one
hundred dollars nor more than one thousand dollars or by imprisonment
not exceeding one year, or both.: Provided, That the foregoing
(2) The provisions of this subsection shall not be deemed to
prohibit an employer from participating in a managed health care plan,
including, but not limited to, a preferred provider organization or
program or a health maintenance organization or managed care
organization or other medical cost containment relationship with the
providers of medical, hospital or other health care. An employer that
provides a managed health care plan approved by the commission for its
employees may require an injured employee to use health care providers
authorized by the managed health care plan for care and treatment of
his or her compensable injuries. : Provided, however, That nothing
in this section shall be deemed to restrict the right of a claimant to
If the employer does not provide a managed health care plan or program,
the claimant may select his or her initial health care provider for
treatment of a compensable injury or disease, except as provided under
subdivision (3) of this subsection. Should such If a claimant
thereafter wish wishes to change his or her health care provider and
if his or her employer has established and maintains a managed health
care plan, program consisting of a preferred provider organization or
program, or a health maintenance organization, then the claimant shall
select a new health care provider through such the managed health care
program plan. A claimant who has used the providers under the
employer's managed health care plan may select a health care provider
outside the employer's plan for treatment of the compensable injury or
disease if the employee receives written approval from the commission
to do so and the approval is given pursuant to criteria established by
rule of the commission.
(3) Moreover, if If the division commission enters into an
agreement which has been approved by the compensation programs
performance council board of managers with a managed health care plan, including, but not limited to, a preferred provider organization or
program, a health maintenance organization or managed care organization
or other health care delivery organization or organizations or other
medical cost containment relationship with the providers of medical,
hospital or other health care, then:
(A) If an injured employee's employer does not provide a managed
health care plan approved by the commission for its employees as
described in subdivision (2) of this subsection, the commission may
require the employee to use health care providers authorized by the
commission's managed health care plan for care and treatment of his or
her compensable injuries; and
(B) If a claimant seeks to change his or her initial choice of
health care provider where neither the employer or the commission had
an approved health care management plan at the time the initial choice
was made, and if the claimant's employer does not provide access to
such an organization a plan as part of the employer's general health
insurance benefit, then the claimant shall be provided with a new
health care provider from the division's commission's preferred
provider organization or program, health maintenance organization or
other health care delivery organization or organizations managed health
care plan available to him or her.
(c) When an injury has been reported to the division commission
by the employer without protest, the division may pay, or order an
employer who or which made the election and who or which received the
permission mentioned in section nine, article two of this chapter to
commission or self-insured employer may pay, within the maximum amount
provided by schedule established by the division as aforesaid under
this section, bills for health care services without requiring the
injured employee to file an application for benefits.
(d) The division commission or self-insured employer shall
provide for the replacement of artificial limbs, crutches, hearing
aids, eyeglasses and all other mechanical appliances provided in
accordance with this section which later wear out, or which later need
to be refitted because of the progression of the injury which caused
the same devices to be originally furnished, or which are broken in the course of and as a result of the employee's employment. The fund
commission or self-insured employer shall pay for these devices, when
needed, notwithstanding any time limits provided by law.
(e) No payment shall be made to a health care provider who is
suspended or terminated under the terms of section three-c of this
article except as provided in subsection (c) of said that section.
(f) The division is authorized to commission may engage in and
contract for medical cost containment programs, pharmacy benefits
management programs, medical case management programs and utilization
review programs. Payments for these programs shall be made from the
supersedeas reserve of the surplus workers' compensation fund. Any
order issued pursuant to any such the program shall be interlocutory
in nature until an objecting party has exhausted all review processes
provided for by the division commission.
(g) Notwithstanding the foregoing provisions of this section, the
division commission may establish fee schedules, make payments and take
other actions required or allowed pursuant to article twenty-nine-d,
chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
(a) The commissioner commission shall establish a health care
advisory panel consisting of representatives of the various branches
and specialties among health care providers in this state. There shall
be a minimum of five members of the health care advisory panel who
shall receive reasonable compensation for their services and
reimbursement for reasonable actual expenses. Each member of this
panel shall be provided appropriate professional or other liability
insurance, without additional premium, by the state board of risk and
insurance management created pursuant to article twelve, chapter
twenty-nine of this code. The panel shall:
(a)(1) Establish guidelines for the health care which is
reasonably required for the treatment of the various types of injuries
and occupational diseases within the meaning of section three of this
article;
(b)(2) Establish protocols and procedures for the performance of
examinations or evaluations performed by physicians or medical examiners pursuant to sections seven-a and eight of this article;
(c)(3) Assist the commissioner commission in establishing
guidelines for the evaluation of the care provided by health care
providers to injured employees for purposes of section three-c of this
article;
(d)(4) Assist the commissioner commission in establishing
guidelines as to regarding the anticipated period of disability for the
various types of injuries pursuant to subsection (b), section seven-a
of this article; and
(e)(5) Assist the commissioner commission in establishing
appropriate professional review of requests by health care providers
to exceed the guidelines for treatment of injuries and occupational
diseases established pursuant to subdivision (a)(1) of this section.
(b) In addition to the requirements of subection (a) of this
section, on or before the first day of September, two thousand three,
the board of managers shall promulgate a rule establishing the process
for the medical management of claims.
§23-4-3c. Suspension or termination of providers of health care.
(a) The commissioner commission may suspend for up to one year
three years or permanently terminate the right of any health care
provider, including a provider of rehabilitation services within the
meaning of section nine of this article, to obtain payment for services
rendered to injured employees:
(1) If the commissioner commission finds that the health care
provider is regularly providing to injured employees health care that
is excessive, medically unreasonable or unethical, care to injured
employees which shall include abusing the workers' compensation system
in the treatment provided to injured employees or in its billing
practices;
(2) If the commissioner commission finds that a health care
provider is attempting to make any charge or charges against the
injured employee or any other person, firm or corporation which would
result in a total charge for any treatment rendered in excess of the
maximum amount set by the commissioner commission, in violation of
section three of this article;
(3) If the commissioner commission determines that the health
care provider has had his or her license to practice suspended or
terminated by the appropriate authority in this state or in another
state; or
(4) If the commissioner commission determines that the health
care provider has been convicted of any crime in relation to his or her
practice, or any felony .; or
(5) If the commission determines that the health care provider
has made medically unsupported recommendations regarding a percentage
of disability or has prescribed medically unsupported treatment
including medication. The rules promulgated under this section shall
establish criteria for determining whether recommendations or treatment
are medically unsupported.
The commissioner executive director shall consult with medical
experts, including the health care advisory panel established pursuant
to section three-b of this article, for purposes of determining whether
a health care provider should be suspended or terminated pursuant to
this section.
(b) Upon the commissioner determining determination by the
executive director that there is probable cause to believe that a
health care provider should be suspended or terminated pursuant to this
section, the commissioner executive director shall provide such the
health care provider with written notice which shall state stating the
nature of the charges against the health care provider and the time and
place at which such of a hearing. Upon issuance of the notice and due
consideration of the executive director's fiduciary duties, the
executive director may immediately suspend payment to the health care
provider pending the final order of suspension or termination. The
health care provider shall appear to show cause why the health care
provider's right to receive payment under this chapter should not be
suspended or terminated. at which time and place such At the hearing
the health care provider shall be afforded an opportunity to review the
commissioner's evidence, and to cross-examine the commissioner's
witnesses, and also afforded the opportunity to present testimony and
enter evidence in support of its position. The hearing shall be conducted in accordance with the provisions of article five, chapter
twenty-nine-a of this code. The hearing may be conducted by the
commissioner executive director or a hearing officer appointed by the
commissioner executive director. The commissioner executive director
or hearing officer shall have has the power to subpoena witnesses,
papers, records, documents and other data and things in connection with
the proceeding hereunder under this subsection and to administer oaths
or affirmations in any such the hearing. If, after reviewing the
record of such the hearing, the commissioner executive director
determines that the right of such the health care provider to obtain
payment under this article should be suspended for a specified period
of time or should be permanently terminated, the commissioner executive
director shall issue a final order suspending or terminating the right
of such the health care provider to obtain payment for services under
this article. Any health care provider so suspended or terminated shall
be notified in writing and the notice shall specify the reasons for the
action so taken. The order shall set forth findings of fact and
conclusions of law in support of the decision. The order shall be
mailed to the health care provider by certified mail, return receipt
requested. Any appeal by the health care provider shall be brought in
the circuit court of Kanawha County or in the county in which the
provider's principal place of business is located. The scope of the
court's review of such an appeal the final order shall be as provided
in section four, of said article five, chapter twenty nine-a of this
code. The provider may be suspended or terminated, based upon the
final order of the commissioner executive director or hearing officer,
pending final disposition of any appeal. Such The final order may be
stayed by the circuit court after hearing, but shall not be stayed in
or as a result of any ex parte proceeding. If the health care provider
does not appeal the final order of the commissioner within thirty days,
it shall be is final.
(c) No payment shall be made to a health care provider or to an
injured employee for services provided by a health care provider after
the effective date of a commissioner's final order terminating or
suspending the health care provider: Provided, That nothing herein in this subsection shall prohibit payment by the commissioner executive
director or self-insured employer to a suspended or terminated health
care provider for medical services rendered where the medical services
were rendered to an injured employee in an emergency situation. The
suspended or terminated provider is prohibited from making may not make
any charge or charges for any services so provided against the injured
employee unless the injured employee, before any services are rendered,
is given notice by the provider in writing that the provider does not
participate in the workers' compensation program and that the injured
employee will be solely responsible for all payments to the provider
and unless the injured employee also signs a written consent, before
any services are rendered, to make payment directly and to waive any
right to reimbursement from the commissioner executive director or the
self-insured employer. The written consent and waiver signed by the
injured employee shall be filed by the provider with the commissioner
executive director and shall be made a part of the claim file.
(d) The commissioner executive director shall notify each
claimant, whose duly authorized treating physician or other health care
provider has been suspended or terminated pursuant to this section, of
the suspension or termination of the provider's rights to obtain
payment under this chapter and shall assist the claimant in arranging
for transfer of his or her care to another physician or provider.
(e) Each suspended or terminated provider shall post in the
provider's public waiting area or areas a written notice, in the form
required by the commissioner executive director, of the suspension or
termination of the provider's rights to obtain payment under this
chapter.
(f) A suspended or terminated provider may apply for
reinstatement at the end of the term of suspension or, if terminated,
after one year from the effective date of termination.
(g) The commissioner board of managers shall promulgate rules for
the purpose of implementing this section.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal
penalties.
(a) In case the personal injury causes death, reasonable funeral or cemetery expense, in an amount to be fixed, from time to time, by
the division commission shall be paid from the fund, payment to be made
to the persons who have furnished the services and supplies, or to the
persons who have advanced payment for same the services and supplies,
as the division commission may deem determine proper, in addition to
such any award as may be made to the employee's dependents.
(b) A funeral director or cemeterian, or any person who furnished
the services and supplies associated with the funeral or cemetery
expenses, or a person who has advanced payment for same the services
and supplies, is prohibited from making any charge or charges against
the employee's dependents for funeral expenses which would result in
a total charge for funeral expenses in excess of the amount fixed by
the division commission unless:
(1) The person seeking funeral expenses notifies, in writing and
prior to the rendering of any service, the employee's dependent as to
the exact cost of the service and the exact amount the employee's
dependent would be responsible for paying in excess of the amount fixed
by the division commission; and
(2) The person seeking funeral expenses secures, in writing and
prior to the rendering of any service, consent from the employee's
dependent that he or she will be responsible to make payment for the
amount in excess of the amount fixed by the division commission.
(c) Any person who knowingly and willfully seeks or receives
payment of funeral expenses in excess of the amount fixed by the
division commission without satisfying both of the requirements of
subsection (b) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined three thousand dollars or confined
in a county or regional jail for a definite term of confinement of
twelve months, or both.
§23-4-5. Benefits for first seven days after injury.
If the period of disability does not last longer than three seven
days from the day the employee leaves work as the result of the injury,
no award shall be allowed, except the disbursements provided for in the
two next preceding sections, but if the period of disability lasts
longer than seven days from the day the employee leaves work as a result of the injury, an award shall be allowed for the first three
seven days of such disability.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of
this chapter for personal injury, the compensation shall be as provided
in the following schedule:
(a) The expressions terms "average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury" and "average
weekly wage in West Virginia", as used in this chapter, shall have the
meaning and shall be computed as set forth in section fourteen of this
article except for the purpose of computing temporary total disability
benefits for part-time employees pursuant to the provisions of section
six-d of this article.
(b) If For all awards made on and after the effective date of the
amendment and reenactment of this section during the year two thousand
three, if the injury causes temporary total disability, the employee
shall receive during the continuance thereof of the disability a
maximum weekly benefit to be computed on the basis of seventy sixty-six
and two-thirds percent of the average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury, not to exceed
one hundred percent of the average weekly wage in West Virginia:
Provided, That in no event shall an award for temporary total
disability be subject to annual adjustments resulting from changes in
the average weekly wage in West Virginia: Provided, however, in the
case of a claimant whose injury occurred prior to the second day of
February, one thousand nine hundred ninety-five, award was granted
prior to the effective date of the amendment and reenactment of this
section during the year two thousand three, the maximum benefit rate
shall be the rate applied under the prior enactment of this subsection
which was in effect at the time the injury occurred, and the rate shall
not be affected by the amendment and reenactment of this section during
the regular session of the Legislature in the year one thousand nine
hundred ninety-five. The minimum weekly benefits paid hereunder under
this subdivision shall not be less than thirty-three and one-third
percent of the average weekly wage in West Virginia, except as provided in sections six-d and nine of this article. In no event, however,
shall such the minimum weekly benefits exceed the level of benefits
determined by use of the then applicable federal minimum hourly wage:
Provided, however, That any claimant receiving permanent total
disability benefits, permanent partial disability benefits or
dependents' benefits prior to the first day of July, one thousand nine
hundred ninety-four, shall not have his or her benefits reduced based
upon the requirement herein in this subdivision that the minimum weekly
benefit shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section shall be is limited as
follows: Aggregate award for a single injury causing temporary
disability shall be for a period not exceeding two hundred eight weeks;
aggregate award for a single injury for which an award of temporary
total disability benefits is made on or after the effective date of the
amendment and reenactment of this section in the year two thousand
three shall be for a period not exceeding one hundred four weeks.
Notwithstanding any other provision of this subdivision to the
contrary, no person may receive temporary total disability benefits
under an award for a single injury for a period exceeding one hundred
four weeks from the effective date of the amendment and reenactment of
this section in the year two thousand three.
(d) For all awards of permanent total disability benefits that
are made on or after the second day of February, one thousand nine
hundred ninety-five, including those claims in which a request for an
award was pending before the division or which were in litigation but
not yet submitted for a decision, then benefits shall be payable until
the claimant attains the age necessary to receive federal old age
retirement benefits under the provisions of the Social Security Act,
42 U. S. C. 401 and 402, in effect on the effective date of this
section. Such a The claimant shall be paid benefits so as not to exceed
a maximum benefit of sixty-six and two-thirds percent of the claimant's
average weekly wage earnings, wherever earned, at the time of the date
of injury not to exceed one hundred percent of the average weekly wage
in West Virginia. The minimum weekly benefits paid hereunder under
this section shall be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total
disability benefits was made prior to the second day of February, one
thousand nine hundred ninety-five, such the awards shall continue to
be paid at the rate in effect prior to the said that date, subject to
annual adjustments for changes in the average weekly wage in West
Virginia: Provided, That the provisions of sections one through eight,
inclusive, article four-a of this chapter shall be applied thereafter
to all such prior awards that were previously subject to its
provisions. A single or aggregate permanent disability of eighty-five
percent or more shall entitle entitles the employee to a rebuttable
presumption of a permanent total disability for the purpose of
paragraph (2), subdivision (n) of this section: Provided, however,
That the claimant must also be at least forty fifty percent medically
impaired upon a whole body basis or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f) of
this section. The presumption may be rebutted if the evidence
establishes that the claimant is not permanently and totally disabled
pursuant to subdivision (n) of this section. Under no circumstances
shall may the division commission grant an additional permanent
disability award to a claimant receiving a permanent total disability
award: Provided further, That if any claimant thereafter sustains
another compensable injury and has permanent partial disability
resulting therefrom from the injury, the total permanent disability
award benefit rate shall be computed at the highest benefit rate
justified by any of the compensable injuries, and the cost of any
increase in the permanent total disability benefit rate shall be paid
from the second injury reserve created by section one, article three
of this chapter.
(e)(1) For all awards made on or after the second day of
February, one thousand nine hundred ninety-five, effective date of the
amendment and reenactment of this section during the year two thousand
three, if the injury causes permanent disability less than permanent
total disability, the percentage of disability to total disability
shall be determined and the award computed on the basis of four weeks'
compensation for each percent of disability determined, at the maximum or minimum benefit rates provided for in subdivision (d) of this
section: as follows: Sixty-six and two-thirds percent of the average
weekly wage earnings, wherever earned, of the injured employee at the
date of injury, not to exceed seventy percent of the average weekly
wage in West Virginia: Provided, That in no event shall an award for
permanent partial disability be subject to annual adjustments resulting
from changes in the average weekly wage in West Virginia: Provided,
however, in the case of a claimant whose injury occurred award was
granted prior to the second day of February, one thousand nine hundred
ninety-five, effective date of the amendment and reenactment of this
section during the year two thousand three the maximum benefit rate
shall be the rate applied under the prior enactment of this section
which was in effect at the time the injury occurred, and the rate shall
not be affected by the amendment and reenactment of this section during
the regular session of the Legislature in the year one thousand nine
hundred ninety-five.
(2) If a claimant is released by his or her treating physician to
return to work at the job he or she held before the occupational injury
occurred and if the claimant's preinjury employer does not offer the
preinjury job or a comparable job to the employee when such a position
is available to be offered, then the award for the percentage of
partial disability shall be computed on the basis of six weeks of
compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be as
provided in subdivision (b) of this section for temporary total
disability.
(f) If the injury results in the total loss by severance of any
of the members named in this subdivision, the percentage of disability
shall be determined by the percentage of disability, specified in the
following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a five
percent disability.
The loss of other toes shall be considered a four percent disability.
The loss of other toes (one phalanx) shall be considered a two
percent disability.
The loss of all toes shall be considered a twenty-five percent
disability.
The loss of forepart of foot shall be considered a thirty percent
disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a five
percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a seven
percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index fingers shall be considered a thirty-two percent disability.
The loss of index and middle fingers shall be considered a twenty
percent disability.
The loss of middle and ring fingers shall be considered a fifteen
percent disability.
The loss of ring and little fingers shall be considered a ten
percent disability.
The loss of thumb, index and middle fingers shall be considered
a forty percent disability.
The loss of index, middle and ring fingers shall be considered a
thirty percent disability.
The loss of middle, ring and little fingers shall be considered
a twenty percent disability.
The loss of four fingers shall be considered a thirty-two percent
disability.
The loss of hand shall be considered a fifty percent disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent disability.
The total and irrecoverable loss of the sight of one eye shall be
considered a thirty-three percent disability. For the partial loss of
vision in one or both eyes, the percentages of disability shall be
determined by the division commission, using as a basis the total loss
of one eye.
The total and irrecoverable loss of the hearing of one ear shall
be considered a twenty-two and one-half percent disability. The total
and irrecoverable loss of hearing of both ears shall be considered a
fifty-five percent disability.
For the partial loss of hearing in one or both ears, the
percentage of disability shall be determined by the division
commission, using as a basis the total loss of hearing in both ears.
Should If a claimant sustain sustains a compensable injury which
results in the total loss by severance of any of the bodily members
named in this subdivision, die or dies from sickness or noncompensable
injury before the division commission makes the proper award for such the injury, the division commission shall make such the award to the
claimant's dependents as defined in this chapter, if any; such the
payment to be made in the same installments that would have been paid
to claimant if living: Provided, That no payment shall be made to any
surviving spouse of such the claimant after his or her remarriage and
that this liability shall not accrue to the estate of such the claimant
and shall is not be subject to any debts of, or charges against, such
the estate.
(g) Should If a claimant to whom has been made a permanent
partial award die dies from sickness or noncompensable injury, the
unpaid balance of such the award shall be paid to claimant's dependents
as defined in this chapter, if any; such the payment to be made in the
same installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of such
the claimant after his or her remarriage, and that this liability shall
not accrue to the estate of such the claimant and shall is not be
subject to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have has the force and effect
of an award.
(i) For the purposes of this chapter, with the exception of those
injuries provided for in subdivision (f) of this section and in section
six-b of this article, the degree of permanent disability other than
permanent total disability shall be determined exclusively by the
degree of whole body medical impairment that a claimant has suffered.
For those injuries provided for in subdivision (f) of this section and
section six-b of this article, the degree of disability shall be
determined exclusively by the provisions of said that subdivision and
said that section. The occupational pneumoconiosis board created
pursuant to section eight-a of this article shall premise its decisions
on the degree of pulmonary function impairment that claimants suffer
solely upon whole body medical impairment. The workers' compensation
division commission shall adopt standards for the evaluation of
claimants and the determination of a claimant's degree of whole body
medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent
partial disability that shall be awarded to the claimant. This
subdivision shall be is applicable to all injuries incurred and
diseases with a date of last exposure on or after the second day of
February, one thousand nine hundred ninety-five, to all applications
for an award of permanent partial disability made on and after such
that date and to all applications for an award of permanent partial
disability that were pending before the division commission or pending
in litigation but not yet submitted for decision on and after such that
date. The prior provisions of this subdivision shall remain in effect
for all other claims.
(j) From a list of names of seven persons submitted to the
commissioner executive director by the health care advisory panel, the
commissioner executive director shall appoint an interdisciplinary
examining board consisting of five members to evaluate claimants,
including by examination if the board so elects. The board shall be
composed of three qualified physicians with specialties and expertise
qualifying them to evaluate medical impairment and two vocational
rehabilitation specialists who are qualified to evaluate the ability
of a claimant to perform gainful employment with or without retraining.
