A BILL to repeal section seven-b, article four, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to repeal section fourteen, article five of said chapter; to amend and reenact section seventeen, article ten, chapter five of said code; 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 sections one and five, article two, chapter five-f of said code; to amend and reenact section two-a, article seven, chapter six of said code; to amend and reenact section seven, article twelve, chapter eleven of said code; 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 sections one through seven, inclusive, article three 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, one-g and four-a; to amend and reenact sections one, one-c, one-d, two, three, four, five, 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 a new section, designated section one-b; to amend and reenact sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-c, four, six, six-a, six-b, six-d, seven, seven-a, 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, seven and eight, article four-a of said chapter; to amend and reenact sections two, five, six, seven, eight and eight-a, article four-b of said chapter; 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; to amend and reenact sections one and two, article five-a of said chapter; 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; and to amend and reenact section twenty-four-g, article three, chapter sixty-one of said code, all relating to workers' compensation generally; repealing provisions relating to trial return to work; repealing provisions relating to disqualification of workers' compensation appeal board members; removing workers' compensation from the bureau of employment programs; creating workers' compensation commission as an independent agency assuming all duties of division; transferring workers' compensation office of judges and the appeal board to department of administration; establishing salaries for members and the chief judge of the workers' compensation appeal board; changing the name of the compensation programs performance council to the state advisory council for the bureau of employment programs; transferring certain powers of the compensation programs performance council to the bureau of employment programs and the state advisory council; requiring rules to be filed as legislative rules; clarifying terms of state advisory council members; precluding political candidates, political party officer or office-holders from sitting on the state advisory council; establishing compensation for advisory council members and limiting number of days per year for which an advisory council member may be compensated; reporting requirements for employers; creating the board of managers; establishing composition of board; establishing qualifications for membership; establishing appointment procedures for members; setting forth the powers and duties of board; providing for payment withholding and interception of moneys of certain employers to ensure compliance with unemployment and workers' compensation laws; providing penalties for failure to withhold or intercept payments; authorizing interagency agreements between bureau of employment programs and workers' compensation commission; creating the board of managers nominating committee and setting forth its composition and responsibilities; adopting workers' compensation rules by commission; continuing workers' compensation division until the first day of July, two thousand three; requiring commission to report to the commission on economic development; providing for salaries and expenses; requiring performance bonds under certain circumstances; providing for associate director to assume authority in absence of executive director; authorizing the executive director to hire certain administrative, managerial and supervisory employees; authorizing certain commission employees to administer oaths; providing for issuance and enforcement of agency subpoenas; establishing fees; defining employer; allowing specified groups of employers to self insure their obligations to the commission; authorizing self-insured employers to administer claims; requiring self- insured employers to comply with the law and commission rules; authorizing the commission to determine the full accrued value of a defaulting self- insured employer based on generally accepted actuarial and accounting principles; setting forth powers and duties of the executive director to regulate self-insured employers; establishing penalties for self-insured employers and third-party administrators for violations of this chapter; prohibiting self-insured employers from contracting with third-party administrators who have not been approved by the commission; allowing for subrogation and making it effective for claims arising from a cause of action which arose or accrued after the effective date of this legislation; eliminating the second injury fund; creating deficit elimination fund; granting custody of fund to the state treasurer; requiring investment of deficit reduction fund; providing funding for deficit elimination through joint employer and employee payroll tax; requiring the commission to promulgate rules for operation of the fund; authorizing investment management board to invest surplus moneys to fund; reporting requirements of self-insurers; requiring commission to make a decision on compensability of a claim within fifteen days; prohibiting a claimant from receiving both temporary total disability benefits and certain other employer-provided short-term disability benefits; requiring award of permanent partial disability benefits be made as expeditiously as possible; providing for weighing of evidence and application of rule of liberality; providing that vendors must submit bills for services within one year of provision of the service; authorizing employers to create physician panels; requiring injured employees to chose a physician from the panel; creating an exception for emergency treatment; allowing injured employees to choose physician if employer protest compensability of claim; reducing maximum weekly benefit for temporary total disability to sixty- six and two-thirds percent of the average weekly wage of the employee; increasing to fifty percent the percentage of whole body impairment which establishes a rebuttable presumption of permanent total disability; providing that permanent total disability benefits are subject to old age social security offsets for claimants injured on or after the first day of July, two thousand three; reducing permanent partial disability benefits to seventy percent of the average weekly wage of the claimant not to exceed sixty-six and two-thirds percent of the average weekly wage in West Virginia; providing that reductions in benefit rates affect claimants injured on or after the first day of July, two thousand three; requiring the executive director to promulgate a rule to establish requirements for an application for permanent total disability benefits; providing that upon adoption of the rule on application requirements no claim for permanent total disability benefits may be sent to the interdisciplinary examining board without an application; providing for the establishment of an onset date for permanent total disability benefits as of the date of application; providing that a claimant must have been awarded fifty percent permanent partial disability prior to applying for permanent total disability; creating a definition of permanent total disability; eliminating the five-percent presumptive award of occupational pneumoconiosis without measurable impairment; increasing vocational rehabilitation services; providing that the commission may suspend benefits to a claimant for refusing, without good cause, to be examined by a physician; removing certain office-set provisions; removing mediation provisions; authorizing appointment of chief administrative law judge by secretary of department of administration; continuing the incumbent; providing for removal only for specified misconduct; providing that the commission must fund the office of judges and the appeals board; allowing office of judges to promulgate procedural rules; providing for appeal of office of judges' decision to the appeals board; providing for appeals of compensability as matter of right, all other appeals within discretion of board; establishing time frames for appeals; establishing standards for appeal; creating full-time three judge appeal board; providing for appointment by the governor for staggered six-year terms; authorizing board to develop rules of procedure; establishing qualifications of judges; requiring monthly reports to the board of managers; providing for remand of cases; providing for appeals from the board to the West Virginia supreme court of appeals; continuing the board; and making technical corrections and removing archaic language throughout.

Be it enacted by the Legislature of West Virginia:
That

§5-10-17. Retirement system membership.
The membership of the retirement system consists of the following persons:
(a) All employees, as defined in section two of this article, who are in the employ of a political subdivision the day preceding the date it becomes a participating public employer and who continue in the employ of the participating public employer on and after that date shall become members of the retirement system; and all persons who become employees of a participating public employer on or after that date shall thereupon become members of the system; except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the retirement system shall not include any person who is a member of, or who has been retired by, any of the state teachers retirement systems, the judges retirement system, the retirement system of the division of public safety, the deputy sheriff retirement system or any municipal retirement system for either, or both, policemen or firemen; and the bureau of employment programs, by the commissioner of the bureau, and the workers' compensation commission, by the executive director, may elect whether its employees will accept coverage under this article or be covered under the authorization of a separate enactment: Provided, That the exclusions of membership shall not apply to any member of the state Legislature, the clerk of the House of Delegates, the clerk of the state Senate or to any member of the legislative body of any political subdivision provided he or she once becomes a contributing member of the retirement system: Provided, however, That any retired member of the retirement system of the division of public safety, the deputy sheriff retirement system and any retired member of any municipal retirement system for either, or both, policemen or firemen may on and after the effective date of this section become a member of the retirement system as provided in this article, without receiving credit for prior service as a municipal policeman or fireman or as a member of the division of public safety or of the deputy sheriff retirement system: Provided further, That the membership of the retirement system does not include any person who becomes employed by the Prestera center for mental health services, valley comprehensive mental health center, Westbrook health services or eastern panhandle mental health center on or after the first day of July, one thousand nine hundred ninety-seven: And provided further, That membership of the retirement system does not include any person who becomes a member of the federal railroad retirement act on or after the first day of July, two thousand.
(c) Any member of the state Legislature, the clerk of the House of Delegates, the clerk of the state Senate and any employee of the state Legislature whose employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is so employed during regular sessions or during the interim between sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, or any member of the legislative body of any other political subdivision shall become a member of the retirement system provided he or she notifies the retirement system in writing of his or her intention to be a member of the system and files a membership enrollment form as prescribed by the board of trustees, and each person, upon filing his or her written notice to participate in the retirement system, shall by that act authorize the clerk of the House of Delegates or the clerk of the state Senate or such person or legislative agency as the legislative body of any other political subdivision shall designate to deduct the member's contribution, as provided in subsection (b), section twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be forwarded to the retirement system.
(d) If question arises regarding the membership status of any employee, the board of trustees has the final power to decide the question.
(e) Any individual who is a leased employee is not eligible to participate in the system. For the purposes of this article, the term "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final authority to decide the question.