One member of the board shall be designated annually as chairperson by
the commissioner executive director. The term of office of each member
of the board shall be six years and until his or her successor has been
appointed and has qualified: Provided, That two of the persons
initially appointed shall serve a term of six years, two of the
remaining persons shall serve a term of four years and the remaining
member shall serve a term of two years. Any member of the board may
be appointed to any number of terms. Any two physician members and one
vocational rehabilitation specialist member shall constitute a quorum
for the transaction of business. The commissioner executive director,
from time to time, shall fix the compensation to be paid to each member
of the board, and the members shall are also be entitled to reasonable
and necessary traveling and other expenses incurred while actually
engaged in the performance of their duties. The board shall perform
the duties and responsibilities as assigned by the provisions of this chapter, consistent with the administrative policies developed by the
commissioner executive director with the assistance approval of the
compensation programs performance council board of managers.
(1) The executive director shall establish requirements for the
proper completion and support for an application for permanent total
disability benefits within an existing or a new rule no later than the
first day of January, two thousand four. Upon adoption of the rule by
the board of managers, no issue of permanent total disability may be
referred to the interdisciplinary examining board unless a properly
completed and supported application for permanent total disability
benefits has been first filed with the commission. Prior to the
referral of any issue to the interdisciplinary examining board, the
division commission shall conduct such examinations of the claimant as
that it finds necessary and obtain all pertinent records concerning the
claimant's medical history and reports of examinations and forward them
to the board at the time of the referral. The division commission shall
provide adequate notice to the employer of the filing of the request
for a permanent total disability award and the employer shall be
granted an appropriate period in which to respond to the request. The
claimant and the employer may furnish all pertinent information to the
board and shall furnish to the board any information requested by the
board. The claimant and the employer may each submit no more than one
report and opinion regarding each issue present in a given claim. The
employer shall be entitled to may have the claimant examined by medical
specialists and vocational rehabilitation specialists: Provided, That
the employer is entitled to only one such examination on each issue
present in a given claim. Any additional examinations must be approved
by the division commission and shall be granted only upon a showing of
good cause. The reports from all employer-conducted examinations must
be filed with the board and served upon the claimant. The board may
request that those persons who have furnished reports and opinions
regarding a claimant provide it with such additional information as
considered necessary by the board may deem necessary. Both the
claimant and the employer, as well as the division commission, may
submit reports from experts challenging or supporting the other reports in the record regardless of whether or not such an the expert examined
the claimant or relied solely upon the evidence of record.
(2) If the board or a quorum thereof of the board elects to
examine a claimant, the individual members shall conduct such any
examinations as that are pertinent to each of their specialties. If
a claim presents an issue beyond the expertise of the board, the board
may obtain advice or evaluations by other specialists. In addition,
if the compensation programs performance council board of managers
determines that the number of applications pending before the
interdisciplinary examining board has exceeded the level at which the
board can review and make recommendations within a reasonable time,
then the council board of managers may authorize the commissioner
executive director to appoint such any additional members to the board
as may be that are necessary to reduce the backlog of applications.
Such The additional members shall be recommended by the health care
advisory panel. and the commissioner The executive director may make
such any appointments as he or she chooses from the recommendations.
The additional board members shall not serve a set term but shall serve
until the council board of managers determines that the number of
pending applications has been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters related to
the determination of permanent total disability under the provisions
of subdivision (n) of this section and to questions related to medical
cost containment, utilization review decisions and managed care
decisions arising under section three of this article.
(4) In the event the board members elect to examine a claimant,
the board shall prepare a report stating the tests, examinations,
procedures and other observations that were made, the manner in which
each was conducted and the results of each. The report shall state the
findings made by the board and the reasons therefor for the findings.
Copies of the reports of all such examinations made by the board shall
be served upon the parties and the division and each commission. Each
shall be given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board shall state its initial recommendations to the division commission in writing with an explanation for each such
recommendation setting forth the reasons for each. The recommendations
shall be served upon the parties and the division commission and each
shall be afforded a thirty-day opportunity to respond in writing to the
board regarding the board's recommendations. The board shall then
review any such responses and issue its final recommendations. The
final recommendations shall then be effectuated by the entry of an
appropriate order by the division commission. For all awards for
permanent total disability where the claim was filed on or after the
effective date of the amendment and reenactment of this section in the
year two thousand three, the commission shall establish the date of
onset of the claimant's permanent total disability as the date when a
properly completed and supported application for permanent total
disability benefits as prescribed in subdivision (1) of this subsection
that results in a finding of permanent total disability was filed with
the commission: Provided, That upon notification of the commission by
a claimant or his or her representative that the claimant seeks to be
evaluated for permanent total disability, the commission shall send the
claimant or his or her representative the proper application form. The
commission shall set time limits for the return of the application.
A properly completed and supported application returned within the time
limits set by the commission shall be treated as if received on the
date the commission was notified the claimant was seeking evaluation
for permanent total disability: Provided, however, That
notwithstanding any other provision of this section to the contrary,
the onset date may not be sooner than the date upon which the claimant
meets the percentage thresholds of prior permanent partial disability
that are established by subsection (n) of this section as a
prerequisite to the claimant's qualification for consideration for a
permanent total disability award.
(6) Except as noted below, objections pursuant to section one,
article five of this chapter to any such order shall be limited in
scope to matters within the record developed before the workers'
compensation division commission and the board and shall further be
limited to the issue of whether the board properly applied the standards for determining medical impairment, if applicable, and the
issue of whether the board's findings are clearly wrong in view of the
reliable, probative and substantial evidence on the whole record.
Should If either party contend contends that the claimant's condition
has changed significantly since the review conducted by the board, the
party may file a motion with the administrative law judge, together
with a report supporting that assertion. Upon the filing of such the
motion, the administrative law judge shall cause a copy of the report
to be sent to the examining board asking the board to review the report
and provide such comments as if the board chooses within sixty days of
the board's receipt of the report. The board may then either supply
such comments or, at the board's discretion, request that the claim be
remanded to the board for further review by the board. If remanded,
the claimant is not required to submit to further examination by the
employer's medical specialists or vocational rehabilitation
specialists. Following any such the remand, the board shall file its
recommendations with the administrative law judge for his or her
review. If the board elects to respond with comments, such the
comments shall be filed with the administrative law judge for his or
her review. Following the receipt of either the board's
recommendations or comment comments, the administrative law judge shall
then issue a written decision ruling upon the asserted change in the
claimant's condition. No additional evidence may be introduced during
the review of the objection before the office of judges or elsewhere
on appeal: Provided, That each party and the division commission may
submit one written opinion on each issue pertinent to a given claim
based upon a review of the evidence of record either challenging or
defending the board's findings and conclusions. Thereafter, based upon
the evidence then of record, the administrative law judge shall issue
a written decision containing his or her findings of fact and
conclusions of law regarding each issue involved in the objection.
(k) Compensation payable under any subdivision of this section
shall not exceed the maximum nor be less than the weekly benefits
specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this chapter, temporary total disability benefits payable under subdivision (b) of
this section shall not be deductible from permanent partial disability
awards payable under subdivision (e) or (f) of this section.
Compensation, either temporary total or permanent partial, under this
section shall be payable only to the injured employee and the right
thereto to the compensation shall not vest in his or her estate, except
that any unpaid compensation which would have been paid or payable to
the employee up to the time of his or her death, if he or she had
lived, shall be paid to the dependents of such the injured employee if
there be such are any dependents at the time of death.
(m) The following permanent disabilities shall be conclusively
presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n)(1) Other than for those injuries specified in subdivision (m)
of this section, in order to be eligible to apply for an award of
permanent total disability benefits for all injuries incurred and all
diseases, including occupational pneumoconiosis, with a regardless of
the date of last exposure, on and after the second day of February, one
thousand nine hundred ninety-five, and for all requests for such an
award pending before the division on and after the second day of
February, one thousand nine hundred ninety-five, effective date of the
amendment and reenactment of this section during the year two thousand
three a claimant must have been awarded the sum of forty fifty percent
in prior permanent partial disability awards, have suffered an
occupational injury or disease which results in a finding that the
claimant has suffered a medical impairment of forty fifty percent or
has sustained a thirty-five percent statutory disability pursuant to
the provisions of subdivision (f) of this section. Upon filing such
an application, the claim will be reevaluated by the examining board
pursuant to subdivision (i) of this section to determine if he or she
the claimant has suffered a whole body medical impairment of forty
fifty percent or more resulting from either a single occupational injury or occupational disease or a combination of occupational
injuries and occupational diseases or has sustained a thirty-five
percent statutory disability pursuant to the provisions of subdivision
(f) of this section. A claimant whose prior permanent partial
disability awards total eighty-five percent or more shall also be
examined by the board and must be found to have suffered a whole body
medical impairment of forty fifty percent in order for his or her
request to be eligible for further review. The examining board shall
review the claim as provided for in subdivision (j) of this section.
If the claimant has not suffered whole body medical impairment of at
least forty fifty percent or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f) of
this section, then the request shall be denied. Upon a finding that
the claimant does have a forty has a fifty percent whole body medical
impairment or has sustained a thirty-five percent statutory disability
pursuant to the provisions of subdivision (f) of this section, then the
review of the application shall continue continues as provided for in
the following paragraph of this subdivision. Those claimants whose
prior permanent partial disability awards total eighty-five percent or
more and who have been found to have a whole body medical impairment
of at least forty fifty percent or have sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f) of
this section shall then be are entitled to the rebuttable presumption
created pursuant to subdivision (d) for the remaining issues in the
request. For the purposes of determining whether the claimant should
be awarded permanent total disability benefits under the second injury
provisions of subsection (d), section one, article three of this
chapter, only a combination of occupational injuries and occupational
diseases, including occupational pneumoconiosis, shall be considered.
(2) A For all awards made on or after the effective date of the
amendment and reenactment of this section during the year two thousand
three, disability which renders the injured employee unable to engage
in substantial gainful activity requiring skills or abilities which can
be acquired or which are comparable to those of any gainful activity
in which he or she has previously engaged with some regularity and over a substantial period of time shall be considered in determining the
issue of total disability. The comparability of preinjury income to
post-disability income will not be a factor in determining permanent
total disability. Geographic availability of gainful employment within
a driving distance of seventy-five miles from the residence of the
employee or within the distance from the residence of the employee to
his or her preinjury employment, whichever is greater, will be a factor
in determining permanent total disability. Permanent total disability
benefits shall cease at age seventy years: Provided, That where the
onset date of permanent total disability is established for a claimant
who is between the ages of sixty-five and seventy years of age, the
claimant's permanent total disability benefits may be paid for five
years from the onset date. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three, of
this chapter twenty-one-a of this code shall be considered once they
are effective.
(3) In the event that a claimant, who has been found to have at
least a forty fifty percent whole body medical impairment or has
sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section, is denied an award of
permanent total disability benefits pursuant to this subdivision and
then accepts and continues to work at a lesser paying job than he or
she previously held, then such a the claimant shall be is eligible,
notwithstanding the provisions of section nine of this article, to
receive temporary partial rehabilitation benefits for a period of four
years. Such The benefits shall be paid at the level necessary to
ensure the claimant's receipt of the following percentages of the
average weekly wage earnings of the claimant at the time of injury
calculated as provided in this section and sections six-d and fourteen
of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no
event shall such the benefits exceed one hundred percent of the average weekly wage in West Virginia. In no event shall such the benefits be
subject to the minimum benefit amounts required by the provisions of
subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection, subsection
(d) of this section, or any other provision of this code to the
contrary, on any claim filed on or after the effective date of the
amendment and reenactment of this section in the year two thousand
three:
(A) No percent of whole body medical impairment existing as the
result of carpal tunnel syndrome for which a claim has been made under
this chapter may be included in the aggregation of permanent disability
under the provisions of subsection (d) or (n) of this section; and
(B) No percent of whole body medical impairment existing as the
result of any occupational disease, the diagnosis of which is based
solely upon symptons rather than specific, objective and measurable
medical findings, and for which a claim has been made under this
chapter may be included in the aggregation of permanent disability
under the provisions of subsection (d) or (n) of this section. It is
the intent of the Legislature that the amendments to this section
enacted during the regular session of the Legislature in the year one
thousand nine hundred ninety-nine which change criteria for an award
of permanent total disability benefits be applied retroactively to all
injuries incurred and all occupational diseases, including occupational
pneumoconiosis, with a date of last exposure on and after the second
day of February, one thousand nine hundred ninety-five, and for all
requests for such an award pending before the division on and after the
second day of February, one thousand nine hundred ninety-five:
Provided, That any claimant whose application for permanent total
disability benefits was rejected on or after the second day of
February, one thousand nine hundred ninety-five, based on a finding
that the claimant: (1) Was not awarded the sum of fifty percent in
prior permanent partial disability awards; or (2) did not suffer an
occupational injury or occupational disease which resulted in a finding
that the claimant has suffered a medical impairment of fifty percent;
or (3) did not suffer whole body medical impairment of at least fifty percent, then such claimant may, during the period beginning on the
first day of July, one thousand nine hundred ninety-nine, and ending
on the thirtieth day of September, one thousand nine hundred ninety-
nine, file with the division a petition for reconsideration of the
denial of permanent total disability benefits. After review of the
petition by the division and the examining board, the division shall
enter an appropriate order on the claimant's petition for
reconsideration.
§23-4-6a. Benefits and mode of payment to employees and dependents for
occupational pneumoconiosis; further adjustment of claim for
occupational pneumoconiosis.
If an employee is found to be permanently disabled due to
occupational pneumoconiosis, as defined in section one of this article,
the percentage of permanent disability shall be is determined by the
degree of medical impairment that is found by the occupational
pneumoconiosis board. The division commission shall enter an order
setting forth the findings of the occupational pneumoconiosis board
with regard to whether the claimant has occupational pneumoconiosis and
the degree of medical impairment, if any, resulting therefrom. That
order shall be is the final decision of the division commission for
purposes of section one, article five of this chapter. If such a
decision is objected to, the office of judges shall affirm the decision
of the occupational pneumoconiosis board made following hearing unless
the decision is clearly wrong in view of the reliable, probative and
substantial evidence on the whole record. Compensation shall be is
paid therefor in the same manner and at the same rate as is provided
for permanent disability under the provisions of subdivisions (d), (e),
(g), (h), (i), (j), (k), (m) and (n), section six of this article:
Provided, That if it shall be determined by the division in accordance
with the facts in the case and with the advice and recommendation of
the occupational pneumoconiosis board that an employee has occupational
pneumoconiosis, but without measurable pulmonary impairment therefrom,
such employee shall be awarded and paid twenty weeks of benefits at the
same benefit rate as hereinabove provided. for any employee who applies
for occupational pneumoconiosis benefits whose award was granted on or after the effective date of the amendment and reenactment of this
section during the year two thousand three, there shall be no permanent
partial disability awarded based solely upon a diagnosis of
occupational pneumoconiosis, it being the intent of the Legislature to
eliminate any permanent partial disability awards for occupational
pneumoconiosis without a specific finding of measurable impairment.
If the employee dies from occupational pneumoconiosis, the
benefits shall be as provided for in section ten of this article; as
to such the benefits sections eleven to fourteen, inclusive, of this
article shall apply.
In cases of permanent disability or death due to occupational
pneumoconiosis, as defined in section one of this article, accompanied
by active tuberculosis of the lungs, compensation shall be payable as
for disability or death due to occupational pneumoconiosis alone.
The provisions of section sixteen, article four and sections two,
three, four and five, article five of this chapter providing for the
further adjustment of claims shall be are applicable to the claim of
any claimant who receives a permanent partial disability award for
occupational pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by either
a single incident of trauma or by exposure to hazardous noise in the
course of and resulting from employment, the degree of permanent
partial disability, if any, shall be determined in accordance with the
provisions of this section and awards made in accordance with the
provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and three
thousand hertz shall be determined for the injured ear and the total
shall be divided by four to ascertain the average decibel loss;
(2) The percent of monaural hearing impairment for the injured
ear shall be calculated by multiplying by one and six-tenths percent
the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred
percent hearing impairment, which maximum is reached at ninety
decibels; and
(3) The percent of monaural hearing impairment so obtained shall
then be multiplied by twenty-two and one-half to ascertain the degree
of permanent partial disability.
(c) The percent of permanent partial disability for a binaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and three
thousand hertz shall be is determined for each ear and the total for
each ear shall be divided by four to ascertain the average decibel loss
for each ear;
(2) The percent of hearing impairment for each ear shall be is
calculated by multiplying by one and six-tenths percent the difference
by which the aforementioned average decibel loss exceeds twenty-seven
and one-half decibels, up to a maximum of one hundred percent hearing
impairment, which maximum is reached at ninety decibels;
(3) The percent of binaural hearing impairment shall then be
calculated by multiplying the smaller percentage (better ear) by five,
adding this figure to the larger percentage (poorer ear) and dividing
the sum by six; and
(4) The percent of binaural hearing impairment so obtained shall
then be multiplied by fifty-five to ascertain the degree of permanent
partial disability.
(d) No permanent partial disability benefits shall be granted for
tinnitus, psychogenic hearing loss, recruitment or hearing loss above
three thousand hertz.
(e) An additional amount of permanent partial disability shall be
granted for impairment of speech discrimination, if any, to determine
the additional amount for binaural impairment, the percentage of speech
discrimination in each ear shall be added together and the result
divided by two to calculate the average percentage of speech
discrimination, and the permanent partial disability shall be
ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech
discrimination so obtained. To determine the additional amount for
monaural impairment, the permanent partial disability shall be
ascertained by reference to the percentage of permanent partial
disability in the table below on the line with the percentage of speech
discrimination in the injured ear.
TABLE
% of Permanent
% of Speech DiscriminationPartial
Disability
90% . . . and up to and including . . . . . 100% 0%
80% . . . and up to but not including . . . 90%1%
70% . . . and up to but not including . . . 80%3%
60% . . . and up to but not including . . . 70%4%
0% . . . and up to but not including . . . 60%5%
(f) No temporary total disability benefits shall be granted for
noise- induced hearing loss.
(g) An application for benefits alleging a noise induced hearing
loss shall set forth the name of the employer or employers and the time
worked for each. and the commissioner The commission shall allocate
to and divide any charges resulting from such the claim among such the
employers with whom the claimant sustained exposure to hazardous noise
for as much as sixty days during the period of three years immediately
preceding the date of last exposure. The allocation shall be is based
upon the time of exposure with each employer. In determining the
allocation, the commissioner commission shall consider all the time of
employment by each employer during which the claimant was so exposed
and not just the time within such the three-year period, under the same
allocation as is applied in occupational pneumoconiosis cases.
(h) The commissioner commission shall provide, consistent with
current practice, for prompt referral of such the claims for
evaluation, for all medical reimbursement and for prompt authorization
of hearing enhancement devices.
(i) The provisions of this section and the amendments to section
six of this article insofar as applicable to permanent partial disabilities for hearing loss shall be are operative as to any claim
filed after thirty days from the effective date of this section.
§23-4-6d. Benefits payable to part-time employees.
(a) For purposes of this section, a part-time employee means an
employee who, at the date of injury, is customarily employed twenty-
five hours per week or less on a regular basis and is classified by the
employer as a part-time employee: Provided, That the term "part-time
employee" shall not include an employee who regularly works more than
twenty-five hours per week for the employer, nor shall it include an
employee who regularly works for more than one employer and whose
regular combined working hours total more than twenty-five hours per
week when that employee is rendered unable to perform the duties of all
such his or her employment as a result of the injury, nor shall it
include any employee in the construction industry who works less than
twenty-five hours per week.
(b) For purposes of establishing temporary total disability
weekly benefits pursuant to subdivision (b), section six of this
article for part-time employees, the "average weekly wage earnings,
wherever earned, of the injured person at the date of injury" shall be
computed :
(1) Until the first day of July, one thousand nine hundred
ninety-four, based upon the average gross pay, wherever earned, which
is received by the employee during the two months, six months or twelve
months immediately preceding the date of the injury, whichever is most
favorable to the injured employee; or
(2) On and after the first day of July, one thousand nine hundred
ninety-four, based upon the best average weekly gross pay, wherever
earned, which is received by the employee during the best quarter of
wages out of the preceding four quarters of wages as reported to the
commissioner commission pursuant to section eleven, article ten,
chapter twenty-one-a of this code subsection (b), section two, article
two of this chapter: Provided, That for part-time employees who have
been employed less than two months but more than one week prior to the
date of injury or any employee whose wages have not yet been reported
to the commissioner commission, the average weekly wage earnings shall be calculated based upon the average gross earnings in the weeks
actually worked: Provided, however, That for part-time employees who
have been employed one week or less, the average weekly wage earnings
shall be calculated based upon the average weekly wage prevailing for
the same or similar part-time employment at the time of injury except
that when an employer has agreed to pay a certain hourly wage to such
a part-time employee, the average weekly wage shall be computed by
multiplying such the hourly wage by the regular numbers of hours
contracted to be worked each week: Provided further, That
notwithstanding any provision of this article to the contrary, no part-
time employee shall receive temporary total disability benefits greater
than his or her average weekly wage earnings as so calculated.
(c) Notwithstanding any other provisions of this article to the
contrary, benefits payable to a part-time injured employee for any
permanent disability shall be computed and paid on the same basis as
if the injured employee is not a part-time employee within the meaning
of this section.
§23-4-7. Release of medical information to employer; legislative
findings; effect of application for benefits; duty of employer.
(a) The Legislature hereby finds and declares that two of the
primary objectives of the workers' compensation system established by
this chapter are to provide benefits to an injured claimant promptly
and to effectuate his or her return to work at the earliest possible
time; that the prompt dissemination of medical information to the
division commission and employer as to diagnosis, treatment and
recovery is essential if these two objectives are to be achieved; that
claimants are increasingly burdened with the task of contacting their
treating physicians to request the furnishing of detailed medical
information to the division commission and their employers; that the
division commission is increasingly burdened with the administrative
responsibility of providing copies of medical reports to the employer
involved, whereas in other states the employer can obtain the necessary
medical information direct from the treating physician; that much
litigation is occasioned in this state because of a lack of medical
information having been received by the employer as to the continuing disability of a claimant; and that detailed narrative reports from the
treating physician are often necessary in order for the division
commission, the claimant's representatives and the employer to evaluate
a claim and determine whether additional or different treatment is
indicated.