§5A-3-33d. Grounds for debarment.
Grounds for debarment are:
(a) Conviction of an offense involving fraud or a felony offense in connection with obtaining or attempting to obtain a public contract or subcontract.
(b) Conviction of any federal or state antitrust statute relating to the submission of offers.
(c) 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) 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) 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) 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.
(g) Violation of the terms of a public contract or subcontract for:
(1) Willful failure to substantially perform in accordance with the terms of one or more public contracts;
(2) 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) 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) A repeated pattern or practice of failure to perform so serious and compelling as to justify debarment; or
(5) 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.

§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 ruleand make recommendations concerning such rules to the Legislature.
(b) The development office and the tourism commission established pursuant to article two, 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, chapter five-b, 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. 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 chapter twenty-nine-a of this code.

§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 local areas are consistent with labor market areas;
(D) The distance that individuals will need to travel to receive services provided in such local areas; and
(E) The resources of such 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, 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, the workforce investment commission established pursuant to article two-c, chapter five-b, 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 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.
(12) Workers compensation appeals board and office of judges provided for in article five, chapter twenty-three 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.;
(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 decision makers 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.

§5F-2-5. Independent appeal boards.

(a) The Legislature finds and declares that it may be desirable and appropriate for certain boards and commissions created by the Legislature which may be called upon to review, adjudicate or reverse administrative actions and decisions of agencies of the state to be fiscally and functionally independent of the agency or agencies reviewed, to issue rules and manage day-to-day operations independently, and to function as independent and autonomous instrumentalities of the state.
(b) To achieve this purpose, the governor may by executive order provide for the transfer from the departments and agencies of the state of any or all of the following boards or commissions which are appellate bodies or were otherwise established to be independent decisionmakers:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Workers compensation appeals board and office of judges provided for in article five, chapter twenty-three of this code;
(3) (2) Air quality board provided for in article two, chapter twenty-two-b of this code;
(4) (3) Environmental quality board provided for in article three, chapter twenty-two-b of this code;
(5) (4) Surface mine board provided for in article four, chapter twenty-two-b of this code;
(6) (5) Board of appeals provided for in article five, chapter twenty-two-a of this code; and
(7) Shallow gas well review board provided for in article eight, chapter twenty-two-c of this code.
(c) Upon any transfer by executive action authorized in subsection (b) of this section, the governor may provide for administrative support by a department or agency of the state to the board or commission transferred in the same manner as is provided by a department secretary and for liaison with the office of the governor with respect to budgetary and administrative matters through a department or agency of the state:

That nothing in this section shall be construed to affect the existence, powers, authority and duties of independent boards and commissions or the membership, terms and qualifications of members of such the boards and commissions.
(d) The authority to make transfers as provided in subsection (a) of this section shall expire on the first day of January, one thousand nine hundred ninety-five. Upon the exercise of the powers granted in subsection (b) of this section, the governor shall submit to the Legislature a report setting forth the reorganization implemented by executive action pursuant to this section, any recommendations for further reorganization requiring legislative action and drafts of any recommended legislation for consideration by the Legislature during the regular session in the year one thousand nine hundred ninety-five to conform this code to the reorganization implemented by executive action.
(e) Upon transfers as authorized in subsection (a) of this section, the governor may transfer the funds appropriated to the department or agency of the state attributable to the functions of the board or commission transferred in order to implement the transfer:

That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other dedicated account or fund for any use or purpose other than the purpose for which the account or fund is dedicated.
(f) Nothing in this section shall be construed to affect the consolidation of legal, technical and support personnel and of procedures of the air quality board, environmental quality board and surface mining board provided for in article one, chapter twenty-two-b of this code.

CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS

ARTICLE 7. COMPENSATION AND ALLOWANCES.

§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and salaries of officers.

(a) Each of the following appointive state officers named in this subsection shall be appointed by the governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the governor for the term for which the governor was elected and until the respective state officers' successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.
Prior to the first day of July, two thousand three, each named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in two thousand one, and thereafter, notwithstanding any other provision of this code to the contrary, the annual salary of each named appointive state officer shall be as follows:
Administrator, division of highways, ninety thousand dollars; administrator, state tax division, sixty-five thousand dollars; administrator, division of corrections, seventy-five thousand dollars; administrator, division of natural resources, seventy thousand dollars; superintendent, state police, seventy-five thousand dollars; administrator, lottery division, seventy-five thousand dollars; director, public employees insurance agency, seventy-five thousand dollars; administrator, division of banking, sixty thousand dollars; administrator, division of insurance, sixty thousand dollars; administrator, division of culture and history, fifty-five thousand dollars; administrator, alcohol beverage control commission, seventy thousand dollars; administrator, division of motor vehicles, seventy thousand dollars; director, division of personnel, fifty-five thousand dollars; adjutant general, seventy-five thousand dollars; chairman, health care authority, seventy thousand dollars; members, health care authority, sixty thousand dollars; director, human rights commission, forty-five thousand dollars; administrator, division of labor, sixty thousand dollars; administrator, division of veterans' affairs, forty-five thousand dollars; administrator, division of emergency services, forty-five thousand dollars; members, board of parole, forty-five thousand dollars; members, employment security review board, seventeen thousand dollars; chief judge, workers' compensation appeal board, seventy thousand dollars; members, workers' compensation appeal board, seventeen thousand eight hundred dollars sixty thousand dollars; administrator, bureau of employment programs, seventy thousand dollars; administrator, bureau of commerce, seventy thousand dollars; administrator, bureau of environment, seventy thousand dollars; and director, office of miner's health, safety and training, sixty-five thousand dollars. Secretaries of the departments shall be paid an annual salary as follows: Health and human resources, ninety thousand dollars; transportation, seventy-five thousand dollars; tax and revenue, seventy-five thousand dollars; military affairs and public safety, seventy-five thousand dollars; administration, seventy-five thousand dollars; education and the arts, seventy-five thousand dollars; and environmental protection, seventy-five thousand dollars.
(b) Each of the state officers named in this subsection shall continue to be appointed in the manner prescribed in this code and, prior to the first day of July, two thousand two, each of the state officers named in this subsection shall continue to receive the annual salaries he or she was receiving as of the effective date of the enactment of this section in two thousand two, and shall thereafter, notwithstanding any other provision of this code to the contrary, be paid an annual salary as follows:
Administrator, division of risk and insurance management, fifty-five thousand dollars; director, division of rehabilitation services, sixty thousand dollars; executive director, educational broadcasting authority, sixty thousand dollars; secretary, library commission, sixty-seven thousand dollars; director, geological and economic survey, fifty-two thousand five hundred dollars; executive director, prosecuting attorneys institute, sixty thousand dollars; executive director, public defender services, sixty thousand dollars; commissioner, bureau of senior services, seventy thousand dollars; director, state rail authority, fifty-five thousand dollars; executive secretary, women's commission, thirty-one thousand dollars; director, hospital finance authority, twenty-six thousand dollars; member, racing commission, twelve thousand dollars; chairman, public service commission, seventy thousand dollars; and members, public service commission, seventy thousand dollars.
(c) No increase in the salary of any appointive state officer pursuant to this section shall be paid until and unless the appointive state officer has first filed with the state auditor and the legislative auditor a sworn statement, on a form to be prescribed by the attorney general, certifying that his or her spending unit is in compliance with any general law providing for a salary increase for his or her employees. The attorney general shall prepare and distribute the form to the affected spending units.