(b) In view of the foregoing findings, a claimant irrevocably
agrees by the filing of his or her application for benefits that any
physician may release to and orally discuss with the claimant's
employer, or its representative, or with a representative of the
division commission, from time to time, the claimant's medical history
and any medical reports pertaining to the occupational injury or
disease and to any prior injury or disease of the portion of the
claimant's body to which a medical impairment is alleged containing
detailed information as to the claimant's condition, treatment,
prognosis and anticipated period of disability and dates as to when the
claimant will reach or has reached his or her maximum degree of
improvement or will be or was released to return to work. For the
exclusive purposes of this chapter, the patient-physician privilege of
confidentiality is waived with regard to the physician's providing this
medical information to the division commission, the employer or to the
employer's representative. Whenever a copy of any such medical report
is obtained by the employer or its representative and the physician has
not also forwarded a copy of the same medical report to the division
commission, the employer shall forward a copy of such the medical
report to the division commission within ten days from the date such
the employer received the same medical report from such the physician.
§23-4-7a. Monitoring of injury claims; legislative findings; review
of medical evidence; recommendation of authorized treating
physician; independent medical evaluations; temporary total
disability benefits and the termination thereof; mandatory
action; additional authority; suspension of benefits.
(a) The Legislature hereby finds and declares that injured
claimants should receive the type of treatment needed as promptly as
possible; that overpayments of temporary total disability benefits with
the resultant hardship created by the requirement of repayment should be minimized; and that to achieve these two objectives it is essential
that the division commission establish and operate a systematic program
for the monitoring of injury claims where the disability continues
longer than might ordinarily be expected.
(b) In view of the foregoing findings, the division commission,
in consultation with the health care advisory panel, shall establish
guidelines as to the anticipated period of disability for the various
types of injuries. Each injury claim in which temporary total
disability continues beyond the anticipated period of disability so
established for the injury involved shall be reviewed by the division
commission. If satisfied, after reviewing the medical evidence, that
the claimant would not benefit by an independent medical evaluation,
the division commission shall mark the claim file accordingly and shall
diary such the claim file as to the next date for required review which
shall not exceed sixty days. If the division commission concludes that
the claimant might benefit by an independent medical evaluation, the
division commission shall proceed as specified in subsections (d) and
(e) of this section.
(c) When the authorized treating physician concludes that the
claimant has either reached his or her maximum degree of improvement
or is ready for disability evaluation, or when the claimant has
returned to work, such the authorized treating physician may recommend
a permanent partial disability award for residual impairment relating
to and resulting from the compensable injury, and the following
provisions shall govern and control:
(1) If the authorized treating physician recommends a permanent
partial disability award of fifteen percent or less, the division
commission shall enter an award of permanent partial disability
benefits based upon such the recommendation and all other available
information., and the The claimant's entitlement to temporary total
disability benefits shall cease ceases upon the entry of such the award
unless previously terminated under the provisions of subsection (e) of
this section.
(2) If, however, the authorized treating physician recommends a
permanent partial disability award in excess of fifteen percent, or recommends a permanent total disability award, the claimant's
entitlement to temporary total disability benefits shall cease ceases
upon the receipt by the division commission of such the medical report.
and the division The commission shall refer the claimant to a physician
or physicians of the division's commission's selection for independent
evaluation prior to the entry of a permanent disability award:
Provided, That unless the claimant has returned to work, the claimant
shall thereupon receive benefits which shall then be at the permanent
partial disability rate as provided in subdivision (e), section six of
this article until the entry of a permanent disability award or until
the claimant returns to work., and which The amount of such benefits
paid prior to the receipt of such the independent evaluation report
shall be considered and deemed determined to be payment of the
permanent disability award then granted, if any. In the event that
benefits actually paid exceed the amount granted by the permanent
partial disability award, the claimant shall be is entitled to no
further benefits by such the award, but shall not be liable by offset
or otherwise for and the excess paid shall be an overpayment.
(d) When the division commission concludes that an independent
medical evaluation is indicated, or that a claimant may be ready for
disability evaluation in accordance with other provisions of this
chapter, the division commission shall refer the claimant to a
physician or physicians of the division's commission's selection for
examination and evaluation. If the physician or physicians so selected
recommend continued, additional or different treatment, the
recommendation shall be relayed to the claimant and the claimant's then
treating physician and the recommended treatment may be authorized by
the division commission.
(e) Notwithstanding any provision in subsection (c) of this
section, the division commission shall enter a notice suspending the
payment of temporary total disability benefits but providing a
reasonable period of time during which the claimant may submit evidence
justifying the continued payment of temporary total disability benefits
when:
(1) The physician or physicians selected by the division commission conclude that the claimant has reached his or her maximum
degree of improvement; or
(2) When the authorized treating physician shall advise advises
the division commission that the claimant has reached his or her
maximum degree of improvement or that he or she is ready for disability
evaluation and when the authorized treating physician has not made any
recommendation with respect to a permanent disability award as provided
in subsection (c) of this section; or
(3) When other evidence submitted to the division commission
justifies a finding that the claimant has reached his or her maximum
degree of improvement: Provided, That in all cases a finding by the
division that the claimant has reached his or her maximum degree of
improvement shall terminate the claimant's entitlement to temporary
total disability benefits regardless of whether the claimant has been
released to return to work: Provided, however, That under no
circumstances shall a claimant be entitled to receive temporary total
disability benefits either beyond the date the claimant is released to
return to work or beyond the date he or she actually returns to work;
or
(4) When other evidence submitted or otherwise obtained justifies
a finding that the claimant has engaged or is engaging in abuse,
including, but not limited to, physical activities inconsistent with
his or her compensable workers' compensation injury.
In all cases, a finding by the commission that the claimant has
reached his or her maximum degree of improvement terminates the
claimant's entitlement to temporary total disability benefits
regardless of whether the claimant has been released to return to work.
Under no circumstances shall a claimant be entitled to receive
temporary total disability benefits either beyond the date the claimant
is released to return to work or beyond the date he or she actually
returns to work.
In the event that the medical or other evidence indicates that
claimant has a permanent disability, unless he or she has returned to
work, the claimant shall thereupon receive benefits which shall then
be at the permanent partial disability rate as provided in subdivision (e), section six of this article until entry of a permanent disability
award, pursuant to an evaluation by a physician or physicians selected
by the division commission, or until the claimant returns to work. and
which The amount of benefits shall be considered and deemed determined
to be payment of the permanent disability award then granted, if any.
In the event that benefits actually paid exceed the amount granted
under the permanent disability award, the claimant shall be is entitled
to no further benefits by such the order but shall not be liable by
offset or otherwise for the excess paid.
(f) Notwithstanding the anticipated period of disability
established pursuant to the provisions of subsection (b) of this
section, whenever in any claim temporary total disability shall
continue continues longer than one hundred twenty days from the date
of injury (or from the date of the last preceding examination and
evaluation pursuant to the provisions of this subsection or pursuant
to the directions of the division commission under other provisions of
this chapter), the division commission shall refer the claimant to a
physician or physicians of the division commission's selection for
examination and evaluation in accordance with the provisions of
subsection (d) of this section and the provisions of subsection (e) of
this section shall be are fully applicable: Provided, That the
requirement of mandatory examinations and evaluations pursuant to the
provisions of this subsection shall not apply to any claimant who
sustained a brain stem or spinal cord injury with resultant paralysis
or an injury which resulted in an amputation necessitating a prosthetic
appliance.
(g) The provisions of this section are in addition to and in no
way in derogation of the power and authority vested in the division
commission by other provisions of this chapter or vested in the
employer to have a claimant examined by a physician or physicians of
the employer's selection and at the employer's expense, or vested in
the claimant or employer to file a protest, under other provisions of
this chapter.
(h) All evaluations and examinations performed by physicians
shall be performed in accordance with the protocols and procedures established by the health care advisory panel pursuant to section
three-b of this article: Provided, That the physician may exceed these
protocols when additional evaluation is medically necessary.
(i) The commission may suspend benefits being paid to a claimant
if the claimant refuses, without good cause, to undergo the
examinations or needed treatments provided for in this section until
the claimant submits to the examination or needed treatments. The
executive director shall propose rules for approval by the commission
to implement the provisions of this subsection.
§23-4-7b. Trial return to work.
(a) The Legislature hereby finds and declares that it is in the
interest of employees, employers and the commissioner commission that
injured employees be encouraged to return to work as quickly as
possible after an injury and that appropriate protections be afforded
to injured employees who return to work on a trial basis.
(b) Notwithstanding any other provisions of this chapter to the
contrary, the injured employee shall not have his or her eligibility
to receive temporary total disability benefits terminated when he or
she returns to work on a trial basis as set forth herein in this
section. An employee shall be is eligible to return to work on a trial
basis when he or she is released to work on a trial basis by the
treating physician.
(c) When an injured employee returns to work on a trial basis,
the employer shall provide a trial return to work notification to the
commissioner commission. Upon receipt thereof of the notification, the
commissioner commission shall note the date of the first day of work
pursuant to the trial return and shall continue the claimant's
eligibility for temporary total disability benefits, but shall
temporarily suspend the payment of temporary total disability benefits
during the period actually worked by the injured employee. The claim
shall be closed on a temporary total disability basis either when the
injured employee or the authorized treating physician notifies the
commissioner commission that the injured employee is able to perform
his or her job or automatically at the end of a period of three months
from the date of the first day of work unless the employee notifies the commissioner commission that he or she is unable to perform the duties
of the job, whichever occurs first. If the injured employee is unable
to continue working due to the compensable injury for a three-month
period, the injured employee shall notify the commissioner commission
and temporary total disability benefits shall be reinstated immediately
and he or she shall be referred for a rehabilitation evaluation as
provided in section nine of this article. No provision of this section
shall be construed to prohibit the commissioner commission from
referring the injured employee for any permanent disability evaluation
required or permitted by any other provision of this article.
(d) Nothing in this section shall prevent the employee from
returning to work without a trial return to work period.
(e) Nothing in this section shall be construed to require an
injured employee to return-to-work on a trial basis.
(f) The provisions of this section shall be terminated and be of
no further force and effect on the first day of July, one thousand nine
hundred ninety-eight two thousand seven.
§23-4-8. Physical examination of claimant.
The commissioner shall have authority commission may, after due
notice to the employer and claimant, whenever in the commissioner's
commission's opinion it shall be is necessary, to order a claimant of
compensation for a personal injury other than occupational
pneumoconiosis to appear for examination before a medical examiner or
examiners selected by the commissioner commission; and the claimant and
employer, respectively, shall each have the right to select a physician
of the claimant's or the employer's own choosing and at the claimant's
or the employer's own expense to participate in such the examination.
All such examinations shall be performed in accordance with the
protocols and procedures established by the health care advisory panel
pursuant to section three-b of this article: Provided, That the
physician may exceed these protocols when additional evaluation is
medically necessary. The claimant and employer shall, respectively,
be furnished with a copy of the report of examination made by the
medical examiner or examiners selected by the commissioner commission.
The respective physicians selected by the claimant and employer shall have the right to concur in any report made by the medical examiner or
examiners selected by the commissioner commission, or each may file
with the commissioner commission a separate report, which separate
report shall be considered by the commissioner commission in passing
upon the claim. If the compensation claimed is for occupational
pneumoconiosis, the commissioner shall have the power commission may,
after due notice to the employer, and whenever in the commissioner's
commission's opinion it shall be is necessary, to order a claimant to
appear for examination before the occupational pneumoconiosis board
hereinafter provided for in section eight-a of this article. In any
case the claimant shall be is entitled to reimbursement for loss of
wages, and to reasonable traveling and other expenses necessarily
incurred by him or her in obeying such the order.
Where the claimant is required to undergo a medical examination
or examinations by a physician or physicians selected by the employer,
as aforesaid or in connection with any claim which is in litigation,
the employer shall reimburse the claimant for loss of wages, and
reasonable traveling and other expenses in connection with such the
examination or examinations, not to exceed the expenses paid when a
claimant is examined by a physician or physicians selected by the
commissioner commission.
§23-4-8a. Occupational pneumoconiosis board; composition; term of
office; duties; quorum; remuneration.
The occupational pneumoconiosis board shall consist of five
licensed physicians who shall be appointed by the commissioner
executive director. No person shall be appointed as a member of the
board, or as a consultant thereto, who has not by special study or
experience, or both, acquired special knowledge of pulmonary diseases.
All members of the occupational pneumoconiosis board shall be
physicians of good professional standing admitted to practice medicine
and surgery in this state. , and two of them Two members shall be
roentgenologists. One member of the board shall be designated annually
as chairman by the commissioner executive director. The term of office
of each member of the board shall be six years. The five members of
the existing board in office on the effective date of this section shall continue to serve until their terms expire and until their
successors have been appointed and have qualified. Any member of the
board may be appointed to any number of terms. The function of the
board is to determine all medical questions relating to cases of
compensation for occupational pneumoconiosis under the direction and
supervision of the commissioner executive director. Any three members
of the board constitute a quorum for the transaction of its business
if at least one of the members present is a roentgenologist. The
commissioner executive director shall, from time to time, fix the
compensation to be paid each member of the board., and members Members
are also entitled to reasonable and necessary traveling and other
expenses incurred while actually engaged in the performance of their
duties. In fixing the compensation of board members, the commissioner
executive director shall take into consideration the number of
claimants a member of the board actually examines, the actual time
spent by members in discharging their duties and the recommendation of
the compensation programs performance council board of managers as to
reasonable reimbursement per unit of time expended based on comparative
data for physicians within the state in the same medical specialties.
§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.
The occupational pneumoconiosis board, upon reference to it by
the commissioner commission of a case of occupational pneumoconiosis,
shall notify the employee, or in case he or she is dead, the claimant,
and the employer to appear before such the board at a time and place
stated in the notice. If the employee be is living, he or she shall
appear before the board at the time and place specified and submit to
such the examination, including clinical and X-ray examinations, as
required by the board may require. If a physician licensed to practice
medicine in the state shall make makes an affidavit that the employee
is physically unable to appear at the time and place designated by the
board, such the board shall, on notice to the proper parties, change
the place and time as may reasonably facilitate the hearing or
examination of the employee or may appoint a qualified specialist in
the field of respiratory disease to examine the claimant on behalf of
the board. The employee, or in case he or she is dead, the claimant, and employer shall also produce as evidence to the board all reports
of medical and X-ray examinations which may be in their respective
possession or control, showing the past or present condition of the
employee. If the employee be is dead, the notice of the board shall
further require that the claimant produce necessary consents and
permits so that an autopsy may be performed, if the board shall so
direct directs. When in the opinion of the board an autopsy is deemed
considered necessary accurately and scientifically to ascertain and
determine the cause of death, such the autopsy examination shall be
ordered by the board, which shall designate a duly licensed physician,
a pathologist or such any other specialists as may be deemed determined
necessary by the board, to make such the examination and tests to
determine the cause of death and certify his or her or their written
findings, in triplicate, to the board, which. The findings shall be
public records. In the event that a claimant for compensation for such
the death refuses to consent and permit such the autopsy to be made,
all rights for compensation shall thereupon be are forfeited.
The employee, or if he or she be dead, the claimant, and the
employer, shall be entitled to be present at all examinations conducted
by the board and to be represented by attorneys and physicians.
§23-4-8c. Occupational pneumoconiosis board; reports and distribution
thereof; presumption; findings required of board; objection to
findings; procedure thereon; limitations on refilings;
consolidation of claims.
(a) The occupational pneumoconiosis board, as soon as
practicable, after it has completed its investigation, shall make its
written report, to the commissioner commission of its findings and
conclusions on every medical question in controversy and the
commissioner commission shall send one copy thereof of the report to
the employee or claimant and one copy to the employer., and the The
board shall also return to and file with the commissioner commission
all the evidence as well as all statements under oath, if any, of the
persons who appear appeared before it on behalf of the employee or
claimant, or employer, and also all medical reports and X-ray
examinations produced by or on behalf of the employee or claimant, or employer.
(b) If it can be shown that the claimant or deceased employee has
been exposed to the hazard of inhaling minute particles of dust in the
course of and resulting from his or her employment for a period of ten
years during the fifteen years immediately preceding the date of his
or her last exposure to such hazard and that such the claimant or
deceased employee has sustained a chronic respiratory disability, then
it shall be presumed that such the claimant is suffering or such the
deceased employee was suffering at the time of his or her death from
occupational pneumoconiosis which arose out of and in the course of his
or her employment. This presumption shall is not be conclusive.
(c) The findings and conclusions of the board shall set forth,
among other things, the following:
(1) Whether or not the claimant or the deceased employee has
contracted occupational pneumoconiosis and, if so, the percentage of
permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was sufficient
to have caused the claimant's or deceased employee's occupational
pneumoconiosis or to have perceptibly aggravated an existing
occupational pneumoconiosis or other occupational disease; and
(3) What, if any, physician appeared before the board on behalf
of the claimant or employer and what, if any, medical evidence was
produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of such the
findings and conclusions of the board, such the party shall file with
the commissioner commission or, on or after the first day of July, one
thousand nine hundred ninety-one, with the office of judges, within
thirty days from receipt of such the copy to such that party, unless
for good cause shown the commissioner commission or chief
administrative law judge extends such the time, such the party's
objections thereto to the findings and conclusions of the board in
writing, specifying the particular statements of the board's findings
and conclusions to which such party objects. The filing of an
objection within the time specified is hereby declared to be a
condition of the right to litigate such the findings and hence therefor jurisdictional. After the time has expired for the filing of
objections to the findings and conclusions of the board, the
commissioner commission or administrative law judge shall proceed to
act as provided in this chapter. If after the time has expired for the
filing of objections to the findings and conclusions of the board no
objections have been filed, the report of a majority of the board of
its findings and conclusions on any medical question shall be taken to
be plenary and conclusive evidence of the findings and conclusions
therein stated in the report. If objection has been filed to the
findings and conclusions of the board, notice thereof of the objection
shall be given to the board, and the members thereof of the board
joining in such the findings and conclusions shall appear at the time
fixed by the commissioner commission or office of judges for the
hearing to submit to examination and cross-examination in respect to
such the findings and conclusions. At such the hearing, evidence to
support or controvert the findings and conclusions of the board shall
be limited to examination and cross-examination of the members of the
board and to the taking of testimony of other qualified physicians and
roentgenologists.
(e) In the event that a claimant receives a final decision that
he or she has no evidence of occupational pneumoconiosis, then such the
claimant is barred for a period of three years from the date of the
occupational pneumoconiosis board's decision or until his or her
employment with the employer who employed the claimant at the time
designated as the claimant's last date of exposure in the denied claim
has terminated, whichever is sooner, from filing a new claim or
pursuing a previously filed, but unruled upon, claim for occupational
pneumoconiosis or requesting a modification of any prior ruling finding
him or her not to be suffering from occupational pneumoconiosis. For
the purposes of this subsection, a claimant's employment shall be
deemed considered to be terminated if, for any reason, he or she has
not worked for that employer for a period in excess of ninety days.
Any previously filed, but unruled upon, claim shall be consolidated
with the claim in which the board's decision is made and shall be
denied together with the decided claim. The provisions of this subsection shall not be applied in any claim where doing so would, in
and of itself, later cause a claimant's claim to be forever barred by
the provisions of section fifteen of this article.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist workers employees to return to
suitable gainful employment after an injury. In order to encourage
workers to return to employment and to encourage and assist employers
in providing suitable employment to injured employees, it shall be is
a priority of the commissioner commission to achieve early
identification of individuals likely to need rehabilitation services
and to assess the rehabilitation needs of these injured employees. It
shall be is the goal of rehabilitation to return injured workers
employees to employment which shall be is comparable in work and pay
to that which the individual performed prior to the injury. If a
return to comparable work is not possible, the goal of rehabilitation
shall be is to return the individual to alternative suitable
employment, using all possible alternatives of job modification,
restructuring, reassignment and training, so that the individual will
return to productivity with his or her employer or, if necessary, with
another employer. The Legislature further finds that it is the shared
responsibility of the employer, the employee, the physician and the
commissioner commission to cooperate in the development of a
rehabilitation process designed to promote reemployment for the injured
employee.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in temporary
disability in excess of one hundred twenty days, and such fact has been
as determined by the commissioner commission, the commissioner
commission shall at the earliest possible time determine whether the
employee would be assisted in returning to remunerative employment with
the provision of rehabilitation services and if the commissioner
commission determines that the employee can be physically and
vocationally rehabilitated and returned to remunerative employment by
the provision of rehabilitation services including, but not limited to, vocational or on-the-job training, counseling, assistance in obtaining
appropriate temporary or permanent work site, work duties or work hours
modification, by the provision of crutches, artificial limbs or other
approved mechanical appliances, or medicines, medical, surgical, dental
or hospital treatment or other services which the commission in its
sole discretion determines will directly assist the employee's return
to employment, the commissioner commission shall forthwith immediately
develop a rehabilitation plan for the employee and, after due notice
to the employer, expend such an amount as may be necessary for the
aforesaid that purposes: Provided, That such the expenditure for
vocational rehabilitation shall not exceed ten twenty thousand dollars
for any one injured employee: Provided, however, That no payment shall
be made for such vocational rehabilitation purposes as provided in this
section unless authorized by the commissioner commission prior to the
rendering of such the physical or vocational rehabilitation, except
that payments shall be made for reasonable medical expenses without
prior authorization if sufficient evidence exists which would relate
the treatment to the injury and the attending physician or physicians
have requested authorization prior to the rendering of such the
treatment: Provided further, That payment for physical rehabilitation,
including the purchase of prosthetic devices and other equipment and
training in use of such the devices and equipment, shall be are
considered expenses within the meaning of section three of this article
and shall be are subject to the provisions of sections three, three-a,
three-b and three-c of this article. The provision of any
rehabilitation services shall may be pursuant to a rehabilitation plan
to be developed and monitored by a rehabilitation professional for each
injured employee or by such other provider as determined by the
commission. Notwithstanding any other provision of this section to the
contrary, the commission may determine under rules promulgated by the
board of managers that a rehabilitation plan or any component thereof
is not appropriate for an injured employee.
(c) In every case in which the commissioner shall order
commission orders physical or vocational rehabilitation of a claimant
as provided herein in this section, the claimant shall, during the time he or she is receiving any vocational rehabilitation or rehabilitative
treatment that renders him or her totally disabled during the period
thereof of rehabilitation, be compensated on a temporary total
disability basis for such that period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's average
weekly wage earnings are less than the average weekly wage earnings
earned by the injured employee at the time of the injury, he or she
shall receive temporary partial rehabilitation benefits calculated as
follows: The temporary partial rehabilitation benefit shall be seventy
percent of the difference between the average weekly wage earnings
earned at the time of the injury and the average weekly wage earnings
earned at the new employment, both to be calculated as provided in
sections six, six-d and fourteen of this article as such the
calculation is performed for temporary total disability benefits,
subject to the following limitations: In no event shall such are the
benefits be subject to the minimum benefit amounts required by the
provisions of subdivision (b), section six of this article, nor shall
such may the benefits exceed the temporary total disability benefits
to which the injured employee would be entitled pursuant to sections
six, six-d and fourteen of this article during any period of temporary
total disability resulting from the injury in the claim: Provided,
That no temporary total disability benefits shall be paid for any
period for which temporary partial rehabilitation benefits are paid:
Provided, however, That the aggregate award of temporary total
rehabilitation or temporary partial rehabilitation benefits for a
single injury for which an award of temporary total rehabilitation or
temporary partial rehabilitation benefits is made on or after the
effective date of the amendment and reenactment of this section in the
year two thousand three shall be for a period not exceeding fifty-two
weeks. The amount of temporary partial rehabilitation benefits payable
under this subsection shall be reviewed every ninety days to determine
whether the injured employee's average weekly wage in the new
employment has changed and, if such the change has occurred, the amount
of benefits payable hereunder under this subsection shall be adjusted prospectively. Temporary partial rehabilitation benefits shall only
be payable when the injured employee is receiving vocational
rehabilitation services in accordance with a rehabilitation plan
developed under this section and no payment of temporary partial
rehabilitation benefits shall be made after the claimant has received
the vocational training provided under the rehabilitation plan.
(e) The commissioner executive director, in consultation with the
board of managers, shall promulgate propose for promulgation rules for
the purpose of developing a comprehensive rehabilitation program which
will assist injured workers to return to suitable gainful employment
after an injury in a manner consistent with the provisions and findings
of this section. Such The rules shall provide definitions for
rehabilitation facilities and rehabilitation services pursuant to this
section. Notwithstanding any other provision of this chapter to the
contrary, and in addition to the provisions of section three of this
article authorizing employers to participate in a managed health care
plan, including a managed health care plan that provide physical and
vocational rehabilitation services, an employer may contract directly
with one or more providers of vocational rehabilitation services to be
the employer's preferred provider of vocational rehabilitation services
for its employees who receive injuries compensable under the provisions
of this chapter, and the rules promulgated under this section may
require those employees to use the preferred providers.
(f) The reenactment of the provisions of this section during the
regular session of the Legislature in the year one thousand nine
hundred ninety-nine is for the purpose of reestablishing the
rehabilitation program heretofore created by virtue of the provisions
of this section and the rules promulgated pursuant thereto for all
injured employees who sustained injuries on or after the first day of
July, one thousand nine hundred ninety-eight. To this end, the
performance council is directed to reenact the rules promulgated under
the prior enactment of this section within fifteen days of the
effective date hereof and the commissioner shall promulgate any
revisions to the rules for review by the performance council on or
before the first day of July, one thousand nine hundred ninety-nine.
§23-4-9b. Preexisting impairments not considered in fixing amount of
compensation.
Where an employee has a definitely ascertainable impairment
resulting from an occupational or a nonoccupational injury, disease or
any other cause, whether or not disabling, and such the employee shall
thereafter receive receives an injury in the course of and resulting
from his or her employment, unless such the subsequent injury results
in total permanent disability within the meaning of section one,
article three of this chapter, such impairment the prior injury, and
the effect thereof of the prior injury, and an aggravation thereof,
shall not be taken into consideration in fixing the amount of
compensation allowed by reason of such the subsequent injury, and such
compensation. Compensation shall be awarded only in the amount that
would have been allowable had such the employee not had such the
preexisting impairment. Nothing in this section shall be construed to
require requires that the degree of such the preexisting impairment be
definitely ascertained or rated prior to the injury received in the
course of and resulting from such the employee's employment or that
benefits must have been granted or paid for such the preexisting
impairment. The degree of such the preexisting impairment may be
established at any time by competent medical or other evidence.
Notwithstanding the foregoing provisions of this section, if such the
definitely ascertainable preexisting impairment resulted from an injury
or disease previously held compensable and such the impairment had not
been rated, benefits for such the impairment shall be payable to the
claimant by or charged to the employer in whose employ the injury or
disease occurred. The employee shall also receive from the second
injury reserve created by section one, article three of this chapter
the difference, if any, in the benefit rate applicable in the more
recent claim and the prior claim.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational pneumoconiosis
or other occupational disease, suffered by an employee in the course
of and resulting from his or her employment, causes death, and
disability is continuous from the date of such the injury until the date of death, or if death results from occupational pneumoconiosis or
from any other occupational disease, the benefits shall be in the
amounts and to the persons as follows:
(a) If there be are no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of this
article;
(b) If there be are dependents as defined in subdivision (d) of
this section, such the dependents shall be paid for as long as their
dependency shall continue continues in the same amount as that was paid
or would have been paid the deceased employee for total disability had
he or she lived. The order of preference of payment and length of
dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage of
such the widow or widower, and any child or children dependent upon the
decedent until each such child shall reach reaches eighteen years of
age or where such the child after reaching eighteen years of age
continues as a full-time student in an accredited high school, college,
university, business or trade school, until such the child reaches the
age of twenty-five years, or if an invalid child, to continue as long
as such the child remains an invalid. All such persons shall be are
jointly entitled to the amount of benefits payable as a result of
employee's death;
(2) A wholly dependent father or mother until death; and
(3) Any other wholly dependent person for a period of six years
after the death of the deceased employee;
(c) If the deceased employee leaves no wholly dependent person,
but there are partially dependent persons at the time of death, the
payment shall be fifty dollars a month to continue for such the portion
of the period of six years after the death, as determined by the
division may determine commission, but no such partially dependent
person shall receive compensation payments as a result of the death of
more than one employee.
Compensation under subdivisions (b) and (c) hereof of this
subsection shall, except as may be specifically provided to the
contrary therein in those subsections, cease upon the death of the dependent, and the right thereto to the compensation shall not vest in
his or her estate.
(d) "Dependent", as used in this chapter, shall mean means a
widow, widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided herein in this
section, invalid child or posthumous child, who, at the time of the
injury causing death, is dependent, in whole or part, for his or her
support upon the earnings of the employee, stepchild under eighteen
years of age, or under twenty-five years of age when a full-time
student as provided herein in this section, child under eighteen years
of age legally adopted prior to the injury causing death, or under
twenty-five years of age when a full-time student as provided herein
in this section, father, mother, grandfather or grandmother, who, at
the time of the injury causing death, is dependent, in whole or in
part, for his or her support upon the earnings of the employee; and
invalid brother or sister wholly dependent for his or her support upon
the earnings of the employee at the time of the injury causing death;
and
(e) If a person receiving permanent total disability benefits
dies from a cause other than a disabling injury leaving any dependents
as defined in subdivision (d) of this section, an award shall be made
to such the dependents in an amount equal to one hundred four times the
weekly benefit the worker was receiving at the time of his or her death
and be paid either as a lump sum or in periodic payments, at the option
of the dependent or dependents. Direct premium rating experience
charges for the payment of such benefits granted as a result of a
second injury award of permanent total disability shall not be made to
the employee's employer. It is the intent of the Legislature that the
amendments to this subsection enacted during the regular session of the
Legislature in the year one thousand nine hundred ninety-nine be
construed so as to make dependents eligible for benefits under this
subsection retroactive to the second day of February, one thousand nine
hundred ninety-five.
§23-4-11. To whom death benefits paid.
The benefits, in case of death, shall be paid to such one or more dependents of the decedent, or to such any other persons, for the
benefit of all of the dependents, as may be determined by the
commissioner commission, who may apportion the benefits among the
dependents in such the manner as he may deem they consider just and
equitable. Payment to a dependent subsequent in right may be made if
the commissioner deems commission considers proper and shall operate
it operates to discharge all other claims therefor for the benefits.
§23-4-12. Application of benefits.
The dependent or person to whom benefits are paid shall apply the
same benefits to the use of the several beneficiaries thereof of the
benefits according to their respective claims upon the decedent for
support, in compliance with the finding and direction of the
commissioner commission.
§23-4-14. Computation of benefits.
(a) The average weekly wage earnings, wherever earned, of the
injured person at the date of injury, and the average weekly wage in
West Virginia as determined by the commissioner commission, in effect
at the date of injury, shall be taken as the basis upon which to
compute the benefits.
(1) In cases involving occupational pneumoconiosis or other
occupational diseases, the "date of injury" shall be is the date of the
last exposure to the hazards of occupational pneumoconiosis or other
occupational diseases.
(2) In computing benefits payable on account of occupational
pneumoconiosis, the commissioner commission shall deduct the amount of
all prior workers' compensation benefits paid to the same claimant on
account of silicosis, but a prior silicosis award shall not, in any
event, preclude an award for occupational pneumoconiosis otherwise
payable under this article.
(b) (1) Until the first day of July, one thousand nine hundred
ninety-four, the expression "average weekly wage earnings, wherever
earned, of the injured person, at the date of injury", within the
meaning of this chapter, shall be computed based upon the daily rate
of pay at the time of the injury or upon the average pay received
during the two months, six months or twelve months immediately preceding the date of the injury, whichever is most favorable to the
injured employee, except for the purpose of computing temporary total
disability benefits for part-time employees pursuant to the provisions
of section six-d of this article.
(2) On and after the first day of July, one thousand nine hundred
ninety-four, the expression "average weekly wage earnings, wherever
earned, of the injured person, at the date of injury", within the
meaning of this chapter, shall be computed based upon the daily rate
of pay at the time of the injury or upon the weekly average derived
from the best quarter of wages out of the preceding four quarters of
wages as reported to the commissioner commission pursuant to section
eleven, article ten, chapter twenty-one-a of this code subsection (b),
section two, article two of this chapter, whichever is most favorable
to the injured employee, except for the purpose of computing temporary
total disability benefits for part-time employees pursuant to the
provisions of section six-d of this article.
(c) The expression "average weekly wage in West Virginia", within
the meaning of this chapter, shall be is the average weekly wage in
West Virginia as determined by the commissioner of the bureau of
employment programs in accordance with the provisions of sections ten
and eleven, article six, chapter twenty-one-a of this code and other
applicable provisions of said chapter.
(d) In any claim for injuries, including occupational
pneumoconiosis and other occupational diseases, occurring on or after
the first day of July, one thousand nine hundred seventy-one, any award
for temporary total, permanent partial or permanent total disability
benefits or for dependent benefits shall be paid at the weekly rates
or in the monthly amount in the case of dependent benefits applicable
to the claimant therein in effect on the date of such the injury. If
during the life of such the award for temporary total, permanent
partial or permanent total disability benefits or for dependent
benefits the weekly rates or the monthly amount in the case of
dependent benefits, are increased or decreased, the claimant shall
receive such the increased or decreased benefits beginning as of the
effective date of said the increase or decrease.
§23-4-15. Application for benefits.
(a) To entitle any employee or dependent of a deceased employee
to compensation under this chapter, other than for occupational
pneumoconiosis or other occupational disease, the application therefor
must for compensation shall be made on the form or forms prescribed by
the division commission and filed with the division commission within
six months from and after the injury or death, as the case may be, and
unless so filed within such the six months period, the right to
compensation under this chapter shall be is forever barred, such time
limitation being hereby declared to be a condition of the right and
hence jurisdictional, and all proofs of dependency in fatal cases must
likewise also be filed with the division commission within six months
from and after the death. In case the employee is mentally or
physically incapable of filing such the application, it may be filed
by his or her attorney or by a member of his or her family.
(b) To entitle any employee to compensation for occupational
pneumoconiosis under the provisions hereof of this subsection, the
application therefor must for compensation shall be made on the form
or forms prescribed by the division commission and filed with the
division commission within three years from and after the last day of
the last continuous period of sixty days or more during which the
employee was exposed to the hazards of occupational pneumoconiosis or
within three years from and after the employee's a diagnosed impairment
due to occupational pneumoconiosis was made known to him or her the
employee by a physician or which he or she should reasonably have
known, whichever shall last occur, and unless so filed within such the
three-year period, the right to compensation under this chapter shall
be is forever barred, such time limitation being hereby declared to be
a condition of the right and hence jurisdictional, or, in the case of
death, the application shall be filed as aforesaid by the dependent of
such the employee within one year from and after such the employee's
death, and such time limitation is a condition of the right and hence
jurisdictional.
(c) To entitle any employee to compensation for occupational
disease other than occupational pneumoconiosis under the provisions hereof of this section, the application therefor must for compensation
shall be made on the form or forms prescribed by the division
commission and filed with the division commission within three years
from and after the day on which the employee was last exposed to the
particular occupational hazard involved or within three years from and
after the employee's occupational disease was made known to him or her
by a physician or which he or she should reasonably have known,
whichever shall last occur occurs, and unless so filed within such the
three-year period, the right to compensation under this chapter shall
be forever barred, such time limitation being hereby declared to be a
condition of the right and hence therefor jurisdictional, or, in case
of death, the application shall be filed as aforesaid by the dependent
of such the employee within one year from and after such the employee's
death, and such time limitation is a condition of the right and hence
jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
Notwithstanding any other provisions of this chapter, nonresident
alien beneficiaries shall be are entitled to the same benefits as
citizens of the United States: Provided, however, That the
commissioner commission in his its discretion may make, and such the
beneficiary shall be required to accept, commutation of such the
benefits into a lump sum settlement and payment. Nonresident alien
beneficiaries within the meaning hereof shall mean of this section
means persons not citizens of the United States residing outside of the
territorial limits of the United States at the time of the injury with
respect to which benefits are awarded.
§23-4-15b. Determination of nonmedical questions by commission; claims
for occupational pneumoconiosis; hearing.
If a claim for occupational pneumoconiosis benefits be is filed
by an employee within three years from and after the last day of the
last continuous period of sixty days' exposure to the hazards of
occupational pneumoconiosis, the division commission shall determine
whether the claimant was exposed to the hazards of occupational
pneumoconiosis for a continuous period of not less than sixty days
while in the employ of the employer within three years prior to the filing of his or her claim, whether in the state of West Virginia the
claimant was exposed to such hazard over a continuous period of not
less than two years during the ten years immediately preceding the date
of his or her last exposure thereto to the hazard and whether the
claimant was exposed to such the hazard over a period of not less than
ten years during the fifteen years immediately preceding the date of
his or her last exposure thereto to the hazard. If a claim for
occupational pneumoconiosis benefits be is filed by an employee within
three years from and after the employee's occupational pneumoconiosis
was made known to the employee by a physician or otherwise should have
reasonably been known to the employee, the division commission shall
determine whether the claimant filed his or her application within said
that period and whether in the state of West Virginia the claimant was
exposed to such the hazard over a continuous period of not less than
two years during the ten years immediately preceding the date of last
exposure thereto to the hazard and whether the claimant was exposed to
such the hazard over a period of not less than ten years during the
fifteen years immediately preceding the date of last exposure thereto
to the hazard. If a claim for occupational pneumoconiosis benefits be
is filed by a dependent of a deceased employee, the division commission
shall determine whether the deceased employee was exposed to the
hazards of occupational pneumoconiosis for a continuous period of not
less than sixty days while in the employ of the employer within ten
years prior to the filing of the claim, whether in the state of West
Virginia the deceased employee was exposed to such the hazard over a
continuous period of not less than two years during the ten years
immediately preceding the date of his or her last exposure thereto to
the hazard and whether the claimant was exposed to such the hazard over
a period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure thereto to
the hazard. The division commission shall also determine such other
nonmedical facts as may that, in the division's commission's opinion,
be are pertinent to a decision on the validity of the claim.
The division commission shall enter an order with respect to such
nonmedical findings within ninety days following receipt by the division commission of both the claimant's application for occupational
pneumoconiosis benefits and the physician's report filed in connection
therewith with the claimants application and shall give each interested
party notice in writing of these findings with respect to all such the
nonmedical facts. and such The findings and such actions of the
division commission shall be are final unless the employer, employee,
claimant or dependent shall, within thirty days after receipt of such
the notice, object to such objects to the findings, and unless an
objection is filed within such the thirty-day period, such the findings
shall be are forever final, such the time limitation being hereby
declared to be is a condition of the right to litigate such the
findings and hence therefor jurisdictional. Upon receipt of such an
objection, the chief administrative law judge shall set a hearing as
provided in section nine, article five of this chapter. In the event
of an objection to such the findings by the employer, the claim shall,
notwithstanding the fact that one or more hearings may be held with
respect to such the objection, mature for reference to the occupational
pneumoconiosis board with like effect as if the objection had not been
filed. If the administrative law judge concludes after the protest
hearings that the claim should be dismissed, a final order of dismissal
shall be entered. , which The final order shall be is subject to appeal
in accordance with the provisions of sections ten and twelve, article
five of this chapter. If the administrative law judge concludes after
such the protest hearings that the claim should be referred to the
occupational pneumoconiosis board for its review, the order entered
shall be interlocutory only and may be appealed only in conjunction
with an appeal from a final order with respect to the findings of the
occupational pneumoconiosis board.
§23-4-16. Commission's jurisdiction over case continuous; modification
of finding or order; time limitation on awards; reimbursement of
claimant for expenses; reopening cases involving permanent total
disability; promulgation of rules.
(a) The power and jurisdiction of the division commission over
each case shall be is continuing and the division commission may, in
accordance with the following provisions of this section and after due notice to the employer, make such modifications or changes with respect
to former findings or orders as may be that are justified. Upon and
after the second day of February, one thousand nine hundred ninety-
five, the period in which a claimant may request a modification, change
or reopening of a prior award that was entered either prior to or after
such that date shall be determined by the following paragraphs
subdivisions of this subsection. Any such request that is made beyond
such that period shall be refused.
(1) Except as provided in section twenty-two of this article, in
any claim which was closed without the entry of an order regarding the
degree, if any, of permanent disability that a claimant has suffered,
or in any case in which no award has been made, any such request must
be made within five years of the closure. During that time period, only
two such requests may be filed.
(2) Except as stated below, in any claim in which an award of
permanent disability was made, any such request must be made within
five years of the date of the initial award. During that time period,
only two such requests may be filed. With regard to those occupational
diseases, including occupational pneumoconiosis, which are medically
recognized as progressive in nature, if any such request is granted by
the division commission, then a new five-year period shall begin begins
upon the date of the subsequent award. With the advice of the health
care advisory panel, the commissioner and the compensation programs
performance council executive director and the board of managers shall
by rule designate those progressive diseases which are customarily the
subject of claims.
(3) No further award may be made in fatal cases except within two
years after the death of the employee.
(4) With the exception of the items set forth in subsection (d),
section three of this article, in any claim wherein in which medical
or any type of rehabilitation service has not been rendered or durable
medical goods or other supplies have not been received for a period of
five years, then no request for additional medical or any type of
rehabilitation benefits shall be granted nor shall any such medical or
any type of rehabilitation benefits or any type of goods or supplies be paid for by the division commission if such they were provided
without a prior request. For the exclusive purposes of this paragraph
subdivision, medical services and rehabilitation services shall not
include any encounter in which significant treatment was not performed.
(b) In any claim in which an injured employee shall make makes
application for a further period of temporary total disability, if such
the application be is in writing and filed within the applicable time
limit stated above, then the division commission shall pass upon the
request within thirty days of the receipt of the request. If the
decision is to grant the request, then the order shall provide for the
receipt of temporary total disability benefits. In any case in which
an injured employee shall make makes application for a further award
of permanent partial disability benefits or for an award of permanent
total disability benefits, if such the application be is in writing and
filed within the applicable time limit as stated above, the division
commission shall pass upon the request within thirty days of its
receipt and, if the division commission determines that the claimant
may be entitled to an award, the division will then commission shall
refer the claimant for such further examinations as may be that are
necessary.
(c) If such the application is based on a report of any medical
examination made of the claimant and submitted by the claimant to the
division commission in support of his or her application, and the claim
is opened for further consideration and additional award is later made,
the claimant shall be reimbursed for the expenses of such the
examination. Such The reimbursement shall be made by the division
commission to the claimant, in addition to all other benefits awarded,
upon due proof of the amount thereof being furnished the division
commission by the claimant, but shall in no case exceed the sum fixed
pursuant to the division's commission's schedule of maximum reasonable
fees established under the provisions of section three of this article.
(d) The division shall have commission has continuing power and
jurisdiction over claims in which permanent total disability awards
have been made after the eighth day of April, one thousand nine hundred
ninety-three.