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 issued under the provisions of section four of this article shall keep such certificate posted in a conspicuous position in the place where the privilege of such business is exercised. Such 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 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; and any person claiming that any business certificate is not due, for any reason, shall pay the same 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 business certificate, the circuit court or the judge thereof in vacation, of the county in which such 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 person from continuing such business, activity or trade until he has fully complied with the provisions of this article. The remedy provided in this section shall be 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, pursuant to subsection (b), section six-b, article two, chapter twenty-one-a 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 registration program for persons engaging in business in this state. Such other departments and agencies shall have authority to enter into a reciprocal exchange agreement for this purpose notwithstanding any provision of this code to the contrary.

§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 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.

§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 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.

§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 authorized for use by members of the state police, and shall provide for periodic inspection of such weapons and equipment. He 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 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 shall also provide the standard uniforms for all members of the state police, for officers, noncommissioned officers and troopers herein provided for. All uniforms and all arms, weapons and other property furnished the members of the state police by the state of West Virginia shall be and remain the property of the state.
(d) The superintendent is authorized to 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 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 member while engaged in the performance of duty and from causes beyond control of such members. Notwithstanding any other provision of this code, the superintendent shall have 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 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 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 places in West Virginia as are in his 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 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.

§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 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 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.

§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 commission 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.

§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.

§18-10K-2. Board created, membership, terms, officers and staff.
(a) There is 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.

§21-3A-3. Division of occupational safety and health; coordination of activities with workers' compensation commissioner.

(a) There is hereby created in the labor department a division of occupational safety and health, comprised of a subdivision for safety, a subdivision for health and such 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 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 other divisions or units as the commissioner determines to be 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 subsection (d) (11) and subsection (d) (12), 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 shall hereby be designated as the bureau of employment programs, which the bureau shall be administered as part of the department of commerce, labor and environmental resources created pursuant to subsection (b), section one two, article two, chapter five-f of this code.

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 rules;
(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 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 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 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 state advisory 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 state advisory 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 state advisory 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 the 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 the attorney's regular salary. Any attorneys' fees awarded for such an employed attorney shall be payable to the commissioner;
(18) With the approval of the compensation programs performance state advisory council created pursuant to section one, article three of this chapter, to promulgate 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.
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, 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.
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 unemployment 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 January, two thousand four to reflect the elimination of the workers' compensation division from the bureau of employment programs and its replacement by the workers' compensation commission; and
(19) 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
(20) Enter into interagency agency agreements to assist in exchanging information and fulfilling the default provisions of this section.
§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 inter-agency agreement to effectuate 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 3. ADVISORY COUNCIL.
§21A-3-1. Creation of advisory council; purpose.
There is hereby created within the bureau of employment programs a "compensation programs performance council" "state advisory council". The purpose of said the council shall be is to ensure the effective, efficient and financially stable operation of the unemployment compensation system and the workers' compensation system of the state of West Virginia.
§21A-3-2. Appointment of members.
The members of the council shall be appointed by the governor by and with the advice and consent of the Senate.
§21A-3-3. Membership; terms; chair.
The compensation programs performance state advisory council shall consist of nine members: Four representing the interests of employees; four representing the interests of employers; and the commissioner of the bureau of employment programs. The term of each member except the commissioner shall be for six years. The term of the commissioner shall continue for that period in which he or she holds that office. The terms of all the initially appointed members of the council shall begin on the first day of July, one thousand nine hundred ninety-three two thousand three. The initially appointed members shall serve until confirmed or rejected by the Senate. Of the persons initially appointed, four members, including two members of each of the two representative groups, shall be designated to serve for terms of two years each, two members, including one member of each of the two representative groups, shall be designated to serve for terms of four years each, and two members, including one member of each of the two representative groups shall be designated to serve for terms of six years each. As these appointments expire, subsequent appointments shall be for six- year terms. The commissioner shall serve as chair of the council and shall be entitled to vote on all matters. The council shall elect from its members a vice chair.

§21A-3-4. Qualifications; selection by governor; disqualification.

(a)Members of the council shall be selected with special reference to their ability and fitness to effectuate the purposes of this chapter and chapter twenty-three of this code. In appointing members of this council to represent the interests of employees, the governor shall select members as follows: One member shall be appointed from a list of at least three names submitted to the governor by the united mine workers of America; Two members shall be appointed from a list of at least six names submitted to the governor by the West Virginia labor federation, with one representing construction trades and one representing industrial workers; and One one member selected by the governor to represent the general interests of employees covered under the provisions of this chapter and chapter twenty-three of this code. In appointing members of this council to represent the interests of employers, the governor shall select members as follows: One one member shall be appointed from a list of at least three names submitted to the governor by the West Virginia coal industry; One one member shall be appointed from a list of at least three names submitted to the governor by the West Virginia manufacturers association; One one member shall be appointed from a list of at least three names submitted to the governor by the West Virginia chamber of commerce; and One one member selected by the governor to represent the general interests of employers covered under the provisions of this chapter and chapter twenty-three of this code. The governor shall ensure that employer representation includes a representative of small businesses employing fifty or less employees on a regular basis.
(b)A member shall not be a candidate for, or hold, any other public office or trust, nor shall he or she be a member of any political committee. If a member becomes a candidate for, or is appointed to, any other public office or political committee, his or her office as a member of the council shall automatically be vacated.
§21A-3-5. Compensation and travel expenses; insurance.
Members of the council shall receive reasonable compensation of two hundred dollars for each day actually served in attendance at meetings of the council and such traveling travel expenses as are incurred in the performance of his or her duties in accordance with appropriate state travel guidelines promulgated by the department of administration. Members shall not be compensated for more than thirty days' service in any year. Payment for traveling travel expenses shall be made consistent with state law department of administration travel guidelines. Each member of this the council shall be provided appropriate liability insurance, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
§21A-3-6. Meetings; quorum.
The council shall hold meetings at any time at the call of the commissioner. The commissioner shall call a meeting whenever three of the other members of the council request the commissioner to do so. The exact date and time of each meeting shall be determined by the commissioner. A majority of the members of the council shall constitute a quorum for the conduct of council business and, except as stated in subdivision (m), section seven of this article, all issues shall be resolved by a majority vote of the total membership.
§21A-3-7. Powers and duties.
The council shall have the following powers and duties:
(a) Assist the governor and the commissioner in the development of overall administrative policy for the unemployment compensation and workers' compensation systems of the state bureau of employment programs.
(b) Recommend legislation and establish regulations rules designed to ensure the effective administration and financial viability of the unemployment compensation system and the workers' compensation system of West Virginia.
(c) Review and approve, reject or modify rules and regulations that are proposed or promulgated by the commissioner for operation of the workers' compensation system before the filing of the rules and regulations with the secretary of state. This provision is applicable to any instance under chapter twenty-three of this code which authorizes the commissioner to promulgate rules and regulations. Notwithstanding any provision in this code to the contrary, including sections one and two, article three, and section three, article seven, both of chapter twenty-nine of said code, any rules and regulations adopted pursuant to this section which are applicable to the provisions of chapter twenty-three of this code shall not be subject to sections nine through sixteen, all of article three, chapter twenty-nine-a of this code. The commissioner and the compensation programs performance council shall follow the remaining provisions of said article for giving notice to the public of their actions and the holding of hearings or receiving of comments on the rules. No later amendment to this code shall have precedence over this section unless such later amendment specifically provides to the contrary.
(d) (c) In accordance with the laws, rules and regulations of West Virginia and the United States government, establish and monitor performance measurements to ensure the timeliness and accuracy of activities performed under the unemployment compensation laws and the workers' compensation laws.
(e) Have the final right of approval of all base rates for employers covered by the workers' compensation law as recommended by the commissioner.
(f) (d) Advocate sufficient administrative resources to effectively operate the unemployment compensation system and the workers' compensation system of West Virginia.
(g) Approve the designation of health care providers to make decisions regarding appropriateness of medical services pursuant to subsection (d), section one, article five, chapter twenty-three of this code.
(h) (e) Ensure that the unemployment compensation system and the workers' compensation system bureau of employment programs of West Virginia develop develops and pursue pursues an effective program of outreach and communication to employers, workers and others involved in these its programs.
(i) (f) Analyze opportunities to affect efficiencies and improvements for employers and workers by developing common definitions, interrelated systems and other internal operational improvements, including long-range planning for improvements.
(j) (g) Develop programs, linkages in the public sector and the private sector, and information materials designed to promote the early return to work of individuals receiving unemployment compensation benefits or workers' compensation benefits.
(k) Examine the current design and report recommendations to the governor and the Legislature regarding the second injury reserve of the surplus fund and the financial viability of the state's workers' compensation system.
(l) (h) Consider such other matters regarding the unemployment compensation system or the workers' compensation system as the commissioner or any appointed member of the council may desire.
(m) On or before the first day of September, one thousand nine hundred ninety- three, establish vocational standards to be considered in making decisions on permanent total disability awards under subdivision (n), section six, article four, chapter twenty-three of this code: Provided, That the compensation programs performance council is expressly authorized to establish this standard irrespective of court decisions interpreting any previous enactment of said subdivision: Provided, however, That adoption of said vocational standard shall require an affirmative vote of two thirds of the members of said compensation programs performance council.
(n) Adopt criteria for the determination and standards for the payment of attorneys' fees pursuant to subdivision (2), subsection (c), section sixteen, article four, chapter twenty-three of this code.
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 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 amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter; and
(4) Other information as 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.
(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.