(1) The division commission shall continuously monitor permanent
total disability awards and may, from time to time, after due notice
to the claimant, reopen a claim for reevaluation of the continuing
nature of the disability and possible modification of the award:
Provided, That such reopenings shall not be done sooner than every two
years: Provided, however, That any individual claimant shall only be
reevaluated a total of two times after which he or she may not be again
reevaluated under the provisions of this subsection. At such times as
the commission may determine, the commission may require the claimant
to provide documents and other information to the commission,
including, but not limited to, tax returns, financial records, and
affidavits demonstrating level of income, recreational activities, work
activities, medications used, and physicians or other medical or
rehabilitation providers treating or prescribing medication or other
services for the claimant; require the claimant to appear under oath
before the commission or its duly authorized representative and answer
questions; and suspend or terminate any benefits of a claimant who
wilfully fails to provide the information or appear as required:
Provided, That the commission shall develop, implement and complete a
program as soon as reasonably possible that requires each person
receiving permanent total disability benefits on the effective date of
the amendment and reenactment of this section in the year two thousand
three, and each person who is awarded those benefits thereafter, to
submit the tax returns and the affidavit described herein at least
once: Provided, however, That this requirement does not restrict the
commission's authority to require the information that may be required
herein at such other times as the commission may determine. The
division commission may reopen a claim for reevaluation when, in the
division's commission's sole discretion, it concludes that there exists
good cause to believe that the claimant no longer meets the eligibility
requirements under subdivision (n), section six of this article. The
eligibility requirements, including any vocational standards, shall be
applied as those requirements are stated at the time of a claim's
reopening: Provided further, That if a permanent total disability
award was made on or after the eighth day of April, one thousand nine hundred ninety-three, and on or before the second day of February, one
thousand nine hundred ninety-five, the eligibility requirements for the
claimant upon a reopening shall be the eligibility requirements which
applied to his or her claim at the time the award was made. This
section shall not be is not applicable to any claim in which the final
decision on the eligibility of the claimant to a permanent total
disability award was made more than ten years prior to the date of
proposed reevaluation.
(2) Upon reopening a claim under this subsection, the division
commission may take evidence, have the claimant evaluated, make
findings of fact and conclusions of law and shall vacate, modify or
affirm the original permanent total disability award as the record
requires. The claimant's former employer shall not be a party to the
reevaluation, but shall be notified of the reevaluation and may submit
such any information to the division commission as the employer may
elect. In the event the claimant retains his or her award following
the reevaluation, then the claimant's reasonable attorneys' fees
incurred in defending the award shall be paid by the workers'
compensation division commission from the supersedeas reserve of the
surplus workers' compensation fund. In addition, the workers'
compensation division commission shall reimburse a prevailing claimant
for his or her costs in obtaining one evaluation on each issue during
the course of the reevaluation with such the reimbursement being made
from the supersedeas reserve of the surplus fund. The compensation
programs performance council board of managers shall adopt criteria for
the determination of reasonable attorneys' fees.
(3) This subsection shall not be applied to awards made under the
provisions of subdivision (m), section six of this article. The
claimant may seek review of the division's commission's final order as
otherwise provided for in article five of this chapter for review of
orders granting or denying permanent disability awards.
(4) The commission shall establish by rule criteria for review,
reopening and reevaluating a claim under this subsection. The
commission shall at least quarterly provide a report of the exercise
of its authority to continuously monitor permanent total disability awards under this section to the joint committee on government and
finance and the joint commission on economic development.
(e) A claimant may have only one active request for a permanent
disability award pending in a claim at any one time. Any new such
request that is made while another is pending shall be consolidated
into the former request.
§23-4-16a. Interest on benefits.
Whenever any award of temporary total, permanent partial or
permanent total disability benefits or dependent benefits is made on
or after July one the first day of July, one thousand nine hundred
seventy-one, and a protest is filed thereto to the award or an appeal
is taken therefrom from the award by an employer only and not by the
claimant or dependent and the award is not ultimately denied or reduced
following such the protest or appeal, the commissioner commission shall
add thereto interest to the award at the simple rate of six percent per
annum from the date the award would have been payable had such the
protest or appeal not been filed or taken, exclusive of any period for
which a continuance was granted upon motion of any party other than the
protesting or appealing employer. Any interest payable shall be
charged to the account of the protesting or appealing employer to the
extent that the benefits upon which such interest is computed are
charged to the account of such the employer.
§23-4-17. Commutation of periodical benefits.
The commissioner commission, under special circumstances and when
the same it is deemed considered advisable, may commute periodical
benefits to one or more lump-sum payments. Upon the application of any
claimant who has received an award of partial or total disability, who
is not a citizen of the United States and desires to reside permanently
beyond the territorial limits of the United States, or upon the
application of an alien dependent of a deceased employee with respect
of whose death award of compensation has been made, such the dependent
residing in the territorial limits of the United States at the time of
the decedent's death, and desiring to reside permanently beyond such
the territorial limits of the United States, the commissioner
commission may commute into one lump-sum payment the periodical payments to which such the claimant or dependent would be entitled, but
at the rate of one-half the amount that would be payable to a citizen
of the United States under like circumstances., and such The lump-sum
payment at the rate aforesaid shall discharge specified in this section
discharges all liability with respect of said to the award, but in no
event shall such the award be paid until such the claimant or dependent
shall have has actually arrived and domiciled himself or herself
outside the territorial limits of the United States, except a
sufficient portion of said the award to pay transportation and other
necessary expenses.
§23-4-18. Mode of paying benefits generally; exemptions of
compensation from legal process.
Except as provided by this section, compensation shall be paid
only to such the employees or their dependents and shall be is exempt
from all claims of creditors and from any attachment, execution or
assignment other than compensation to counsel for legal services, under
the provisions of, and subject to the limitations contained in section
sixteen, article five of this chapter, and other than for the
enforcement of orders for child or spousal support entered pursuant to
the provisions of chapter forty-eight of this code. Payments may be
made in such the periodic installments as determined by the division
commission in each case, but in no event less frequently than
semimonthly for any temporary award and monthly for any permanent
award. Payments for permanent disability shall be paid on or before
the third day of the month in which they are due. In all cases where
compensation is awarded or increased, the amount thereof of
compensation shall be calculated and paid from the date of disability.
§23-4-20. Postmortem examinations.
The commissioner shall have authority commission may, after due
notice to the employer and claimant, whenever he shall deem it
considers it necessary, to order an autopsy and may designate a duly
licensed physician to make such the postmortem examination or
examinations as may be that are necessary to determine the cause of the
deceased employee's death., and such The physician shall file with the
commissioner commission a written report of his or her findings.; the The claimant and the employer, respectively, shall have the right to
select a physician of his, her or its own choosing and, at his, her or
its own expense, to participate in the postmortem examination., and the
The respective physicians selected by the claimant and the employer
shall have the right to concur in any report made by the physician
selected by the commissioner commission, or each may file with the
commissioner commission a separate report. In any case, including
silicosis cases, in which either the employer or a claimant requests
that an autopsy be performed, then such the autopsy shall be directed
as hereinbefore provided in this section., and in In the event that a
claimant for compensation for such the death refuses to consent and
permit such the autopsy to be made all rights to compensation shall be
forfeited.
§23-4-22. Permanent disability evaluations; limitations; notice.
Notwithstanding any provision in this chapter to the contrary,
any claim which was closed for the receipt of temporary total
disability benefits or which was closed on a no-lost-time basis and
which closure was more than five years prior to the effective date of
this section shall not be considered to still be open or the subject
for an evaluation of the claimant for permanent disability merely
because such an evaluation has not heretofore previously been conducted
and a decision on permanent disability has not been made: Provided,
That if a request for an evaluation was made in such a claim prior to
the twenty-ninth day of March, one thousand nine hundred ninety-three,
the commissioner commission shall have such the evaluation performed.
In every such instance, such a claim shall be a case in which no award
has been made for the purposes of section sixteen of this article. In
every claim closed after the effective date of this section, the
commissioner commission shall give notice to the parties of the
claimant's right to a permanent disability evaluation.
§23-4-23. Permanent total disability benefits; reduction of disability
benefits; reduction of benefits; application of section;
severability.
(a) This section is applicable whenever benefits are being paid
for permanent total disability benefits arising under subdivision (d), (m) or (n), section six of this article or under section eight-c of
this article. This section is not applicable to the receipt of
temporary total disability benefits, the receipt of permanent partial
disability benefits, the receipt of benefits by partially or wholly
dependent persons or to the receipt of benefits pursuant to the
provisions of subsection (e), section ten of this article. This
section is not applicable to the receipt of medical benefits or the
payment therefor for medical benefits.
(b) Whenever applicable benefits are paid to a beneficiary with
respect to the same time period for which old-age insurance benefit
payments under the Social Security Act, 42 U. S. C. 401 and 402, or
payments under a self-insurance plan, a wage continuation plan or a
disability insurance policy provided by an employer are also received
or being received by the beneficiary, then such the applicable benefits
shall be reduced by these amounts:
(1) Fifty percent of the amount of full old-age insurance
benefits received or being received under the Social Security Act:
Provided, That if the claimant is receiving reduced old-age retirement
benefits, then ten percent of the amount of old-age social security
insurance benefits, had such benefits not been reduced, shall be
deducted from the applicable benefits: Provided, however, That social
security disability benefits shall not be deducted from the applicable
benefits when such disability benefits are later changed to old-age
insurance benefits upon the claimant's attaining the age specified for
such conversion by the social security administration;
(2) (1) The after-tax amount of the payments received or being
received under a self-insurance plan, a wage continuation plan or under
a disability insurance policy provided by an employer if the employee
did not contribute directly to the plan or to the payment of premiums
regarding the disability insurance policy; or
(3) (2) The proportional amount, based on the ratio of the
employer's contributions to the total insurance premiums for the policy
period involved, of the after-tax amount of the payments received or
being received by the employee pursuant to a disability insurance
policy provided by an employer if the employee did contribute directly to the payment of premiums regarding the disability insurance policy:
Provided, That in no event shall applicable benefits be reduced below
the minimum weekly benefits as provided for in subdivisions (b) and
(d), section six of this article.
(c) The commissioner shall notify a claimant or self-insured
employer of possible eligibility for social security benefits and the
requirements for establishing proof of application for those benefits.
Notification shall be promptly mailed by the commissioner or self-
insured employer to the claimant after the date on which by reason of
age the claimant may be entitled to social security benefits. A self-
insured employer shall file a copy of any such notice of possible
eligibility with the commissioner within ten days of its mailing to the
claimant.
(1) Within thirty days after the receipt of the notification of
possible eligibility, the claimant shall:
(A) Make application for social security benefits;
(B) Provide the commissioner or a self-insured employer with
proof of that application; and
(C) Provide the commissioner or self-insured employer with an
authorization for release of information which shall be utilized by the
commissioner or self-insured employer to obtain necessary benefit
entitlement and amount information from the social security
administration. The authorization for release of information shall be
effective for one year.
(2) Failure of the claimant to provide the proof of application
or authorization for release of information shall allow the
commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefits until
the proof of application and the authorization for release of
information is provided. Compensation benefits withheld shall be
reimbursed to the claimant upon the providing of the required proof of
application or the authorization for release of information, or both.
(d) If the commissioner or the self-insured employer is required
to submit a new authorization for release of information to the social
security administration in order to receive information necessary to comply with this section, the claimant shall provide the new
authorization for release of information within thirty days of a
request by the commissioner or self-insured employer. Failure of the
claimant to provide the new authorization for release of information
shall allow the commissioner or self-insured employer with the approval
of the commissioner to discontinue the payment of applicable benefits
until the authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the claimant upon
the providing of the authorization for release of information.
(e) Within thirty days after either the date of first payment of
benefits or after the date of application for any benefit under
subsection (b) of this section, whichever is later, the claimant shall
provide the commissioner or self-insured employer with a properly
executed authorization for release of information which shall be
utilized by the commissioner or self-insured employer to obtain
necessary benefit entitlement and amount information from the
appropriate source. The authorization for release of information shall
be effective for one year. Failure of the claimant to provide a
properly executed authorization for release of information shall allow
the commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefits until
the authorization for release of information is provided. Compensation
benefits withheld shall be reimbursed to the claimant upon the
providing of the authorization for release of information. If the
commissioner or the self-insured employer is required to submit a new
authorization for release of information to the appropriate source in
order to receive information necessary to comply with this section, the
claimant shall provide the new authorization for release of information
within thirty days of a request by the commissioner or self-insured
employer. Failure of the claimant to provide the new authorization for
release of information shall allow the commissioner or self-insured
employer with the approval of the commissioner to discontinue the
payment of applicable benefits until the authorization for release of
information is provided. Compensation benefits withheld shall be
reimbursed to the claimant upon the providing of the authorization for release of information.
(f) Any benefit payments under the Social Security Act, or any
fund, policy or program as specified under subsection (b) of this
section which the claimant receives after the effective date of this
section and during a period in which the claimant also receives
unreduced workers' compensation benefits shall be considered to create
an overpayment of benefits for that period. The commissioner or self-
insured employer shall calculate the amount of the overpayment and send
a notice of overpayment and a request for reimbursement to the
claimant. Failure by the claimant to reimburse the commissioner or
self-insured employer within thirty days after the mailing date of the
notice of request for reimbursement shall allow the commissioner or the
self-insured employer, with the approval of the commissioner, to
discontinue fifty percent of future benefits payments. The benefit
payments withheld shall be credited against the amount of the
overpayment. Payment of the appropriate benefit shall resume when the
total amount of the overpayment has been withheld. Any self-insured
employer taking a credit or making a reduction as provided for in this
subsection shall immediately report to the commissioner the amount of
the credit or reduction and, as requested by the commissioner, furnish
to the commissioner satisfactory proof of the basis for a credit or
reduction.
(g) Nothing in this section shall be considered to compel a
claimant to apply for early federal social security old-age benefits
or to apply for other early or reduced benefits.
(h) (c) This section applies to awards of permanent total
disability made after the effective date of this section.
(i) (d) The commissioner and the compensation programs
performance council board of managers shall promulgate the appropriate
rules for the interpretation, processing and enforcement of this
section.
(j) (e) If any portion of this section or any application of this
section is subsequently found to be unconstitutional or in violation
of applicable law, it shall not affect the validity of the remainder
of this section or such the applications of the section as that are not unconstitutional or in such violation.
§23-4-24. Permanent total disability awards; retirement age;
limitations on eligibility and the introduction of evidence;
effects of other types of awards; procedures; requests for
awards; jurisdiction.
(a) Notwithstanding any provision of this chapter to the
contrary, except as stated below, no claimant shall be awarded
permanent total disability benefits arising under subdivision (d) or
(n), section six of this article or of section eight-c of this article
who terminates active employment and is receiving full old-age
retirement benefits under the Social Security Act, 42 U. S. C. 401 and
402. Any such claimant shall be evaluated only for the purposes of
receiving a permanent partial disability award premised solely upon the
claimant's impairments. This subsection shall is not be applicable in
any claim in which the claimant has completed the submission of his or
her evidence on the issue of permanent total disability prior to the
later of the following: Termination of active employment or the
initial receipt of full old-age retirement benefits under the Social
Security Act. Once the claimant has terminated active employment and
has begun to receive full old-age social security retirement benefits,
the claimant shall not be permitted to may not produce additional
evidence of permanent total disability before the division commission
or the office of judges nor shall such a the claim be remanded for the
production of such the evidence.
(b) For the purposes of subdivisions (d) and (n), section six of
this article, the award of permanent partial disability benefits under
the provisions of section six-b of this article or under that portion
of section six-a of this article which awards twenty weeks of benefits
to a claimant who has occupational pneumoconiosis but without
measurable pulmonary impairment therefrom shall not be counted towards
the eighty-five percent needed to gain the rebuttable presumption of
permanent total disability or towards the fifty percent threshold of
paragraph (1), subdivision (n), section six of this article when such
claimant has terminated active employment and is receiving federal
nondisability pension or retirement benefits, including old-age benefits under the Social Security Act. This subsection shall not
affect any other awards of permanent partial disability benefits and
their use in achieving the rebuttable eighty-five percent presumption
or the fifty percent threshold.
(c) (b) The workers' compensation division shall have commission
has the sole and exclusive jurisdiction to initially hear and decide
any claim or request pertaining, in whole or in part, to subdivision
(d) or (n), section six of this article. Any claim or request for
permanent total disability benefits arising under said the subdivisions
shall first be presented to the division commission as part of the
initial claim filing or by way of an application for modification or
adjustment pursuant to section sixteen of this article. The office of
judges may consider such a claim only after the division commission has
entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of disability
benefits for wages earned by claimant.
(a) After the eighth day of April, one thousand nine hundred
ninety-three, a reduction in the amount of benefits as specified in
subsection (b) of this section shall be made whenever benefits are
being paid for a permanent total disability award regardless of when
such the benefits were awarded. This section is not applicable to the
receipt of medical benefits or the payment therefor for medical
benefits, the receipt of permanent partial disability benefits, the
receipt of benefits by partially or wholly dependent persons, or to the
receipt of benefits pursuant to the provisions of subsection (e),
section ten of this article. Prior to the application of this section
to any claimant, the division commission shall give the claimant notice
of the effect of this section upon a claimant's award if and when such
the claimant later earns wages.
(b) Whenever applicable benefits are paid to a claimant with
respect to the same time period in which the claimant has earned wages
as a result of his or her employment, the following reduction in
applicable benefits shall be made. The claimant's applicable monthly
benefits and monthly net wages received from the current employment
shall be added together. If such the total exceeds by more than one hundred twenty percent of the amount of the claimant's monthly net
wages earned during his or her last employment prior to the award of
permanent total disability benefits, then such the excess shall be
reduced by one dollar for each two dollars that the claimant's monthly
benefits and monthly net wages exceed the one hundred twenty percent
level: Provided, That in no event shall applicable benefits be reduced
below the minimum weekly benefits as provided for in subdivisions (b)
and (d), section six of this article.
ARTICLE 4A. DISABLED WORKERS' RELIEF FUND.
§23-4A-1. Disabled workers' relief fund created.
For the relief of persons who are receiving benefits pursuant to
a permanent total disability award in amounts less than thirty-three
and one-third percent of the average weekly wage for the state of West
Virginia per month, and for the relief of widows who are receiving
benefits on account of the death of an employee in amounts less than
thirty-three and one-third percent of the average weekly wage in the
state of West Virginia per month, and for the relief of children of
employees deceased before one thousand nine hundred sixty-seven, who
are under the age of twenty-three and who are full-time students, and
for the relief of other persons who are receiving dependents' benefits
on account of the death of an employee in amounts less than the
specific monetary amounts set forth in section ten, article four of
this chapter and in effect as of July one the first day of July, one
thousand nine hundred seventy-three, there is hereby created continued
a separate fund, to be heretofore known as the "Disabled Workmen's
Relief Fund", and which shall hereafter be known as the "Disabled
Workers' Relief Fund", which fund shall consist of such any sums as
that are, from time to time, made available to carry out the objects
and purposes of this article. Said The fund shall be in the custody
of the state treasurer and disbursements therefrom from the fund shall
be made upon requisition signed by the commissioner executive director
to those persons entitled to participate therein in the fund and in
such amounts to each participant as is that are provided in section
three of this article.
§23-4A-3. Computation of benefits.
Each individual entitled to participate in the disabled workers'
relief fund shall be is entitled to receive payments without
application (except that an application shall be required under section
five of this article) from said the fund of an amount equal to the
difference between the amounts set forth in section one of this article
and the amount said the individual is in fact receiving by virtue of
and under the laws of this state. The first such payment shall be made
concurrently with the payment to him or her of workers' compensation
on the first day of August, one thousand nine hundred seventy-six, and
subsequent payments shall be made during the period thereafter in which
such the participant shall be is entitled to workers' compensation
benefits by virtue of and under the laws of this state.
§23-4A-5. Employers providing own system of compensation.
The commissioner executive director shall promptly require of
each employer who has elected to pay direct compensation direct under
the provisions of section nine, article two of this chapter a verified
list of the names and addresses of all persons to whom such the
employer is paying workers' compensation on account of permanent total
disability or because of the death of an employee and such any evidence
respecting such those persons as the commissioner executive director
may reasonably consider necessary to determine the eligibility of any
such person to participate in the disabled workers' relief fund. Any
person claiming the right to participate in said the fund under the
provisions of this section may file his or her application therefor for
participation with the commissioner executive director and shall be
accorded a hearing thereon on the application.
§23-4A-6. Powers of commission over disabled workers' relief fund.
In the investigation and determination of the right of persons to
participate in the disabled workmen's workers' relief fund, the
commissioner shall have executive director has and may exercise all the
powers which he or she possesses under the other articles of this
chapter. His or her powers and jurisdiction over each case shall be
is continuing, but there shall be no appeal from his the commission's
decisions to any other body or tribunal. No attorney, representative
or agent of any claimant or participant shall be is entitled to charge or receive a fee or compensation or gratuity in any form for
representing or assisting or pretending to represent or assist any
person to become a participant in said the disabled workmen's workers'
relief fund.
§23-4A-8. Disabled workers' relief fund; how funded.
For the purpose of carrying out the provisions of this article,
the commissioner board of managers shall transfer annually, out of the
interest earned during the previous year on investments held by the
workers' compensation fund, and out of the amount assessed against
self-insured employers pursuant to the provisions of section nine,
article two section nine of this chapter an amount estimated by the
commissioner executive director to be necessary to carry out the
provisions of this article for one year.
Such The money shall be deposited by the commissioner board of
managers in the disabled workers' relief fund, as required by this
article.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-2. Coal-workers' pneumoconiosis fund established.
For the relief of persons who are entitled to receive benefits by
virtue of Title IV of the federal Coal Mine Health and Safety Act of
1969, as amended, there is hereby established continued a fund to be
known as the coal-workers' pneumoconiosis fund, which fund shall be
separate from the workers' compensation fund. The coal-workers'
pneumoconiosis fund shall consist of premiums and other funds paid
thereto to the fund by employers, subject to the provisions of Title
IV of the federal Coal Mine Health and Safety Act of 1969, as amended,
who shall elect to subscribe to such the fund to ensure the payment of
benefits required by such the act.
The state treasurer shall be the custodian of the coal-workers'
pneumoconiosis fund, and all premiums, deposits or other moneys paid
thereto to the fund shall be deposited in the state treasury to the
credit of the coal-workers' pneumoconiosis fund. Disbursements from
such the fund shall be made upon requisition signed by the commissioner
executive director of the workers' compensation commission to those
persons entitled to participate therein in the fund. The West Virginia state board of investments shall have authority to may invest any
surplus, reserve or other moneys belonging to the coal-workers'
pneumoconiosis fund in accordance with article six, chapter twelve of
this code.
§23-4B-5. Payment of benefits.
Upon receipt of an order of compensation issued pursuant to a
claim for benefits filed under the provisions of Title IV of the
federal Coal Mine Health and Safety Act of 1969, as amended, the
commissioner executive director shall disburse the coal-workers'
pneumoconiosis fund in such the amounts and to such the persons as said
directed by the order shall direct.
§23-4B-6. Coal-workers' pneumoconiosis fund; how funded.
For the purpose of creating the coal-workers' pneumoconiosis
fund, each employer, who shall elect elects to subscribe to such the
fund, shall pay premiums based upon and being such a percentage of the
payroll of such the employer as determined by the commissioner may
determine board of managers. It shall be is the duty of the
commissioner board of managers to fix and maintain the lowest possible
rates of premiums consistent with the maintenance of a solvent fund and
the creation and maintenance of a reasonable surplus after providing
for payment to maturity of all liability insured pursuant to Title IV
of the federal Coal Mine Health and Safety Act of 1969, as amended.
Such premium The rates shall be adjusted annually or more often as may,
in the opinion of the commissioner board of managers, be necessary.
The commissioner board of managers may by rule and regulation
classify subscribers into groups or classes according to the nature of
the hazards incident to the business thereof of the subscribers and
assign premium rates thereto to the subscribers. In addition, the
commissioner board of managers may by rule and regulation prescribe
procedures for subscription, payroll reporting, premium payment,
termination of subscription, reinstatement and other matters pertinent
to such the subscribers' continuing participation in the coal-workers'
pneumoconiosis fund.
§23-4B-7. Administration.
The coal-workers' pneumoconiosis fund shall be administered by the commissioner of the bureau of employment programs executive
director of the workers' compensation commission, who shall employ such
any employees as may be necessary to discharge his or her duties and
responsibilities under this article. All payments of salaries and
expenses of such the employees and all expenses peculiar to the
administration of this article shall be made by the state treasurer
from the coal-workers' pneumoconiosis fund upon requisitions signed by
the commissioner executive director.
§23-4B-8b. Transfer of funds to workers' compensation fund.
(a) Notwithstanding any provision of section eight of this
article to the contrary, the assets which were previously transferred
from the coal-workers' pneumoconiosis fund and held in a separate
account may, on or after the first day of July, two thousand three, be
expended for workers' compensation fund liabilities.
(b) The Legislature hereby finds and declares that there is a
substantial actuarial surplus in the coal-workers' pneumoconiosis fund
in excess of one hundred fifty million dollars. The Legislature
further finds and declares that there is a substantial actuarial
deficit in the workers' compensation fund. The executive director
shall conduct an actuarial audit to determine the amount of the
actuarial surplus in the coal-workers' pneumoconiosis fund as of the
thirtieth day of June, two thousand three, and certify the amount, as
of that date, in a written order which together with the results of the
audit shall be a public record. The executive director shall also
obtain a statement from the commission's actuary that a distributable
surplus exists int eh coal-workers' pneumoconiosis fund. When the
actuary provides the statement, and notwithstanding any provision of
this article to the contrary, the executive director shall, by written
order, transfer and amount not to exceed one hundred fifty million
dollars from the coal-workers' pneumoconiosis fund to the workers'
compensation fund, which assets shall thereupon become merged into and
consolidated with the workers' compensation fund and expended for
workers' compensation fund liabilities: Provided, That a level of
reserve shall be retained in the coal-workers' pneumoconiosis fund
sufficient within a seventy-five percent confidence level, on an actuarial basis, to satisfy the payment of all claims incurred,
including claims which were incurred but not reported, on or before the
thirtieth day of June, two thousand three. In the event the
commission's actuary or an actuary employed by the board of managers
determines prior to the thirtieth day of June, two thousand six, that
the assets of the coal-workers' pneumoconiosis fund are not adequate
to enable the coal-workers' pneumoconiosis fund to meet its claim
obligations under Title IV of the federal Coal Mine Health and Safety
Act of 1996, as amended, the executive director may transfer an amount
not to exceed fifty million dollars from the workers' compensation fund
to the coal-workers' pneumoconiosis fund for expenditure to meet those
obligations.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-2. Employers' excess liability fund established.
(a) To provide insurance coverage for employers subject to this
chapter who may be subjected to liability for any excess of damages
over the amount received or receivable under this chapter, the division
commission may continue the fund known as the employers' excess
liability fund, which fund shall be separate from the workers'
compensation fund. The employers' excess liability fund shall consist
of premiums paid thereto to it by employers who may voluntarily elect
to subscribe to the fund for coverage of potential liability to any
person who may be entitled to any excess of damages over the amount
received or receivable under this chapter.
(b) The commissioner and the compensation programs performance
council are authorized to board of managers may provide for, by the
promulgation of a rule pursuant to subdivisions (b) and (c), section
seven, article three, chapter twenty-one-a of this code section one-a,
article one of this chapter, the continuance, abolition or sale of the
employers' excess liability fund established by section one of this
article. In the event that the fund is to be sold, the sale shall be
conducted through the solicitation of competitive bids. Any funds that
may remain after the sale or abolition of the employers' excess
liability fund shall be paid into and become a part of the workers'
compensation fund to be used for the purposes of that fund. In the event that the employers' excess liability fund program is abolished
and the remaining liabilities of that program exceed the amount
retained in the employers' excess liability fund, such the excess
liability including the costs of administration shall be paid for from
the workers' compensation fund.
§23-4C-3. Payment of excess damages from fund.
Upon receipt of a final order of a court determining the
liability under section two, article four of this chapter of a
subscribing employer and the amount of the excess of damages over the
amount received or receivable under this chapter, the commissioner
executive director shall make disbursements from the employers' excess
liability fund in such the amounts and to such the persons as such
directed by the final order may direct. In the event of a proposed
settlement of a disputed claim against a subscribing employer, the
commissioner executive director, upon approving the settlement upon
petition by the subscribing employer, shall make disbursements from the
employers' excess liability fund in such the amounts and to such the
persons as specified the approved settlement may specify. In the event
of the settlement of any disputed claim wherein in which one or more
of the persons entitled to the proceeds to be paid pursuant to such the
settlement is under a legal disability by reason of age, mental
incapacity or other reason, such the settlement, if required by other
provisions of law to be approved by a circuit court shall be approved
by the circuit court of the county wherein such in which the person
under disability is a resident or wherein in which a civil action could
be brought and maintained upon such the claim, in addition to being
approved by the commissioner commission as required by this section.
The commissioner executive director shall by legislative rule establish
criteria and procedures for the settlement of all disputed claims. In
order to expeditiously establish such criteria and procedures, the
commissioner is hereby given authority to promulgate such emergency
rule or rules as may be necessary in accordance with the provisions of
section fifteen, article three, chapter twenty-nine-a of this code.
The provisions of said section fifteen, article three, chapter twenty-
nine-a notwithstanding such emergency rule, whether procedural, interpretive or legislative, shall be effective upon the filing thereof
in the state register and shall have an effective period of not to
exceed eighteen months, unless any such rule or rules be altered or
amended or such period of time shortened or lengthened by subsequent
act of the Legislature. No action shall lie for de novo or other
review of such rule to contest or question the existence of
circumstances justifying the promulgation of an emergency rule nor to
challenge the validity of such rule because of its classification as
an emergency rule.
§23-4C-4. Employers' excess liability fund; how funded.
For the purpose of creating the employers' excess liability fund,
each employer who shall elect elects to subscribe to the fund shall pay
premiums based upon and being such a percentage of the payroll of the
employer as determined by the commissioner may determine board of
managers. It shall be is the duty of the commissioner board of
managers to fix and maintain the lowest possible rates or premiums
consistent with the maintenance of a solvent fund. The premium rates
shall be adjusted annually or more often as may, in the opinion of the
commissioner board of managers, be necessary.
The commissioner board of managers shall initially classify
subscribers into groups or classes according to the nature of the
unusual hazards incident to the business thereof of the subscribers as
contemplated by section four, article two of this chapter and assign
premium rates thereto to the subscribers. The fixing, maintaining and
adjusting of premium rates and the initial classification of
subscribers into groups or classes pursuant to this section shall be
deemed to be are findings or determinations of fact and not a
legislative rule. In addition, the commissioner board of managers
shall by legislative rule prescribe procedures for subscription,
payroll reporting, premium payment, termination of subscription,
reinstatement, reclassification of groups, classes or subscribers, the
increase or decrease of premiums based upon incidence of liability and
amounts awarded, and other matters pertinent to the subscribers'
continuing participation in the employers' excess liability fund.
§23-4C-5. Administration.
The employers' excess liability fund shall be administered by the
commissioner of employment programs executive director, who shall
employ such any employees as may be that are necessary to discharge his
or her duties and responsibilities under this article. All payments of
salaries and expenses of the employees and all expenses peculiar to the
administration of this article shall be made by the state treasurer
from the employers' excess liability fund upon requisitions signed by
the commissioner executive director.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured of decision; procedures
on claims; objections and hearing.
(a) The workers' compensation division shall have full power and
authority to commission may hear and determine all questions within its
jurisdiction. In matters arising under articles three and four of this
chapter, the division commission shall promptly review and investigate
all claims. The parties to a claim shall file such the information in
support of their respective positions as they deem consider proper.
In addition, the division is authorized to commission may develop such
additional information as it deems that it considers to be necessary
in the interests of fairness to the parties and in keeping with the
fiduciary obligations owed to the fund. With regard to any issue which
is ready for a decision, the division commission shall explain the
basis of its decisions.
(b) Except with regard to interlocutory matters, upon making any
decision, upon the making or refusing to make any award or upon the
making of any modification or change with respect to former findings
or orders, as provided by section sixteen, article four of this
chapter, the division commission shall give notice, in writing, to the
employer, employee, claimant, or dependant as the case may be, of its
action, which. The notice shall state the time allowed for filing an
objection to such the finding and such. The action of the division
shall be commission is final unless the employer, employee, claimant
or dependant shall, within thirty days after the receipt of such the
notice, object in writing, to such the finding, and unless. Unless an
objection is filed within such the thirty-day period, such the finding or action shall be forever is final, such. This time limitation being
hereby declared to be is a condition of the right to litigate such the
finding or action and hence jurisdictional. Any such objection shall
be filed with the office of judges with a copy served upon the division
commission and other parties in accordance with the procedures set
forth in sections eight and nine of this article. In all instances
where a self-insured employer or a third-party administrator has made
claims decisions as authorized in this chapter, they shall provide
claimants and the commission notice of all claims decisions as provided
for by rules for self administration promulgated by the board of
managers, and shall be bound by each requirement imposed upon the
commission by this article.
(c) Where a finding or determination of the division commission
is protested only by the employer, and the employer does not prevail
in its protest, and in the event the claimant is required to attend a
hearing by subpoena or agreement of counsel or at the express direction
of the division commission or office of judges, then such the claimant
in addition to reasonable traveling and other expenses shall be
reimbursed for loss of wages incurred by the claimant in attending such
the hearing.
(d) Once an objection has been filed with the office of judges,
the parties to the objection shall be offered an opportunity for
mediation of the disputed issue by the division. If all of the parties
to the objection agree to mediation, the division shall designate a
deputy who was not involved in the original decision to act as
mediator: Provided, That on issues related solely to the medical
necessity of proposed medical treatment or diagnostic services, the
division shall offer the parties to the objection a selection of names
of medical providers in the appropriate specialty. The parties shall
then either agree upon a medical provider who shall act as mediator or,
in the absence of an agreement, the division shall select a medical
provider who shall act as mediator. In cases where issues of medical
necessity are intertwined with nonmedical treatment or nondiagnostic
issues, both a medical provider and a designated deputy shall act as
comediators and shall consider their respective issues. Neither shall be empowered to overturn the decision of the other.
Upon entering into mediation, the parties shall inform the office
of judges of that action and the office of judges shall stay further
action on the objection.
The mediator shall solicit the positions of the parties and shall
review such additional information as the parties or the division shall
furnish. The mediator shall then issue a decision in writing with the
necessary findings of fact and conclusions of law to support that
decision. If any party disagrees with the decision, that party may
note its objection to the office of judges, the division and the other
parties, and the office of judges shall lift the stay on the original
protest. The decision and any information introduced during the
attempted mediation shall be subject to consideration by the office of
judges in making its decision on the objection. Upon acceptance by the
parties of the result of the mediation, the office of judges shall
dismiss the objection with prejudice.
The mediator shall conduct the mediation in an informal manner
and without regard to the formal rules of evidence and procedure. Once
the parties agree to mediation, then the agreement cannot be withdrawn.
(e) The panel of medical providers who shall serve as mediators
shall be selected and approved by the compensation programs performance
council. A medical provider serving as a mediator shall have the same
protections from liability as does the division's employees with regard
to their decisions including coverage by the board of risk management
which shall be provided by the workers' compensation division.
(f) (d) The division is expressly authorized to commission or
self-insured employer may amend, correct or set aside any order or
decision on any issue entered by it which is on its face defective or
clearly erroneous or the result of mistake, clerical error or fraud.
Jurisdiction to take this action shall continue continues until the
expiration of one hundred eighty days from the date of entry of an
order unless the order is sooner affected by appellate action:
Provided, That corrective actions in the case of fraud may be taken at
any time.
(g) (e) All objections to orders of the division commission or self-insured employers shall be styled in the name of the workers'
compensation division commission. All appeals prosecuted from the
office of judges or from the appeal board shall either be in the name
of the workers' compensation division commission or shall be against
the workers' compensation division commission unless the parties to the
appeal are limited to a claimant and a self-insured employer. In all
such matters actions under this article, the workers' compensation
division commission shall be the party in interest unless the parties
to the appeal are limited to a claimant and a self-insured employer.
§23-5-2. Application by employee for further adjustment of claim;
objection to modification; hearing.
In any case where an injured employee makes application in
writing for a further adjustment of his or her claim under the
provisions of section sixteen, article four of this chapter, and such
the application discloses cause for a further adjustment thereof, the
division commission shall, after due notice to the employer, make such
the modifications, or changes with respect to former findings or orders
in such the claim as may be that are justified, and any. Any party
dissatisfied with any such modification or change so made by the
division shall commission is, upon proper and timely objection, be
entitled to a hearing, as provided in section nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
If, however, in any case in which application for further
adjustment of a claim is filed under the preceding section, it shall
appear appears to the division commission that such an application
filed under section two of this article fails to disclose a progression
or aggravation in the claimant's condition, or some other fact or facts
which were not theretofore previously considered by the division
commission in its former findings, and which would entitle such the
claimant to greater benefits than the claimant has already received,
the division commission shall, within a reasonable time, notify the
claimant and the employer that such the application fails to establish
a prima facie cause for reopening the claim such. The notice shall be
in writing stating the reasons for denial and the time allowed for
objection to such the decision of the division commission. The claimant may, within thirty days after receipt of such the notice,
object in writing to such the finding and unless. Unless the objection
is filed within such the thirty-day period, no such objection shall be
allowed, such. This time limitation being hereby declared to be is a
condition of the right to such objection and hence jurisdictional.
Upon receipt of an objection, the office of judges shall afford the
claimant an evidentiary hearing as provided in section nine of this
article.
§23-5-4. Application by employer for modification of award; objection
to modification; hearing.
In any case wherein in which an employer makes application in
writing for a modification of any award previously made to an employee
of said the employer, the commission shall make a decision upon the
application. and such If the application discloses cause for a further
adjustment thereof, the division commission shall, after due notice to
the employee, make such the modifications or changes with respect to
former findings or orders in such form as may be that are justified,
and any. Any party dissatisfied with any such modification or change
so made by the division shall commission or by the denial of an
application for modification is, upon proper and timely objection, be
entitled to a hearing as provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any such case it shall appear appears to the division
commission that the application filed pursuant to section four of this
article fails to disclose some fact or facts which were not theretofore
previously considered by the division commission in its former
findings, and which would entitle such the employer to any modification
of said the previous award, the division commission shall, within sixty
days from the receipt of such the application, notify the claimant and
employer that such the application fails to establish a just cause for
modification of said the award. Such The notice shall be in writing
stating the reasons for denial and the time allowed for objection to
such the decision of the division commission. The employer may, within
thirty days after receipt of said the notice, object in writing to such
the decision, and unless. Unless the objection is filed within such the thirty-day period, no such objection shall be allowed, such. This
time limitation being hereby declared to be is a condition of the right
to such objection and hence jurisdictional. Upon receipt of such the
objection, the office of judges shall afford the employer an
evidentiary hearing as provided in section nine of this article.
§23-5-6. Time periods for objections and appeals; extensions.
Notwithstanding the fact that the time periods set forth for
objections, protests and appeals to or from the workers' compensation
appeal board office of judges, are jurisdictional, such the periods may
be extended or excused upon application of either party within a period
of time equal to the applicable period by requesting an extension of
such the time period showing good cause or excusable neglect,
accompanied by the objection or appeal petition. In exercising such
discretion the administrative law judge, appeal board or court, as the
case may be, shall consider whether the applicant was represented by
counsel and whether timely and proper notice was actually received by
the applicant or the applicant's representative.
§23-5-7. Compromise and settlement.
With the exception of medical benefits for non-orthopedic
occupational disease claims, the claimant, the employer and the
workers' compensation division commission may negotiate a final
settlement of any and all issues in a claim wherever the claim may then
be is in the review administrative or appellate processes. Upon
entering into an agreement, the parties shall file the written and
executed agreement with the office of judges. The office of judges
shall review the proposed agreement to determine if it is fair and
reasonable to the parties and shall ensure that each of the parties are
fully aware of the effects of the agreement including what each party
is conceding in exchange for the agreement. If the office of judges
concludes that the agreement is not fair or is not reasonable or that
one of the parties is not fully informed, then the agreement will not
be approved, which. The decision on this question shall is not be
reviewable. If the employer is not active in the claim, then the
division commission may negotiate a final settlement of any and all
issues in a claim except for medical benefits for non-orthopedic occupational disease claims with the claimant. Upon approval of the
settlement, it shall be made a part of the claim record and the. The
office of judges shall send written notice of the settlement to all
parties and, where appropriate, to the appeal board or the supreme
court of appeals. Except in cases of fraud, no issue that is the
subject of an approved settlement agreement may be reopened by any
party, including the division commission. Any settlement agreement may
provide for a lump sum payment or a structured payment plan, or any
combination thereof, or such any other basis as the parties may agree.
If such a self-insured employer later fails to make the agreed upon
payment, the division commission shall assume the obligation to make
the payments and shall be entitled to recover the amounts paid or to
be paid from the self-insured employer and its sureties or guarantors
or both as provided for in sections five and five-a, article two of
this chapter.
The amendments to this section enacted during the regular session
of the Legislature in the year one thousand nine hundred ninety-nine
shall apply to all settlement agreements executed after such the
effective date.
§23-5-8. Designation of office of administrative law judges; powers
of chief administrative law judge.
(a) The workers' compensation office of administrative law judges
previously created pursuant to chapter twelve, acts of the Legislature,
one thousand nine hundred ninety, second extraordinary session, is
hereby continued and designated to be an integral part of the workers'
compensation system of this state. The office of judges shall be under
the supervision of a chief administrative law judge who shall be
appointed by the governor, with the advice and consent of the Senate.
The previously appointed incumbent of that position who was serving on
the second day of February, one thousand nine hundred ninety-five,
shall continue to serve in that capacity unless subsequently removed
as provided for in subsection (b) of this section.
(b) The chief administrative law judge shall be a person who has
been admitted to the practice of law in this state and shall also have
had at least four years of experience as an attorney. The chief administrative law judge's salary shall be set by the compensation
programs performance workers' compensation board of managers created
in section one, article three, chapter twenty-one-a of this code. Said
The salary shall be within the salary range for comparable chief
administrative law judges as determined by the state personnel board
created by section six, article six, chapter twenty-nine of said this
code. The chief administrative law judge may only be removed by a vote
of two thirds of the members of the compensation programs performance
council workers' compensation board of managers and shall not be
removed except for official misconduct, incompetence, neglect of duty,
gross immorality or malfeasance and then only after he or she has been
presented in writing with the reasons for his or her removal and is
given opportunity to respond and to present evidence. No other
provision of this code purporting to limit the term of office of any
appointed official or employee or affecting the removal of any
appointed official or employee shall be is applicable to the chief
administrative law judge.
(c) By and with the consent of the commissioner the The chief
administrative law judge shall employ administrative law judges and
other personnel as that are necessary for the proper conduct of a
system of administrative review of orders issued by the workers'
compensation division commission which orders have been objected to by
a party. and all such The employees shall be in the classified service
of the state. Qualifications, compensation and personnel practice
relating to the employees of the office of judges, other than the chief
administrative law judge, shall be governed by the provisions of the
statutes, this code and rules and regulations of the classified service
pursuant to article six, chapter twenty-nine of this code. All such
additional administrative law judges shall be persons who have been
admitted to the practice of law in this state and shall also have had
at least two years of experience as an attorney. The chief
administrative law judge shall supervise the other administrative law
judges and other personnel which collectively shall be referred to in
this chapter as the office of judges.
(d) The administrative expense of the office of judges shall be included within the annual budget of the workers' compensation division
commission.
(e) Subject to the approval of the compensation programs
performance council pursuant to subdivisions (b) and (c), section
seven, article three, chapter twenty-one-a of this code, the The office
of judges shall, from time to time, promulgate rules of practice and
procedure for the hearing and determination of all objections to
findings or orders of the workers' compensation division pursuant to
section one of this article commission. The office of judges shall not
have the power to initiate or to promulgate legislative rules as that
phrase is defined in article three, chapter twenty-nine-a of said this
code. Any rules adopted pursuant to this section which are applicable
to the provisions of this article are not subject to sections nine
through sixteen, inclusive, article three, chapter twenty-nine-a of
this code. The office of judges shall follow the remaining provisions
of said chapter for giving notice to the public of its actions and the
holding of hearings or receiving of comments on the rules.