§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 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 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 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 to have commenced surface-mining operations at such 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 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 unemployment compensation fund or the to the workers' compensation fund, the payment of premiums to the fund, the timely filing of payroll reports and the maintenance of an adequate premium deposit. 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 considered to indicate the applicant is in compliance and such 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 of this code and provide proof of compliance to the director on an annual basis.

CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created.
(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.
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. It shall be composed of a board of managers, an executive director who serves as the chairperson of the board of managers, an associate director, the office of judges, and other sections as the executive director and board of managers determine to be necessary. 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 imposed upon the workers' compensation commission and its executive directorin the manner prescribed by this chapter.

§23-1-1a. Board of managers; appointment; composition; qualifications; terms; meetings and quorum; compensation and travel expenses; powers and duties.

(a) The members of the board of managers shall be appointed by the governor, with the advice and consent of the Senate, from a list of three candidates submitted by the nominating committee for each of the eight board positions: Provided, That no appointed member shall be a candidate for or hold elected office. The initial appointees shall serve in their capacity as members of the board pending Senate action. If a candidate for board member is not confirmed by the Senate, a new candidate shall be selected in accordance with the provisions of section one-a and one-d of this article.
(b) The board of managers will be composed of the following members, each of whom will be nominated with special reference to his or her demonstrated knowledge and experience to effectively accomplish the purposes of this chapter:
(1) One who, on account of his or her vocation, employment, or affiliations, can be classed as representative of the interests of employees;
(2) One who, on account of his or her vocation, employment, or affiliations, can be classed as representative of the interests of employers;
(3) One who, on account of his or her vocation, employment, or affiliations, can be classed as representative of the interests of vocational rehabilitation with demonstrated experience within the West Virginia workers' compensation system;
(4) A medical doctor, licensed in West Virginia, who by experience, board certification, or university affiliation, has demonstrated expertise in occupational medicine within the context of the West Virginia workers' compensation system;
(5) Four members with demonstrated knowledge and experience in the area of workers' compensation, claims administration, public administration, administrative law, accounting, investments, finance, work place safety or insurance administration.
(c) Of the initial appointments made to the board of managers, the employee and employer representatives will serve one year each, the vocational and medical representatives will serve two years each, two members of the remaining four will serve three years each, and two will serve four years each. Thereafter, as each term expires, the vacancy so created shall be filled by an appointee for a term of four years. Members may be reappointed for no more than two consecutive terms. Appointments to fill the unexpired term of a member shall be for the remainder of the term.
(d) Members of the board of managers may only be removed by the governor for good cause shown.
(e) The board of managers shall hold meetings at the request of the executive director or at the request of at least three of the members of the board of managers, but no less frequently than once every three months. The executive director shall determine the date and time of each meeting. A majority of the board of managers shall constitute a quorum for the conduct of the business of the board of managers, and all issues shall be resolved by a majority vote of the total membership of the board. The executive director shall call an organizational meeting within thirty days of the initial appointment of the full board of managers at which time the board shall adopt bylaws governing its operation.
(f) Notwithstanding the provisions of article seven, chapter six of this code, the board of managers shall establish the salary of the executive director, at a minimum of one hundred twenty thousand dollars, not to exceed one hundred eighty thousand dollars. The maximum salary may be adjusted by the board in accordance with generally accepted annual inflation indices. 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.
(g) In addition to actual travel expenses incurred in the performance of his or her duties, each member of the board of managers shall receive annual compensation that is calculated by multiplying the percentage of total board meetings attended by the member in the calendar year by twelve thousand dollars.
(h) Each member of the board shall be provided appropriate liability insurance, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
(i) The board of managers shall have the following powers and duties:
(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) Upon recommendation of 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 filing of the rules with the secretary of state. This provision is applicable to any instance under this chapter which authorizes the executive director to propose rules. Notwithstanding any provision in this code to the contrary, including sections one and two, article three, and section three, article seven, chapter twenty-nine-a of this code, any rules adopted pursuant to this section which are applicable to the provisions of this chapter shall not be subject to sections nine through sixteen, article three, chapter twenty-nine-a of this code. The executive director and board of managers shall follow the remaining provisions of chapter twenty-nine-a of this code for giving notice to the public of their actions and the holding of hearings or receiving of comments on the rules. No later amendment to this code shall have precedence over this section unless the later amendment specifically provides to the contrary.
(4) In accordance with the laws, rules and regulations of West Virginia and the United States government, establish and monitor performance measurements to ensure the timeliness and accuracy of activities performed under the workers' compensation laws 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, rate revisions, 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 audits and actuarial reviews of the commission. The executive director shall provide access to records of the commission to facilitate the review required under this section.
(7) Approve the allocation of sufficient administrative resources and funding to efficiently operate the workers' compensation system of West Virginia.
(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) Approve the designation of health care providers to make decisions regarding appropriateness of medical services pursuant to subsection (d), section one, article five of this chapter.
(10) Ensure that the workers' compensation commission develops and pursues an effective program of outreach and communication to employers, workers, and others participating in this system.
(11) Develop programs, linkages in the public sector and the private sector, and information materials designed to promote the early return to work of individuals receiving workers' compensation benefits.
(12) Consider other matters regarding the workers' compensation system as the governor, executive director or any other appointed member of the board of managers 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 permanent total disability awards. The standards should be established as an effective means to accomplish the intent of subdivision (n), section six, article four of this chapter.
(14) Adopt criteria for the determination of and standards for the payment of attorneys' fees pursuant to any provision of this chapter authorizing payment of attorneys' fees.
(15) Appoint a temporary executive director for a period not greater than six months.
(16) 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 shall be exempt from the salary schedule or pay plan adopted by the division of personnel.

§23-1-1b. Executive director; chairperson of the board of managers; qualifications; oath; seal; removal; powers and duties.

(a) The executive director shall serve as the chairperson of the board of managers and shall be appointed by the board of managers from a list of three candidates submitted by the nominating committee. The position of executive director shall be full-time employment. Candidates for the position of executive director shall be considered based on their demonstrated experience and knowledge in the areas of workers' compensation management, insurance management, administrative experience within an organization comparable in size to the workers' compensation commission, or other such 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 article four, section five 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 such other design as the board of managers may prescribe. 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 shall be equal to the original in evidence.
(e) The executive director shall not be a voting member of the board of managers except in the event that the vote of the board of managers has resulted in a tie: Provided, That under no circumstances shall the executive director vote on his or her compensation, removal, or any other matter affecting the terms and conditions of his or her employment.
(f) The executive director will serve until removed by a three-fourths vote of the full board of managers, and only for good cause shown.
(g) The executive director shall have overall management responsibility and administrative control and supervision within the workers' compensation commission and shall have 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 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;
(3) Reorganize the work of the commission, its sections, departments, and offices to the extent necessary to achieve the most efficient performance of its functions, and to that end may establish, change or abolish positions and assign and reassign duties and responsibilities of every employee of the commission. 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 transferred to the workers' compensation commission in their respective classifications but subject to reassignment and reclassification of position and compensation as the executive director determines to be in the interest of efficient administration;
(4) Provide offices, equipment, supplies, and other facilities for the commission, including suitable office space for commission employees;
(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, for premium rates and taxes, for administrative charges, for rules and systems of rating, rate revisions, and merit rating for employers covered by this chapter. 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 shall be responsible for their acts;
(14) Provide at commission expense a program of continuing professional, technical and specialized instruction for the personnel of the commission.
(15) (A) Employ in-house 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 in any state or federal court. Additionally, commission may call upon the attorney general for legal assistance and representation as provided by law.
(B) In addition to the authority granted herein to the executive director and notwithstanding any provision to the contrary elsewhere in this code, utilize 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, is authorized to retain counsel for any purpose in the administration of this relating to the collection of any amounts due from employers to the commission. 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 such attorneys as 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 below. 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, 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 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:
(a) 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 shall determine to be customary based upon the attorney's experience and skill level;
(b) The number of hours actually expended on the action;
(c) The complexity of the issues involved in the action;
(d) The degree of risk involved in the case with regard to the probability of success or failure;
(e) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts, and investigators; and
(f) 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 such an employed attorney shall be payable to the commission;
(16) With the approval of the board of managers to promulgate 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 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 repayment agreement with the commission and remains in compliance with its obligations under the repayment agreements.
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, 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 by the bureau of employment programs until the rules required by this subsection are promulgated and in effect.
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) Shall recommend for approval of the board, rules to regulate and sanction self-insured employers and third party administrators for excessive rejection of claims. The rejection rate of self-insured employers shall be measured against the rejection rate of the commission as a whole. Any rejection rate of five percent or more is excessive;
(19) Shall 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; and
(20) Enter into interagency agreements to assist in exchanging information and fulfilling the default provisions of this section.
(21) With the approval of the board of managers to promulgate rules for the administration of claims management by self-insured employers and third party administrators.
§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 and 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 inter-agency agreement to effectuate 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. Workers' compensation nominating committee; composition; responsibilities.

(a) There is hereby created the workers' compensation nominating committee which shall consist of the following members:
(1) Chair of the West Virginia state bar workers' compensation committee, who shall serve as the chair of the nominating committee;
(2) Executive director of the West Virginia development office;
(3) Chair of the West Virginia investment management board;
(4) Chair of the West Virginia state board of risk and insurance management;
(5) President of the West Virginia AFL-CIO or his or her designee;
(6)President of the West Virginia chamber of commerce or his or her designee;
(7) President of the West Virginia medical association or his or her designee;
(8) President of the West Virginia safety council or his or her designee;
(b) The nominating committee shall be responsible for reviewing and evaluating candidates for possible appointment to the board of managers of the workers' compensation commission as provided in subsection a, section one-a and subsection a, section one-b, of article one of this chapter. In reviewing candidates, the nominating committee may accept comments from and request information from any person or source.
(c) For each position for the board of managers, the nominating committee shall present a list of three candidates from which the governor will select one: Provided, That for the initial board only, for the four members of the board described in subdivision five, subsection (b), section one-a of this article, the nominating committee shall provide a list of eight candidates from which the governor shall select four. Each appointment to the board shall be with the advise and consent of the Senate:
(d) No later than the first day of May, two thousand three, the nominating committee shall present to the governor its list of candidates for the initial board of managers. The governor shall appoint the initial full board no later than the first day of July, two thousand three. Thereafter, the nominating committee shall meet at the request of the governor or as the nominating committee determines necessary in order to make timely recommendations to the governor for new appointees as the initial and subsequent terms expire; the commendations to be submitted no later than thirty days prior to the expiration of any term.
§23-1-1e. 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, operating guidelines, and policies no later than the first day of July, two thousand six.
§23-1-1f. 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.

§23-1-1g. 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 article ten, chapter four of this code until the first day of July, two thousand five 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.
In addition to any other oversight of the commission exercised by the Legislature, the commission shall report at least quarterly to the joint commission on economic development. The commission shall provide to the joint commission on economic development an action plan. This plan shall include detail on any administrative changes undertaken by the commission, a report on the anticipated outcome of these changes, a cost benefit analysis of these changes and time frames for commencement and completion of these changes. Subsequent reports to the joint commission on economic development shall report on the progress of these changes. These administrative changes will include, but are not limited to claims processing and organization, reorganization and staffing.
The commission shall further provide detailed analysis in each quarterly report to the joint commission on economic development of the current status of the deficit elimination fund. This analysis shall include the current balance in the fund, revenue generated and expended in relationship to the deficit elimination fund and estimates of debt reduction relative to the deficit elimination fund over the next quarter.
The commission shall also report on the current status of the workers' compensation fund and the occupational pneumoconiosis fund. This analysis shall include the current balances in the fund, revenue generated and expended in relationship to the liabilities and assets of the funds.
The commission should further report to the joint commission on economic development of 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 traveling and incidental expenses of the commissioner 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 or safety in which the commissioner 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 executive director, directed to the auditor of the state, who shall draw his or her warrant therefor, and any such payment shall be charged to the workers' compensation fund: Provided, That the total charges against such fund under this section for any one fiscal year shall not exceed the amount appropriated therefor.

§23-1-4. Office hours; records; confidentiality; exceptions; associate director.

(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 additional days and at such additional times as the division executive director may elect. As the chief executive officer of the bureau of employment programs workers' compensation commission, the commissioner executive director shall designate an executive associate director to serve as the chief operating officer for the daily operations of the workers' compensation division commission: 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. The associate director shall serve at the will and pleasure of 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 not be subject to the provisions of chapter twenty-nine-b of this code unless such provisions are hereafter specifically made applicable in whole or in part. Such information as may be 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 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 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 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.
The executive director and associate director of the workers' compensation commission shall give bond in the penalty of twenty-five thousand dollars conditioned for the faithful performance of the duties of the office, which bond shall be approved by the attorney general as to form and by the board of managers 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 workers' compensation fund.

§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 three of this article.
(b) The executive director shall appoint a competent and qualified person to be chief of each operating division and shall fix his or her compensation, which shall be paid as provided in sections two and three of this article. The chief is the principal administrative officer of that division and is accountable and responsible for the orderly and efficient performance of the duties, functions and services or his or her office.
(c) There shall be in the commission other supervisory officers as the executive director determines is necessary to administer the functions of the commission. The supervisory officers are "administrators" as defined in section two, article six, chapter twenty-nine of this code, notwithstanding the fact that the positions filled by such persons are not statutorily created. Any supervisory officer may be designated by the executive director as a deputy director, assistant director, chief, administrator, or other administrative title or designation. Each of the supervisory officers shall be appointed by the executive director and serve at the will and pleasure of the executive director. The compensation of such supervisory officers shall be fixed by the executive director with the approval of the board of managers. A single individual may be appointed to serve simultaneously in two distinct supervisory positions, but in a case where a dual appointment is made, the supervisory officer shall not receive additional compensation above that which would be paid for serving in one supervisory position.
(d) The commissioner executive director, secretary associate director, chief, 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 commission. Such expenses shall be itemized and sworn to by the person who incurred the expense, and shall be 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 period he or she shall have all the duties and powers of the commissioner executive director. 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. 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 new executive director is appointed by the governor in accordance with section one one-b of this article. The board of managers shall 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 executive director, secretary associate director and every inspector or examiner other employees appointed by the commissioner executive director shall, 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 court on a refusal to testify therein.