(f) The chief administrative law judge shall continue to have has
the power to hear and determine all disputed claims in accordance with
the provisions of this article, establish a procedure for the hearing
of disputed claims, take oaths, examine witnesses, issue subpoenas,
establish the amount of witness fees, keep such records and make such
reports as that are necessary for disputed claims and exercise such any
additional powers, including the delegation of such powers to
administrative law judges or hearing examiners as may be that are
necessary for the proper conduct of a system of administrative review
of disputed claims. The chief administrative law judge shall make such
reports as may be that are requested of him or her by the compensation
programs performance council workers' compensation board of managers.
§23-5-9. Hearings on objections to commission or self-insured employer
decisions; mediation; remand.
(a) Objections to a decision of the workers' compensation
division decision commission or of a self-insured employer made
pursuant to the provisions of section one of this article shall be
filed with the office of judges. Upon receipt of an objection, the office of judges shall notify the division commission and all other
parties of the filing of the objection. The office of judges shall
establish by rule promulgated in accordance with the provisions of
subsection (e), section eight of this article an adjudicatory process
that enables parties to present evidence in support of their positions
and provides an expeditious resolution of the objection. The employer,
the claimant and the division commission shall be notified of any
hearing at least ten days in advance.
(b) The office of judges shall establish a program for mediation
to be conducted in accordance with the requirements of rule twenty-five
of the West Virginia trial court rules. The parties may agree that the
result of the mediation is binding. A case may be referred to
mediation by the administrative law judge on his or her own motion, on
motion of a party or by agreement of the parties. Upon issuance of an
order for mediation, the office of judges shall assign a mediator from
a list of qualified mediators maintained by the West Virginia state
bar.
(b)(c) The office of judges shall keep full and complete records
of all proceedings concerning a disputed claim. Subject to the rules
of practice and procedure promulgated pursuant to section eight of this
article, the record upon which the matter shall be decided shall
include any evidence submitted by a party to the office of judges,
evidence taken at hearings conducted by the office of judges and any
documents in the division's commission's claim files which relate to
the subject matter objected to of the objection. The record may
include evidence or documents submitted in electronic form or other
appropriate medium in accordance with the rules of practice and
procedure referred to herein. The office of judges shall is not be
bound by the usual common law or statutory rules of evidence.
(c)(d) All hearings shall be conducted as determined by the chief
administrative law judge pursuant to the rules of practice and
procedure promulgated pursuant to section eight of this article. Upon
consideration of the entire designated record, the chief administrative
law judge or other authorized adjudicator within the office of judges
shall, based on the determination of the facts of the case and applicable law, render a decision affirming, reversing or modifying the
division's commission's action. Said The decision shall contain
findings of fact and conclusions of law and shall be mailed to all
parties.
(d)(e) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of July September, one
thousand nine hundred ninety-nine two thousand three. Until the rule
is finally promulgated, the prior provisions of this section as found
in chapter two hundred fifty-three of the acts of the Legislature, one
thousand nine hundred ninety-five, shall remain in effect any rules
previously promulgated shall remain in full force and effect.
(f) The office of judges may remand a claim to the commission for
further development of the facts or administrative matters as, in the
opinion of the administrative law judge, may be necessary for a full
and complete disposition of the case. The administrative law judge
shall establish a time within which the commission must report back to
the administrative law judge.
(g) The decision of the workers' compensation office of judges
regarding any objections to a decision of the workers' compensation
commission or a self-insured employer is final, and benefits shall be
paid or denied in accordance with the decision unless the decision is
subsequently appealed and reversed in accordance with the procedures
set forth in this article and in article one-b, chapter fifty-one of
this code.
§23-5-10. Appeal from administrative law judge decision to appeal
board.
The employer, claimant or workers' compensation division
commission may appeal to the appeal board created in section eleven of
this article for a review of a decision by an administrative law judge.
No appeal or review shall lie unless application therefor be made
within thirty days of receipt of notice of the administrative law
judge's final action or in any event within sixty days of the date of
such final action, regardless of notice and, unless the application for
appeal or review is filed within the time specified, no such appeal or
review shall be allowed, such time limitation being hereby declared to be a condition of the right of such appeal or review and hence
jurisdictional.
§23-5-10a. Appeal from administrative law judge decision to
intermediate court of appeals.
(a) On and after the first day of January, two thousand four, a
claimant, employer or the workers' compensation commission may petition
the intermediate court of appeals created pursuant to article one-b,
chapter fifty-one of this code, for review of a final decision of the
workers' compensation office of judges. The petition shall be filed
in accordance with the procedural requirements of this article and of
article one-b, chapter fifty-one of this code and in the rules of the
intermediate court of appeals. No appeal shall be allowed unless the
application therefor is made within thirty days of receipt of the final
decision of the office of judges, but in no event, regardless of
notice, more than sixty days after the final decision, such time
limitation being hereby declared to be a condition of the right of such
appeal or review and, hence, jurisdictional.
(b) The court may hear the appeal only if, in the discretion of
the intermediate court of appeals, it appears on the face of the
petition that the decision of the office of judges is:
(1) The result of a violation of statutory or constitutional
provisions or administrative rules of the workers compensation
commission or the office of judges;
(2) The result of erroneous conclusions of law;
(3) Beyond the statutory authority or jurisdiction of the office
of judges;
(4) The result of unlawful procedures;
(5) Based on improper or unsupported findings of fact; or
(6) Arbitrary and capricious or characterized by abuse or
unwarranted exercise of discretion.
§23-5-11. Workers' compensation appeal board-generally.
There shall continue to be a board to be known as the "Workers'
Compensation Appeal Board", which shall be referred to in this article
as the "board", to be composed of three members. The board shall
perform the duties and responsibilities assigned to it by this code consistent with the administrative policies developed by the governor
and the commissioner executive director with the assistance of the
compensation programs performance council board of managers.
Two members of such board shall be of opposite politics to the
third, and all three shall be citizens of this state who have resided
therein for a period of at least five years. All members of the board
shall be appointed by the governor and shall receive an annual salary
in accordance with the provisions of section two-a, article seven,
chapter six of this code. The salaries shall be payable in monthly
installments, and the members shall also be entitled to all reasonable
and necessary traveling and other expenses actually incurred while
engaged in the performance of their duties. The governor shall
designate one of the members of the board as chairman thereof, and the
board shall meet at the capitol or at such other places throughout the
state as it may consider proper at regular sessions designated as
"Appeal Board Hearing Days" commencing on the first Tuesday of every
month or the next regular business day, for a period of at least three
days, for the purpose of conducting hearings on appeals, and continuing
as long as may be necessary for the proper and expeditious transaction
of the hearings, decisions and other business before it. All clerical
services required by the board shall be paid for by the commissioner
executive director from any funds at his or her disposal. The board
shall, from time to time, compile and promulgate such rules of practice
and procedure as to it shall appear proper for the prompt and efficient
discharge of its business and such rules shall be submitted first to
the compensation programs performance council board of managers for its
approval pursuant to subdivisions (b) and (c), section seven, article
three, chapter twenty-one-a of this code and, if so approved, then to
the supreme court of appeals for approval, and if approved by such
court shall have the same force and effect as the approved rules of
procedure of circuit courts. By and with the consent of the
commissioner executive director, the board shall employ such clerical
staff as may be necessary for the efficient conduct of its business.
Salaries of the board, and its employees, and all of its necessary
operating expenses shall be paid from the workers' compensation fund. The board shall submit its annual budget to the commissioner executive
director for inclusion as a separate item in the budget estimates
prepared by him or her annually and within the limits of such budget,
all expenses of the board shall be by the requisition of the
commissioner executive director. Salaries of the employees of the
board shall be governed by the provisions of article six, chapter
twenty-nine of this code.
The board shall report monthly to the compensation programs
performance council on the status of all claims on appeal. After the
effective date of the amendment and reenactment of this section in the
year two thousand three, the board shall report monthly to the board
of managers on the status of all claims on appeal.
§23-5-12. Appeal to board; procedure; remand and supplemental
hearing.
(a) Any employer, employee, claimant or dependent, who shall feel
aggrieved at any final action of the administrative law judge taken
after a hearing held in accordance with the provisions of section nine
of this article, shall have the right to appeal to the board created
in section eleven of this article for a review of such action. The
workers' compensation division commission shall likewise have the right
to appeal to the appeal board any final action taken by the
administrative law judge. The aggrieved party shall file a written
notice of appeal with the office of judges directed to such board,
within thirty days after receipt of notice of the action complained of,
or in any event, regardless of notice, within sixty days after the date
of the action complained of, and unless the notice of appeal is filed
within the time specified, no such appeal shall be allowed, such time
limitation being hereby declared to be a condition of the right to such
appeal and hence jurisdictional; and the office of judges shall notify
the other parties immediately upon the filing of a notice of appeal.
The office of judges shall forthwith make up a transcript of the
proceedings before the office of judges and certify and transmit the
same to the board. Such certificate shall incorporate a brief recital
of the proceedings therein had and recite each order entered and the
date thereof.
(b) The board shall review the action of the administrative law
judge complained of at its next meeting after the filing of notice of
appeal, provided such notice of appeal shall have been filed thirty
days before such meeting of the board, unless such review be postponed
by agreement of parties or by the board for good cause. The board
shall set a time and place for the hearing of arguments on each claim
and shall notify the interested parties thereof, and briefs may be
filed by the interested parties in accordance with the rules of
procedure prescribed by the board. The board may affirm the order or
decision of the administrative law judge or remand the case for further
proceedings. It shall reverse, vacate or modify the order or decision
of the administrative law judge if the substantial rights of the
petitioner or petitioners have been prejudiced because the
administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the
administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(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.
(c) After a review of the case, the board shall sustain the
finding of the administrative law judge, in which case it need not make
findings of fact or conclusions of law, or enter such order or make
such award as the administrative law judge should have made, stating
in writing its reasons therefor, and shall thereupon certify the same
to the workers' compensation division commission and chief
administrative law judge, who shall proceed in accordance therewith.
(d) Instead of affirming, reversing or modifying the decision of
the administrative law judge as aforesaid, the board may, upon motion
of any party or upon its own motion, for good cause shown, to be set
forth in the order of the board, remand the case to the chief
administrative law judge for the taking of such new, additional or further evidence as in the opinion of the board may be necessary for
a full and complete development of the facts of the case. In the event
the board shall remand the case to the chief administrative law judge
for the taking of further evidence therein, the administrative law
judge shall proceed to take such new, additional or further evidence
in accordance with any instruction given by the board, and shall take
the same within thirty days after receipt of the order remanding the
case, giving to the interested parties at least ten days' written
notice of such supplemental hearing, unless the taking of evidence
shall be postponed by agreement of parties, or by the administrative
law judge for good cause. After the completion of such supplemental
hearing, the administrative law judge shall, within sixty days, render
his or her decision affirming, reversing or modifying the former action
of the administrative law judge, which decision shall be appealable to,
and proceeded with by the appeal board in like manner as in the first
instance. In addition, upon a finding of good cause, the board may
remand the case to the workers' compensation division commission for
further development. Any decision made by the division commission
following such a remand shall be subject to objection to the office of
judges and not to the board. The board may remand any case as often
as in its opinion is necessary for a full development and just decision
of the case. All appeals from the action of the administrative law
judge shall be decided by the board at the same session at which they
are heard, unless good cause for delay thereof be shown and entered of
record. In all proceedings before the board, any party may be
represented by counsel.
§ 23-5-15. Appeals from final decisions of board to supreme court of
appeals; procedure; costs.
From any final decision of the board, including any order of
remand, an application for Before the first day of January, two
thousand four, review of any final decision of the board, including any
order of remand, may be prosecuted by either party or by the workers'
compensation division commission to the supreme court of appeals within
thirty days from the date thereof of the final order by the filing of
a petition therefor to such with the court against the board and the adverse party or parties as respondents, and unless . Unless the
petition for review is filed within such the thirty-day period, no such
appeal or review shall be allowed, such time limitation being hereby
declared to be a condition of the right to such appeal or review and
hence jurisdictional; and the. The clerk of such the supreme court of
appeals shall notify each of the respondents and the workers'
compensation division commission of the filing of such petition. The
board shall, within ten days after receipt of such notice, file with
the clerk of the court the record of the proceedings had before it,
including all the evidence. The court or any judge thereof in vacation
may thereupon determine whether or not a review shall be granted. And
if granted to a nonresident of this state, he or she shall be required
to execute and file with the clerk before such order or review shall
become effective, a bond, with security to be approved by the clerk,
conditioned to perform any judgment which may be awarded against him
or her thereon. The board may certify to the court and request its
decision of any question of law arising upon the record, and withhold
its further proceeding in the case, pending the decision of court on
the certified question, or until notice that the court has declined to
docket the same. If a review be granted or the certified question be
docketed for hearing, the clerk shall notify the board and the parties
litigant or their attorneys and the workers' compensation division,
commission of that fact by mail. If a review be granted or the
certified question docketed, the case shall be heard by the court in
the same manner as in other cases, except that neither the record nor
briefs need be printed. Every such review granted or certified
question docketed prior to thirty days before the beginning of the
term, shall be placed upon the docket for such term. The attorney
general shall, without extra compensation, represent the board in such
cases. The court shall determine the matter so brought before it and
certify its decision to the board and to the division. The cost of
such proceedings on petition, including a reasonable attorney's fee,
not exceeding thirty dollars to the claimant's attorney, shall be fixed
by the court and taxed against the employer if the latter be
unsuccessful, and if the claimant, or the division commission (in case the latter be the applicant for review) be unsuccessful, such costs,
not including attorney's fees, shall be taxed against the division
commission, payable out of the workers' compensation fund, or shall be
taxed against the claimant, in the discretion of the court. But there
shall be no cost taxed upon a certified question.
§23-5-15a. Appeals from final decisions of the intermediate court of
appeals to the supreme court of appeals.
On and after the first day of January, two thousand four, either
party or the workers' compensation commission may request review of any
final decision of the intermediate court of appeals created pursuant
to article one-b, chapter fifty-one of this code, including any order
of remand, by filing a petition for appeal against the office of judges
and the adverse party with the supreme court of appeals in accordance
with the procedures set forth in rule thirteen-a of the West Virginia
Rules of Appellate Procedure. Any petition for appeal must be filed
with the clerk of the supreme court of appeals.
§23-5-17. Termination of office of judges.
The office of judges shall terminate terminates on the first day
of July, two thousand three nine, pursuant to the provisions of article
ten, chapter four of this code unless sooner terminated, continued or
reestablished pursuant to the provisions of that article.
§23-5-18. Workers' compensation appeal board termination.
Pursuant to the provisions of article ten, chapter four of this
code, the workers' compensation appeal board shall continue to exist
until the first day of July, two thousand three, unless sooner
terminated, continued or reestablished by act of the Legislature.
After the thirty-first day of December, two thousand three, the
workers' compensation appeal board shall be terminated, the provisions
of sections ten, eleven, twelve, fourteen and fifteen of this article
shall be of no further force and effect, and all matters pending before
the appeal board on the thirty-first day of December, two thousand
three shall be transferred to the intermediate court of appeals created
in article one-b, chapter fifty-one of this code.
CHAPTER 26. STATE BENEVOLENT INSTITUTIONS.
ARTICLE 8. EMERGENCY HOSPITALS.
§26-8-2. Patients; expenses; disposition of receipts.
The state commissioner of public institutions department of
health and human resources shall admit to said the hospitals, under its
rules and regulations, persons requiring hospital care and shall treat
free of charge persons accidentally injured in this state while engaged
in their usual employment, but preference at all times shall be given
to persons accidentally injured: Provided, That the commissioner of
the bureau of employment programs executive director of the workers'
compensation commission shall pay to said the hospitals for the
treatment of anyone entitled to benefits or aid out of the workers'
compensation fund the same fee or expenses as that would be paid to a
private hospital for similar treatment. All moneys collected under
this section shall be paid into the state treasury through the state
commissioner of public institutions as required in section thirteen,
article one, chapter twenty-five of this code.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-125. Employment and income reporting.
(a) For purposes of this section:
(1) "Employee" means an individual who is an "employee" for
purposes of federal income tax withholding, as defined in 26 U. S. C.
§3401;
(2) "Employer" means the person or entity for whom an individual
performs or performed any service of whatever nature and who has
control of the payment of the individual's wages for performance of
such the service or services, as defined in 26 U. S. C. §3401;
(3) An individual is considered a "new hire" on the first day in
which that individual performs services for remuneration and on which
an employer begins to withhold amounts for income tax purposes.
(b) Except as provided in subsections (c) and (d) of this
section, all employers doing business in the state shall report to the
bureau for child support enforcement:
(1) The hiring of any person who resides or works in this state to whom the employer anticipates paying earnings; and
(2) The rehiring or return to work of any employee who resides or
works in this state.
(c) Employers are not required to report the hiring, rehiring or
return to work of any person who is an employee of a federal or state
agency performing intelligence or counterintelligence functions if the
head of such the agency has determined that reporting could endanger
the safety of the employee or compromise an ongoing investigation or
intelligence mission.
(d) An employer that has employees in states other than this
state and that transmits reports magnetically or electronically is not
required to report to the bureau for child support enforcement the
hiring, rehiring or return to work of any employee if the employer has
filed with the secretary of the federal department of health and human
services, as required by 42 U. S. C. §653A, a written designation of
another state in which it has employees as the reporting state.
(e) Employers shall report by mailing to the bureau for child
support enforcement a copy of the employee's W-4 form; however, an
employer may transmit such the information through another means if
approved in writing by the bureau for child support enforcement prior
to the transmittal. The report shall include the employee's name,
address and social security number, the employer's name and address,
any different address of the payroll office and the employer's federal
tax identification number. The employer may report other information,
such as date of birth or income information, if desired.
(f) Employers shall submit a report within fourteen days of the
date of the hiring, rehiring or return to work of the employee.
However, if the employer transmits the reports magnetically or
electronically by two monthly submissions, the reports shall be
submitted not less than twelve days nor more than sixteen days apart.
(g) An employer shall provide to the bureau for child support
enforcement, upon its written request, information regarding an
obligor's employment, wages or salary, medical insurance, start date
and location of employment.
(h) Any employer who fails to report in accordance with the provisions of this section shall be assessed a civil penalty of no more
than twenty-five dollars per failure. If the failure to report is the
result of a conspiracy between the employer and the employee not to
supply the required report or to supply a false or incomplete report,
the employer shall be assessed a civil penalty of no more than five
hundred dollars.
(i) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs of
reporting.
(j) Uses for the new hire information include, but are not
limited to, the following:
(1) The state directory of new hires shall furnish the
information to the national directory of new hires;
(2) The bureau for child support enforcement shall use
information received pursuant to this section to locate individuals for
purposes of establishing paternity and of establishing, modifying and
enforcing child support obligations and may disclose such the
information to any agent of the agency that is under contract with the
bureau to carry out such those purposes;
(3) State agencies responsible for administering a program
specified in 42 U. S. C. §1320b-7(b) shall have access to information
reported by employers for purposes of verifying eligibility for the
program; and
(4) The bureau of employment programs and the workers'
compensation commission shall have access to information reported by
employers for purposes of administering employment security and
workers' compensation programs.
§48-18-131. Access to records, confidentiality.
(a) All records in the possession of the bureau for child support
enforcement, including records concerning an individual case of child
or spousal support, shall be kept is confidential and shall not be
released except as provided below follows:
(1) Records shall be disclosed or withheld as required by federal
law or regulations promulgated thereunder notwithstanding other
provisions of this section.
(2) Information as to the whereabouts of a party or the child
shall not be released to a person against whom a protective order has
been entered with respect to such that party or child or where the
state has reason to believe that the release of the information to the
person making the request may result in physical or emotional harm to
the party or the child.
(3) The phone number, address, employer and other information
regarding the location of the obligor, the obligee and the child shall
only be disclosed: (A) Upon his or her written consent, to the person
whom the consent designates; or (B) notwithstanding subdivision (4) of
this subsection, to the obligee, the obligor, the child or the
caretaker or representative of the child, upon order of a court if the
court finds that the disclosure is for a bona fide purpose, is not
contrary to the best interest of a child and does not compromise the
safety of any party: Provided, That the identity and location of the
employer may be disclosed on the letters, notices and pleadings of the
bureau as necessary and convenient for the determination of support
amounts and the establishment, investigation, modification,
enforcement, collection and distribution of support.
(4) Information and records other than the phone number, address,
employer and information regarding the location of the obligor, the
obligee and the child shall be disclosed to the obligor, the obligee,
the child or the caretaker of the child or his or her duly authorized
representative, upon his or her written request: Provided, That when
the obligor requests records other than collection and distribution
records, financial records relevant to the determination of the amount
of support pursuant to the guidelines, or records the obligor has
supplied, the bureau shall mail a notice by first-class mail to the
last known address of the obligee notifying him or her of the request.
The notice shall advise the obligee of his or her right to object to
the release of records on the grounds that the records are not relevant
to the determination of the amount of support or the establishment,
modification, enforcement, collection or distribution of support. The
notice shall also advise the obligee of his or her right to disclosure
of records provided in this section in order to determine what records the bureau for child support enforcement may have. In the event of any
objection, the bureau shall determine whether or not the information
shall be released.
(5) Information in specific cases may be released as is necessary
or to determine the identity, location, employment, income and assets
of an obligor.
(6) Information and records may be disclosed to the bureau of
vital statistics, bureau of employment programs, the workers'
compensation division commission, state tax department and the internal
revenue service, or other state or federal agencies or departments as
may be that are necessary or desirable in obtaining any address,
employment, wage or benefit information for the purpose of determining
the amount of support or establishing, enforcing, collecting and
distributing support.
(b) Any person who willfully violates this section shall be is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
not less than one hundred dollars nor more than one thousand dollars,
or confined in the county or regional jail not more than six months,
or both fined and imprisoned confined.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 1B. INTERMEDIATE COURT OF APPEALS.
§51-1B-1. Intermediate court of appeals; jurisdiction; initial
appointment; salary.
(a) There is hereby created the West Virginia intermediate court
of appeals which shall consist of three judges, any two of whom
constitute a quorum.
(b) The intermediate court of appeals shall exercise exclusive
jurisdiction over all appeals from the workers' compensation office of
judges filed after the thirty-first day of December, two thousand
three, and over all matters transferred to it pursuant to section
eighteen, article five, chapter twenty-three of this code. The supreme
court of appeals may, in its discretion, transfer to the intermediate
court of appeals for consideration and decision in accordance with the
provisions of this article, any appeals filed with the supreme court
of appeals prior to the thirty-first day of December, two thousand three.
(c) The governor shall appoint, with the advice and consent of
the Senate, three qualified attorneys to serve five year terms as
judges of the intermediate court of appeals. No more than two of the
judges may be from the same political party.
(d) The initial appointees shall serve until confirmed by the
Senate. If the Senate does not confirm an appointee the governor shall
forthwith submit the name of another qualified appointee for
consideration by the Senate. The initial appointments shall be made
no later than the thirty-first day of December, two thousand three.
Should a vacancy occur, the governor shall, within thirty days of
vacation of the position, appoint a new judge to fill the unexpired
term.
(e) The salary of each of the judges of the intermediate court of
appeals is ninety-two thousand dollars per year.
§51-1B-2. Qualifications.
(a) A judge of the intermediate court of appeals must, at the
time he or she takes office, and thereafter during his or her
continuance in office, be a resident of this state, be a member in good
standing of the West Virginia state bar, have a minimum of ten years'
experience as an attorney admitted to practice law in this state prior
to appointment, and have a minimum of five years' experience in
preparing and presenting cases or hearing actions and making decisions
on the basis of the record of those hearings before administrative
agencies, regulatory bodies or courts of record at the federal, state
or local level.
(b) No judge of the intermediate court of appeals may hold any
other office, or accept any appointment or public trust, nor may he or
she become a candidate for any elective public office or nomination
thereto, except a judicial office. Violation of this subsection
requires the judge to vacate his or her office. No judge of an
intermediate court of appeals may engage in the practice of law during
his or her term of office.
§51-1B-3. Chief judge.
The court shall designate one of its judges in rotation to be chief judge of the court for as long as the court may determine by
order made and entered of record. In the absence of the chief judge,
any other judge designated by the judges present shall act as chief
judge.
§51-1B-4. Regular terms of court.
Two terms of the intermediate court of appeals shall be held
every year at Charleston, in Kanawha county, the first commencing on
the second Tuesday in January and ending on the thirty-first day of
July, the second on the first Wednesday in September and ending on the
fifteenth day of December. The intermediate court of appeals shall,
from time to time, hold hearings in other counties of the state as the
court finds appropriate.
§51-1B-5. Location.
The intermediate court of appeals shall be located in the same
facility as or in reasonable proximity, within the city of Charleston,
to the West Virginia supreme court of appeals.
§51-1B-6. Regulation of pleading, practice and procedure.
The supreme court of appeals shall make general rules regarding
the pleading, including the form of the petition and any responsive
pleadings, practice and procedure to be used by the intermediate court
of appeals.
§51-1B-7. Rejection, remand or allowance of appeal.
Upon its initial review of the petition, the intermediate court
of appeals may reject the appeal or allow the appeal to be heard. If
the petition is rejected by the intermediate court of appeals, no other
petition for appeal from the decision or order of the office of judges
shall be permitted. If the petition is granted, the court shall
immediately notify the petitioner, the respondents, the office of
judges and the workers' compensation commission of its decision and may
schedule the filing of written briefs and a time for hearing oral
arguments, if necessary, by the parties in accordance with the rules
of the court.
§51-1B-8. Decisions.
(a) In all cases before it, the intermediate court of appeals
shall consider the record, the legal briefs of the parties, and when the court considers it necessary, the oral arguments of the parties
prior to rendering a decision.
(b) The court may affirm or reverse the order or decision of the
office of judges or remand the case for further proceedings.
(c) Any decision reversing, remanding or affirming a decision of
the office of judges must set forth the reasons therefor, including the
court's findings of fact and the legal precedents and conclusions
supporting the decision.
§51-1B-9. Adjournment.
The court may, at any regular or special term, adjourn from day
to day or from time to time, as the court may order, until its close.
§51-1B-10. Clerk; deputy; other assistants and employees; compensation;
expenses.
The intermediate court of appeals, or the judges thereof in
vacation, may with the approval of the supreme court of appeals appoint
a clerk, who shall give bond as required by article two, chapter six
of this code. The intermediate court of appeals, or the judges thereof
in vacation, may with the approval of the supreme court of appeals
appoint one deputy clerk, and other full-time and part-time assistants
and clerical employees necessary to perform properly the functions and
duties of the office of the clerk. The annual compensation of the
clerk shall be fixed by the supreme court of appeals. The clerk and
other employees shall serve at the will and pleasure of the court.
Vacancies in the office of the clerk which occur during vacation may
be filled by appointment, in writing, made by a majority of the judges
of the court. The administrative and other operating expenses of the
intermediate court of appeals shall be determined and provided by the
supreme court of appeals.
§51-1B-11. Duties of clerk.
It is the duty of the clerk of the intermediate court of appeals
to attend in person, or by deputy, all the sessions of the court, to
obey its orders and directions during term and in vacation, to take
care of and preserve in an office, kept for the purpose, all records
and papers of the court, and to perform other duties as prescribed by
law or required of him or her by the court.
§51-1B-12. Appeals to the supreme court of appeals.
(a) Either party or the workers' compensation commission may file
a petition for an appeal from a final order of the intermediate court
of appeals with the supreme court of appeals within thirty days of the
entry of the order. This time limitation is a condition of the right
to appeal and, hence, jurisdictional, and unless the petition for
review is filed within the thirty-day period, no appeal or review shall
be allowed. The clerk of the supreme court of appeals shall notify
each of the respondents, the workers' compensation commission, and the
clerk of the intermediate court of appeals of the filing of the
petition. The clerk of the intermediate court of appeals shall, within
ten days after receipt of the notice, file the record, including all
the evidence, with the clerk of the supreme court of appeals. If a
review is granted to a nonresident of this state, he or she shall,
before the order or review becomes effective, execute and file with the
clerk of the supreme court of appeals a bond, with security to be
approved by the clerk, conditioned to perform any judgment which may
be awarded against him or her thereon. A petition for appeal shall be
filed in the office of the clerk of the supreme court of appeals in
accordance with the rules of appellate procedure.
(b) No petition for appeal to the supreme court of appeals shall
lie from a decision of the intermediate court of appeals rejecting the
petition pursuant to section seven of this article.
(c) In reviewing a decision of the intermediate court of appeals,
the supreme court of appeals shall consider the record provided by the
intermediate court of appeals. The decision of the intermediate court
of appeals may be reversed or modified by the supreme court of appeals
only if the lower court's findings of fact are not supported by any
evidence in the record or the decision is in clear violation of
constitutional or statutory provisions or clearly the result of
erroneous conclusions of law.
§51-1B-13. Termination of intermediate court of appeals.
(a) The intermediate court of appeals and the provisions of this
article shall be of no further force and effect after the thirty-first
day of December, two thousand eight.
(b) The termination of the provisions of this article as
specified in this section is intended to provide an opportunity to
evaluate the intermediate court of appeals, its structure and
operation, the advisability of requiring the election of its judges,
the desirability of expanding its jurisdiction, and other related
matters. The Legislature finds that it would be most beneficial, for
purposes of accomplishing this evaluation, to consider any report or
recommendations of the supreme court of appeals if available on or
before the thirty-first day of December, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-24e. Omission to subscribe to the workers' compensation fund;
failure to file a premium tax report or pay premium taxes; false
testimony or statements; failure to file reports; penalties; asset
forfeiture; venue.
(1) Failure to subscribe:
(A) Responsible person. Any person who individually or as owner,
partner, president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as a
person who is responsible for and who is required by specific
assignment, duty or legal duty, which is either expressed or inherent
in laws which require the employer's principals to be informed and to
know the facts and laws affecting the business organization and to make
internal policy and decisions which ensure that the individual and
organization comply with the general laws and provisions of chapter
twenty-three of this code, knowingly and willfully fails to subscribe
to the workers' compensation fund shall be guilty of a felony and, upon
conviction, shall be imprisoned in the penitentiary a state
correctional facility not less than one nor more than ten years, or in
the discretion of the court, be confined in a county or regional jail
not more than one year and shall be fined not more than two thousand
five hundred dollars.
(B) Any corporation, association or partnership who, as an
employer as defined in chapter twenty-three of this code, knowingly and willfully fails to subscribe to the workers' compensation fund shall
be guilty of a felony and, upon conviction, shall be fined not less
than two thousand five hundred dollars nor more than ten thousand
dollars.
(2) Failure to pay:
(A) Any person who individually or as owner, partner, president,
other officer or manager of a sole proprietorship, firm, partnership,
company, corporation or association, who, as a responsible person as
defined in section twenty-four-e of this article, knowingly and
willfully fails to make premium tax payments to the workers'
compensation fund as required by chapter twenty-three of this code,
shall be guilty of the larceny of the premium owed and, if the amount
is one thousand dollars or more, such person shall be guilty of a
felony and, upon conviction thereof, shall be imprisoned in the
penitentiary a state correctional facility not less than one nor more
than ten years or, in the discretion of the court, be confined in a
county or regional jail not more than one year and shall be fined not
more than two thousand five hundred dollars. If the amount is less
than one thousand dollars, such person shall be guilty of a misdemeanor
and, upon conviction thereof, shall be confined in a county or regional
jail for a term not to exceed one year or fined an amount not to exceed
two thousand five hundred dollars, or both, in the discretion of the
court.
(B) Any corporation, association, company or partnership which,
as an employer as defined in chapter twenty-three of this code,
knowingly and willfully fails to make premium tax payments to the
workers' compensation fund as required by chapter twenty-three of this
code shall be guilty of the larceny of the premium owed, and, if the
amount is one thousand dollars or more, such corporation, association,
company or partnership shall be guilty of a felony and, upon conviction
thereof, shall be fined not less than two thousand five hundred dollars
nor more than ten thousand dollars. If the amount is less than one
thousand dollars, such corporation, association, company or partnership
shall be guilty of a misdemeanor and, upon conviction thereof, shall
be fined an amount not to exceed two thousand five hundred dollars.
(C) Any person who individually or as owner, partner, president,
other officer, or manager of a sole proprietorship, firm, partnership,
company, corporation or association, who, as a responsible person, as
defined in section twenty-four-e of this article, knowingly and
willfully and with fraudulent intent sells, transfers or otherwise
disposes of substantially all of the employer's assets for the purpose
of evading the payment of workers' compensation premium taxes to the
workers' compensation fund as required by chapter twenty-three of this
code, shall be guilty of the larceny of the premium owed and, if the
amount is one thousand dollars or more, such person shall be guilty of
a felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than one nor more than ten years or, in
the discretion of the court, be confined in a county or regional jail
not more than one year and shall be fined not more than two thousand
five hundred dollars. If the amount is less than one thousand dollars,
such person shall be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for a term not
to exceed one year or fined an amount not to exceed two thousand five
hundred dollars, or both, in the discretion of the court.
(D) Any corporation, association, company or partnership which,
as an employer as defined in chapter twenty-three of this code,
knowingly and willfully and with fraudulent intent sells, transfers or
otherwise disposes of substantially all of the employer's assets for
the purpose of evading the payment of workers' compensation premium
taxes to the workers' compensation fund as required by chapter twenty-
three of this code shall be guilty of the larceny of the premium owed,
and, if the amount is one thousand dollars or more, such corporation,
association, company or partnership shall be guilty of a felony and,
upon conviction thereof, shall be fined not less than two thousand five
hundred dollars nor more than ten thousand dollars. If the amount is
less than one thousand dollars, such corporation, association, company
or partnership shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed two thousand five
hundred dollars.
(3) Failure to file premium tax reports:
(A) Any person who individually or as owner, partner, president,
other officer, or manager of a sole proprietorship, firm, partnership,
company, corporation or association, who, as a responsible person as
defined in section twenty-four-e of this article, knowingly and
willfully fails to file a premium tax report with the workers'
compensation fund as required by chapter twenty-three of this code,
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility not less
than one nor more than ten years, or in the discretion of the court,
be confined in a county or regional jail for a term not to exceed one
year and shall be fined not more than two thousand five hundred
dollars.
(B) Any corporation, association, company or partnership which,
as an employer as defined in chapter twenty-three of this code,
knowingly and willfully fails to file a premium tax report with the
workers' compensation fund as required by chapter twenty-three of this
code, shall be guilty of a felony and, upon conviction thereof, shall
be fined not less than two thousand five hundred dollars nor more than
ten thousand dollars.
(4) Failure to file other reports:
(A) Any person, individually or as owner, partner, president or
other officer, or manager of a sole proprietorship, firm, partnership,
company, corporation or association who, as a responsible person as
defined in section twenty-four-e of this article, knowingly and
willfully fails to file any report, other than a premium tax report,
required by such chapter shall be guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail for
a term not to exceed one year or fined an amount not to exceed two
thousand five hundred dollars, or both, in the discretion of the court.
(B) Any corporation, association, company or partnership which,
as an employer as defined in chapter twenty-three of this code,
knowingly and willfully fails to file any report, other than a premium
tax report, with the workers' compensation fund as required by chapter
twenty-three of this code, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed two thousand five hundred dollars.
(5) False testimony or statements:
Any person, individually or as owner, partner, president, other
officer, or manager of a sole proprietorship, firm, partnership,
company, corporation or association who, as a responsible person as
defined in section twenty-four-e of this article, knowingly and
willfully makes a false report or statement under oath, affidavit,
certification or by any other means respecting any information required
to be provided under chapter twenty-three of this code shall be guilty
of a felony and, upon conviction thereof, shall be confined in the
penitentiary a state correctional facility for a definite term of
imprisonment which is not less than one year nor more than three years
or fined not less than one thousand dollars nor more than ten thousand
dollars, or both, in the discretion of the court. In addition to any
other penalty imposed, the court shall order any defendant convicted
under this section to make full restitution of all moneys paid by or
due to the workers' compensation fund as the result of a violation of
this section. The restitution ordered shall constitute a judgment
against the defendant and in favor of the state of West Virginia
workers' compensation commission.
(6) Asset forfeiture:
(A) The court, in imposing sentence on a person or entity
convicted of an offense under this section, shall order the person or
entity to forfeit property, real or personal, that constitutes or is
derived, directly or indirectly, from gross proceeds traceable to the
commission of the offense. Any person or entity convicted under this
section shall pay the costs of asset forfeiture.
(B) For purposes of paragraph (6) (A), the term "payment of the
costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain,
inventory, safeguard, maintain, advertise, sell or dispose of property
under seizure, detention, forfeiture or of any other necessary expenses
incident to the seizure, detention, forfeiture, or disposal of such
property, including payment for:
(a)(I) Contract services;
(b)(II) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary to
dispose of such properties in an effort to maximize the return from
such properties; and
(c)(III) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph;
(ii) The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the discretion of
the workers' compensation fund to determine the validity of any such
lien or mortgage and the amount of payment to be made, and the
employment of attorneys and other personnel skilled in state real
estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on forfeited
real property that accrued between the date of the violation giving
rise to the forfeiture and the date of the forfeiture order.
(7) Venue:
Venue for prosecution of any violation of this section shall be
either the county in which the defendant's principal business
operations are located or in Kanawha County where the workers'
compensation fund is located.
§61-3-24f. Wrongfully seeking workers' compensation; false
testimony or statements; penalties; venue.
(1) Any person who shall knowingly and with fraudulent intent
secure or attempt to secure compensation from the workers' compensation
fund or from a self-insured employer:
(A) That is larger in amount than that to which he or she is
entitled; or
(B) That is longer in term than that to which he or she is
entitled; or
(C) To which he or she is not entitled, shall be guilty of a
larceny and, if the amount is one thousand dollars or more, such person
shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less
than one nor more than ten years or, in the discretion of the court,
be confined in a county or regional jail not more than one year and
shall be fined not more than two thousand five hundred dollars. If the
amount is less than one thousand dollars, such person shall be guilty
of a misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for a term not to exceed one year or fined an
amount not to exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(2) Any person who shall knowingly and willfully make a false
report or statement under oath, affidavit, certification or by any
other means respecting any information required to be provided under
chapter twenty-three of this code shall be guilty of a felony and, upon
conviction thereof, shall be confined in the penitentiary a state
correctional facility for a definite term of imprisonment which is not
less than one year nor more than three years or fined not less than one
thousand dollars nor more than ten thousand dollars, or both, in the
discretion of the court.
(3) In addition to any other penalty imposed, the court shall
order any person convicted under this section to make full restitution
of all moneys paid by the workers' compensation fund or self-insured
employer as the result of a violation of this section. The restitution
ordered shall constitute a judgment against the defendant and in favor
of the state of West Virginia workers' compensation commission or self-
insured employer.
(4) If the person so convicted is receiving compensation from
such fund or employer, he or she shall, from and after such conviction,
cease to receive such compensation as a result of that any alleged
injury or disease.
(5) Venue for prosecution of any violation of this section shall
either be the county in which the claimant resides, the county in which
the claimant is employed or working, or in Kanawha County where the
workers' compensation fund is located.
§61-3-24g. Workers' compensation health care offenses; fraud; theft
or embezzlement; false statements; penalties; notice; prohibition against providing future services; penalties; asset forfeiture;
venue.
(1) Any person who knowingly and willfully executes, or attempts
to execute, a scheme or artifice:
(A) To defraud the workers' compensation fund or a self-insured
employer in connection with the delivery of or payment for workers'
compensation health care benefits, items or services; or
(B) To obtain, by means of false or fraudulent pretenses,
representations, or promises any of the money or property owned by or
under the custody or control of the workers' compensation fund or a
self-insured employer in connection with the delivery of or payment for
workers' compensation health care benefits, items or services; or
(C) To make any charge or charges against any injured employee or
any other person, firm or corporation which would result in a total
charge for the treatment or service rendered in excess of the maximum
amount set forth therefore in the workers' compensation division's
commission's schedule of maximum reasonable amounts to be paid for such
the treatment or services issued pursuant to subsection (a), section
three, article four, chapter twenty-three of this code shall be is
guilty of a felony and, upon conviction thereof, shall be imprisoned
in the penitentiary a state correctional facility not less than one
year nor more than ten years or, in the discretion of the court, be
confined in a county or regional jail not more than one year and shall
be fined not more than two thousand five hundred dollars.
(2) Any person who, in any matter involving a health care program
related to the workers' compensation fund, knowingly and willfully:
(A) Falsifies, conceals or covers up by any trick, scheme or
device a material fact; or
(B) Makes any materially false, fictitious or fraudulent
statement or representation, or makes or uses any materially false
writing or document knowing the same to contain any materially false,
fictitious or fraudulent statement or entry, shall be is guilty of a
felony and, upon conviction thereof, shall be confined in the
penitentiary a state correctional facility for a definite term of
imprisonment which is not less than one year nor more than three years or fined not less than one thousand dollars nor more than ten thousand
dollars, or both, in the discretion of the court.
(3) Any person who willfully embezzles, steals or otherwise
unlawfully converts to the use of any person other than the rightful
owner, or intentionally misapplies any of the moneys, funds,
securities, premiums, credits, property or other assets of a health
care program related to the workers' compensation fund, shall be is
guilty of a felony and, upon conviction thereof, shall be imprisoned
in the penitentiary a state correctional facility for not less than one
year nor more than ten years or fined not less than ten thousand
dollars, or both, in the discretion of the court.
(4) Any health care provider who fails, in violation of
subsection subdivision (5) of this section to post a notice, in the
form required by the workers' compensation division commission, in the
provider's public waiting area that the provider cannot accept any
patient whose treatment or other services or supplies would ordinarily
be paid for from the workers' compensation fund or by a self-insured
employer unless such the patient consents, in writing, prior to the
provision of such the treatment or other services or supplies, to make
payment for that treatment or other services or supplies himself or
herself, shall be is guilty of a misdemeanor and, upon conviction
thereof, shall be fined one thousand dollars.
(5) Any person convicted under the provisions of this section
shall, from and after such conviction, be barred from providing future
services or supplies to injured employees for the purposes of workers'
compensation and shall cease to receive payment for such services or
supplies. In addition to any other penalty imposed, the court shall
order any defendant convicted under this section to make full
restitution of all moneys paid by or due to the workers' compensation
fund as the result of a violation of this section. The restitution
ordered shall constitute a judgment against the defendant and in favor
of the state of West Virginia workers' compensation commission.
(6)(A) The court, in imposing sentence on a person convicted of
an offense under this section, shall order the person to forfeit
property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the
offense. Any person convicted under this section shall pay the costs
of asset forfeiture.
(B) For purposes of paragraph (6)(A) of this section subdivision,
the term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain,
inventory, safeguard, maintain, advertise, sell or dispose of property
under seizure, detention or forfeiture, or of any other necessary
expenses incident to the seizure, detention, forfeiture or disposal of
such the property, including payment for:
(a)(I) Contract services;
(b)(II) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary to
dispose of such the properties in an effort to maximize the return from
such the properties; and
(c)(III) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph;
(ii) The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the discretion of
the workers' compensation fund to determine the validity of any such
the lien or mortgage and the amount of payment to be made, and the
employment of attorneys and other personnel skilled in state real
estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on forfeited
real property that accrued between the date of the violation giving
rise to the forfeiture and the date of the forfeiture order.
(7) Venue for prosecution of any violation of this subsection
section shall be either the county in which the defendant's principal
business operations are located or in Kanawha County where the workers'
compensation fund is located.