§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 employer, 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 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 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 deposition.
(b) The division commission shall also have 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 authority to refuse or permit the taking of such depositions or to reject such the depositions after the taking thereof, 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 depositions shall be binding in the absence of abuse of such 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 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, 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 representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such 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 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 representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such 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 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 claimant with only the summary before the full report shall be 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 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 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 other blanks forms as may be deemed 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 commission shall 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 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 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, which the commissioner executive director may consider 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.

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 subject to all requirements of this chapter and all rules and regulations policies 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 pursuant to subdivision five, subsection (i), section one-a, article one of this chapter to reflect the demand on the compensation fund by the covered employer. For purposes of this chapter "employer" means an individual employer as well as an employer group as provided for herein.
(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 any of the employers described in this subdivision have paid employees, then to the extent of those paid employees the employer must 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 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 clergyman from such 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 case shall be 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 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 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, and at the time of making application to the workers' compensation division commission, such any 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 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 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 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 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
(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 consists of a president, a vice-president, a secretary and a treasurer, each of whom shall be 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 officer as may be deemed 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 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 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 not be deemed 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 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 executive director shall have the authority to review and accept or reject any such 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 must be in writing and filed with the commissioner executive director within ten days after execution thereof 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 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 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, That a subcontractor shall does not include one providing goods rather than 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 payments. Notwithstanding the foregoing, nothing contained in this section shall extend or except to such a primary contractor or subcontractors the provisions of sections 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, however, 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.
(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 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 commission shall be 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 mailing shall be is good and sufficient notice to the primary contractor of the subcontractor's default. However, the primary contractor shall 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 only be for that following calendar quarter and thereafter and only if the subcontract has not been terminated: Provided, That the commissioner commission shall be 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 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. The commissioner executive director, or any person employed by the commissioner commission for that purpose, shall have the right to examine under oath any employer or officer, agent or employee of any employer.
(b) Notwithstanding the provisions of any other statute, 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 in any manner other than the one stated herein or elsewhere authorized in this code, or who divulges or makes known in any manner any of the aforementioned information 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, within the period fixed by the division commission, completed so as to answer fully and correctly all pertinent questions therein propounded, and if unable to do so, shall give good and sufficient reasons for such 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 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, executive director in conjunction with 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 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 the fund 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 board of managers 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) 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.

§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 at the rate determined by the workers' compensation division commission and then in effect. 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, 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 employers who qualify under the provisions of rules promulgated by the compensation programs performance council board of managers to report gross wages and pay premium taxes 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 commission shall be deemed 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 commission may 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, 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 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 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 liable as provided in section eight of this article. The default employer's liability under said these sections shall be 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 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 employer to pay into the workers' compensation fund and shall deprive such 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 employer shall be liable as provided in section eight of this article. The default employer's liability under said section shall be 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 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 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 commission shall have the authority to restore a defaulted or terminated employer through a reinstatement agreement. Such 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 discretion shall be exercised in keeping with the fiduciary obligations owed to the workers' compensation fund. Should the division commission decline to enter into a reinstatement agreement and should the employer 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 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 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 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 denied the benefits and protection of this chapter effective from the date that such 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 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 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 best and sufficient.
(3) Notice to employees in this section provided for 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, 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 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, 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 received the same from the division commission, without just cause or excuse, shall constitute 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 failure shall have 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 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. 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 civil action, the division commission shall be entitled to recover its attorneys' fees and costs of action from the employer.
(b) In addition to the foregoing provisions of this section, any payment, interest and penalty thereon due and unpaid under this chapter shall be 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 lien shall 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 and the same shall be 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 property or a substantial portion thereof 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 delinquency occurs. For such purpose, the division commission may require the services of a sheriff of any county in the state in levying such distress in the county in which the sheriff is an officer and in which such personal property is situated. A sheriff so collecting any payment, interest and penalty thereon shall be entitled to such 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 commission shall be 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 operated in connection with a receivership or insolvency proceeding in any state court in this state, the court under whose direction such 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 payments, interest and penalties as the same 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 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 employer from continuing to carry on the business in which such liability was incurred: Provided, That the division commission may as an alternative to this action require such 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.

§23-2-5b. Premium tax default settlements; relief from liability for accrued interest and penalties; repayment terms and conditions; reinstatement to good standing; voided reinstatement agreements.

The Legislature hereby declares that it is the purpose of this section to provide any employer who is in default as of the effective date of this section in any payment due pursuant to the provisions of this article an opportunity to settle the amount of the default in accordance with the provisions hereinafter set forth. For the purposes of this section, the term "default" applies to any failure by an employer to subscribe to or pay premium taxes that are attributable to the quarter ended on the thirty-first day of December, one thousand nine hundred ninety-eight or quarters ended before that date. In addition, for the purposes of this section, "employer" means any corporation, partnership, limited liability company, sole proprietor, person or other legal entity which is liable or which directly or indirectly may be held liable as a responsible party for the nonpayment of premium taxes.
(a) An employer who qualifies under this section will have six months from the first day of July, one thousand nine hundred ninety-nine, to apply to the commissioner executive director for a settlement of the amount of premium taxes, accrued interest and penalties and any award of attorney's fees made pursuant to subdivision (17), section six one-b, article two one of this chapter, twenty-one- a of this code, owed to the workers' compensation fund as a result of the employer's default on premium tax payments to the division commission. Such The application shall be made on a form prescribed by the commissioner executive director and may impose on the employer such obligations and constraints concerning the time and manner of payment as the commissioner executive director deems necessary to effectuate the purpose of this section.
(b) Notwithstanding provisions in this article to the contrary, the employer shall be relieved of liability for the payment of the interest and penalties which have accrued by operation of other provisions in this article and shall further be relieved of liability for payment of any award of attorney's fees made pursuant to subdivision (17), section six one-b, article two, one of this chapter twenty-one-a of this code, by tendering payment in full of all past- due premium taxes within thirty days from the date that the commissioner executive director notifies the employer in writing that the application has been approved: Provided, That in the alternative, an employer shall be relieved of liability for the payment of the interest and penalties which have accrued by operation of other provisions in this article by fulfilling the terms of a written agreement with the division to pay, within three hundred sixty-five days from the date upon which the agreement is executed, all past-due premium taxes in monthly installments which shall include interest on such past-due premium taxes calculated at the annual percentage rate of nine percent.
(c) Notwithstanding any provisions in this article to the contrary, an employer which is remitting payments to the division commission pursuant to the terms of an agreement entered into prior to the effective date of this section may apply to the commissioner executive director in accordance with subsection (a) of this section to discharge the remaining balance of its indebtedness to the division commission by tendering, within thirty days from the date upon which the commissioner executive director notifies the employer in writing that the application has been approved, payment in full for that portion of the balance which consists of unpaid premium taxes that are attributable to the quarter ended on the thirty-first day of December, one thousand nine hundred ninety-eight, or quarters ended before that date: Provided, That in the alternative, an employer which is remitting payments to the division commission pursuant to the terms of an agreement entered into prior to the effective date of this section may apply to the commissioner executive director in accordance with subsection (a) of this section to discharge the balance of its indebtedness to the division commission by fulfilling the terms of a written agreement with the division commission to pay, within three hundred sixty-five days from the date upon which the agreement is executed, all past-due premium taxes in monthly installments which shall include interest on such the past-due premium taxes calculated at an annual percentage rate of nine percent.
(d) An employer with which the commissioner executive director is, as of the effective date of this section, engaged in litigation concerning the extent to which that employer is liable to the division commission for past-due premium taxes, accrued interest and penalties may in settlement: (1) Tender payment in full for the past-due premium taxes; or (2) fulfill the terms of a written agreement with the division commission to pay, within three hundred sixty-five days from the date that the agreement is executed, all past-due premium taxes in monthly installments which shall include interest on such past-due premium taxes calculated at an annual percentage rate of nine percent.
(e) An employer shall be reinstated to good standing as of the date that the employer tenders payment in full for all past-due premium taxes. An employer who enters into a written agreement with the division commission to pay past-due premium taxes in monthly installments shall be reinstated to good standing as of the date on which the agreement is executed: Provided, That the failure of the employer to make scheduled payments in accordance with a repayment agreement entered into under this section may at the discretion of the commissioner executive director cause the repayment agreement to be voided and the employer shall be denied the benefits and protections of this chapter effective from the date of the employer's initial default. In addition, the employer shall be subject to all remedies available to the division commission pursuant to the provisions of this chapter.

§23-2-5c. Statute of limitations; effective date for new payments; previous payments due not affected.

For payments due after the effective date of this section, 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 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 event of fraud or in 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 to be no limitation on when actions or processes may be brought or issued.
§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 which the division and the compensation programs performance council deem to be the executive director and the board of managers determine is uncollectible.
§23-2-6. Exemption of contributing employers from liability.
Any employer subject to this chapter who shall subscribe and pay into the workers' compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided 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 so subscribing or electing, and during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have 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.

(a) Notwithstanding any provisions of this chapter to the contrary, the following types of employers or employers' group 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.
(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 must individually and collectively meet the conditions set forth in subdivision (A) or (B) above.
(2) In order to be approved for self-insurance status, the employer must:
(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 future claim liability 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 that 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 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 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 purpose.
(b) 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 to enter orders and provide notices of action taken in effectuating the purposes of this chapter to provide benefits to persons who have suffered injuries or diseases covered by this chapter. An employer 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 shall be binding on and shall be strictly to by the self-insured employer in its administration of claims presented by employees of the self-insured employer.
(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.
(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.
(1) If an employer defaults in the payment of any portion of its self- insured premium taxes, the division commission may, 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.
(2) Such premium Premium tax assessments are special revenue taxes under and according to the provisions of state workers' compensation law and are deemed 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) (e) 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 may insure its catastrophic risk through a policy of excess insurance obtained through a private insurance carrier.
(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 section. Until such the 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 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 an An employer's catastrophic liability 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 not 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) 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.
(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) 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 commission 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 executive director, with approval of the board of managers, in order to create and fund such a risk pool, 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 commission, in funding establishing such security risk pool, may authorize the division commission to use any assessments, premium tax assessments and revenues and appropriations as may be made available to the division commission.
(g) 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 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 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) 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) Any employer subject to this chapter, who shall elect 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 election's approval and during the period that the employer is allowed to carry the employer's own risk.
(j) The executive director shall submit for approval of the board rules setting forth procedures for auditing and investigating the program of self- insured employers and third-party administrators wherever a formal substantive complaint has been filed. Audits and investigations shall be conducted whenever the commission has grounds for believing that a self-insured employer is not in full compliance with the commission's rules or this chapter. In addition, the executive director shall monitor programs established by self-insured or third- party administrators under this chapter to ensure compliance with the commission's rules and the law.
(k) The executive director shall submit for approval of the board rules for the approval, renewal, suspension, revocation or termination of an employer's status as a self-insured. Violations for which negative action may be taken by the commission includes, but is not limited to, failure to comply with this chapter, rules or orders of the commission, failure to pay any premium, tax or assessment levied under this chapter, failure to provide medical care or pay benefits as required by this chapter or other misconduct effecting the rights of employers or employees under this chapter.
(l) The executive director may order corrective action rather than taking negative action against a self-insured employer after conducting an investigation into allegations of violations or misconduct by a self-insured employer. If the self-insured employer fails to comply with the order for corrective action or is otherwise in violation of this chapter, the executive director shall recommend to the board revocation, suspension or termination of the employer's self-insured status, probation, a civil penalty not to exceed ten thousand dollars for each failure to comply or each violation or a combination thereof. Any negative action taken or penalty assessed against a self-insured employer may be appealed to as provided in article five of this chapter.
(m) No employer may hire any person or group to administer claims under this chapter as third-party administrators unless the person or group has been approved by the commission.
§23-2-10. Application of chapter to interstate commerce.
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 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 work in this state is clearly separable and distinguishable from his or her interstate work, such employer shall be subject to the terms and provisions of this chapter in like manner as all other employers hereunder. Payments of premiums shall be on the basis of the payroll of those employees who perform work in this state only.
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 1, section 8), section one of this article shall apply 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 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 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 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 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.

§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 workers shall be 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 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 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. 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 not be subject to change during the life of the reinstatement agreement for such 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 or otherwise transfer 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 employer's premium taxes, premium deposits, interest and other payments owed to the division commission shall be 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 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 lien shall constitute 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 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 or otherwise transfer a portion of the employer's assets so as to affect the employer's capacity to do business, then:
(1) Such employer's premium taxes, premium deposits, interest, and other payments owed to the division commission shall be 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 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 lien shall constitute 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 commission shall operate 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 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 of this article and in consideration of the factors thereunder.
(g) The foregoing provisions 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 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 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 decision shall be effective ten days following notice to the public of the decision unless an objection is filed in the manner herein provided. Such 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. 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 section, for other employers in the same class or group, then, 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 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 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 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 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 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 use the 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 employer shall be entitled to file a petition demanding a hearing upon such decision or action which 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 disputed decision or taking such disputed action, such time limitations being hereby declared to be a condition of the right to litigate such decision or action and hence 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 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 entitled to compensation under the provisions of this chapter and shall not by having received same be precluded from making claim against said 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 third party and recovers any sum thereby, the commissioner commission or a self-insured employer shall be allowed statutory subrogation with regard to all indemnity benefits, medical benefits, and any and all other workers' compensation 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 of a reasonable attorney's fee, not to exceed the attorney's fees permitted in this chapter, and reasonable costs. It shall be 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: Provided, That in no event shall subrogation of workers' compensation claims cause the injured worker or dependents to receive less than what he or she received or may receive from workers' compensation.
(c) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon such moneys received 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 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 provisions of this article remain in effect for claims arising from a right of action which arose or accrued, in whole or in part, after the effective date of the amendments to this article enacted during the regular session of the Legislature in 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 board of managers created pursuant to section one, article three, chapter twenty-one-a of this code, 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 rules 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 multi-employer 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 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, executive director in consultation with the board of managers is authorized to establish by rule a premium credit program for certain employers. The program shall be applicable solely to regular subscribers to the workers' compensation fund and not to self-insurers. Participation in any premium credit program shall be voluntary and no employer shall be required to participate.
(b) The program shall apply a prospective credit to the premium rate of a subscribing employer who participates in a qualified loss management program. The prospective credit shall be 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 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 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, executive director, in consultation with the board of managers promulgates an appropriate rule to implement the section's provisions.
ARTICLE 3. WORKERS' COMPENSATION FUND.

§23-3-1. Compensation fund; surplus 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, for the benefit of employees of employers who have paid the premiums applicable to such 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 fund hereinafter provided for, and for the benefit of the dependents of all such employees, and for the payment of the administration expenses of this chapter.
(b) A portion of all premiums that shall be 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 set aside to create and maintain a surplus 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 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, 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 elected, or may hereafter elect, to pay into the catastrophe reserve of the surplus fund under the provisions of that section, then the catastrophe payment arising from such catastrophe shall not be charged against, or paid by, such employer but shall be paid from the catastrophe reserve of the surplus fund.
(d) (1) 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 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 second injury: Provided, That in addition to such 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 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 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 commission, 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) (d) Employers electing, as herein provided, 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 shall be refunded to the subscribers thereto in proportion to their contributions to the same under the provisions of said former article six; and all awards heretofore 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 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 date, and whose employer, at the time of such exposure, was subject to the provisions of said article six.
§23-3-1b. Deficit elimination fund.
(a) The Legislature hereby finds and declares that the there is a substantial actuarial deficit in the workers' compensation fund in the excess of six billion dollars on a full accrued value basis. The Legislature further finds and declares that this deficit represents clear and present danger to the current financial viability of the workers' compensation system and the ability of the system to deliver benefits and services in the future.
The Legislature hereby declares that it is the purpose of this section to identify the deficit existing in the workers' compensation fund on the effective date of this section and provide for a separate funding mechanism not otherwise provided for in this chapter, to extinguish the claim liability associated with the deficit. For purposes of this section, "deficit" means an obligation to make future benefit payments as a result of prior awards for which insufficient invested reserves currently exist to ensure the payment of such future obligations.
(b) There is hereby created in the state treasury a special revenue fund known as the "Deficit Elimination Fund." The fund shall operate as a special fund whereby all deposits and payments thereto do not expire to the general revenue fund, but shall remain in the fund and be available for expenditure in succeeding fiscal years. This fund shall consist of payroll taxes paid by employers and employees, as herein provided, to pay all benefits which shall be due on or after the first day of July two thousand three, in those certain claims which are transferred to the deficit fund for the payment of benefits, as well as interest earned on investments made from moneys deposited in the fund.
(c) On or before the first day of June, two thousand three, and each year thereafter, the commission shall cause to be completed an independent actuarial review of the workers' compensation fund to determine those claims for which future benefit obligations exist as a result of awards previously made, but for which insufficient invested reserves currently exist to ensure the payment of such future obligations. All claims so identified shall be transferred to the deficit fund for payment of benefits due on and after the first day of July, two thousand three, and each year thereafter, and all such future benefit obligations and liability shall cease to be an obligation and liability of the workers' compensation fund and shall become the obligation and liability of the deficit fund.
(d) For the purpose of creating and maintaining the deficit fund, each employer and employee shall pay taxes calculated as a percentage of the employee's gross wages payroll in an amount to be determined by the commission as shall be necessary to meet the annual benefit payment obligations of the deficit fund. The percentage shall be shared equally by the employer and employee and shall be reported to the commission on a quarterly basis along with the employer's quarterly premium taxes. It shall be the obligation of the employer to report, collect through payroll deduction and remit both the employer and employee portion of said tax on forms to be provided by the commission. The deficit fund payroll tax shall be remitted to and collected by the West Virginia department of tax and revenue and any collection enforcement shall be executed pursuant to the provisions of chapter eleven of this code. Copies of such reports shall also be filed with the commission for informational purposes.
(e) All deficit fund payroll taxes remitted to the West Virginia department of tax and revenue shall be delivered to the state treasurer who shall be the custodian of the deficit fund. All deficit fund payroll taxes, deposits or other moneys paid thereto shall be deposited in the state treasury to the credit of the deficit fund. The deficit fund shall be a separate and distinct fund and shall be so kept on the books of the auditor and treasurer in the same manner as provided for in section two, article three of this chapter with respect to the workers' compensation fund. The West Virginia investment management board shall have authority to invest any surplus, reserve or other moneys belonging to the deficit fund on the same basis and in the same manner as is provided for in section two, article three of this chapter with respect to the workers' compensation fund.
(f) The commission shall administer the deficit fund and is authorized to establish rules for the operation of the fund to ensure proper and timely delivery of payments in claims transferred to the fund for payment. The rule shall be promulgated on or before the first day of July, two thousand four.
§23-3-2. Custody, investment and disbursement of fund.
The state treasurer shall be the custodian of the workers' compensation fund and all premiums, deposits or other moneys paid thereto shall be deposited in the state treasury to the credit of the workers' compensation fund 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. 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 executive director and approved by the commissioner of the bureau of employment programs.
The board of investments investment management board created pursuant to the provisions of article six, chapter twelve of this code 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 investment management board. 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 investment management board, prior to advertising the same for sale, and the board of investments investment management board shall, within fifteen days after receipt of such an offer, accept the same and purchase such the bonds, or any portion thereof at par and accrued interest, or reject such the offer. All securities purchased by the board of investments investment management board for investment for the workers' compensation fund shall be placed in the hands of the state treasurer as the custodian thereof, and it shall be his or her duty to keep and account for the same as he or she 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 investment management board until and unless the attorney general shall investigate the issuance of such the 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 the notes, bonds or securities be purchased, shall be filed with the treasurer with such the bonds or securities.
§23-3-3. Investment of surplus funds required.
Whenever there shall be in the state treasury any funds belonging to the workers' compensation fund not likely, in the opinion of the commissioner executive director in consultation with the board of managers, to be required for immediate use, it shall be the duty of the board of investments investment management board to invest the same as prescribed in the preceding section. Whenever it may become necessary or expedient to use any of the funds so invested, the board of investments investment management board, at the direction of the commissioner board of managers, 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 commission is authorized to 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 claimants may not be required to accept such transfers but may elect to do so.
(b) The division commission is further authorized to 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 commission is further authorized to 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) subdivision (i), section seven one-a, article three one, chapter twenty-one-a of this code of this chapter.
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 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 employees are ineligible to receive compensation while such employees are at the same time and for the same reason drawing sick leave benefits. Such state employees may only use sick leave for non-job related absences consistent with sick leave utilization, 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 employees may collect sick leave benefits until receiving temporary total disability benefits. The division of personnel shall promulgate rules pursuant to 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 injury results in lost time from work, and such employee for whatever reason uses or obtains sick leave benefits and subsequently receives temporary total disability benefits for the same time period, such 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 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 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 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 occupational pneumoconiosis and any other occupational disease, as hereinafter defined, and the commissioner commission shall likewise 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 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, 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, 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, but shall 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 meeting the definition of occupational pneumoconiosis set forth in the immediately preceding sentence.
(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 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 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 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.
(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 to have contracted an occupational disease within the meaning of this paragraph 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, except occupational pneumoconiosis, shall be processed in like manner as claims for all other personal injuries.
§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 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 injury, with like notice or a copy thereof 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. Such 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 notice may be given to the workers' compensation division commission by mail.
§23-4-1b. Report of injuries by employers.
(a) It shall be the duty of every employer to report to the commissioner commission every injury sustained by any person in his employ employee. Such 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 five- day period may not be extended by the commissioner commission, but the employer shall have 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. Such 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, or statements in such 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 injury, shall be deemed 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 receipt of any objection made thereto by the employer.
(b) Employers authorized to self-insure their obligations under this chapter, or their duly authorized representatives shall report to the division and the claimant on forms prescribed by the division every injury sustained by any person in his or her employ that results in lost time from the employees workplace in excess of three days. The self-insured employers report shall include a statement as to whether or not, on the basis of the information then available, the self-insured employer has accepted or denied the compensability of the injury or has accepted or denied the payment of temporary disability benefits in connection therewith.

§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 instance when the employer, including self-insured employers, has denied compensability, the commission shall conduct an investigation of the facts and circumstances surrounding the injury. No later than fifteen days from submission of the report of injury, the commission shall make a decision on the compensability of the injury. Should the investigation not be completed within the fifteen day period, the commission shall make a determination on the compensability of the claim based on the information available. 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 payments shall be considered an overpayment. The division commission may only recover the amount of such the an overpayment as provided for in subsection (i) 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 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 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 object to the order of the division commission and obtain an evidentiary hearing as provided in section one, article five of this chapter.
(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 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 injury, 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 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.
(c) The division commission may enter orders granting temporary total disability benefits upon receipt of medical evidence justifying the payment of such benefits. In no claim shall the division commission 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 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 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 that a claimant who has sustained a previous compensable injury which has been closed by any order of the division commission, 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 shall immediately enter an order commencing 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 shall give immediate notice to the parties of its order.
(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 commission shall immediately issue a pay order directing the employer to pay such amounts as are due the claimant for temporary total disability benefits. A copy of the order 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 commission.
(h) In the event that an employer files a timely objection to any order of the division commission 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 commission shall continue to pay to the claimant such the benefits and expenses during the period of such the disability. Where it is subsequently found by the division commission that the claimant was not entitled to receive such temporary total disability benefits or expenses, or any part thereof, so paid, the division commission 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 commission shall refund to such the 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 commission to the surplus fund created in section one, article three of this chapter.
(i) 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 case determines that the claimant was not entitled to such the benefits or expenses, the amount of such benefits or expenses shall be considered overpaid. The division commission may only recover the amount of such overpaid benefits or expenses 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.
(j) 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 employer's report to the claimant in addition to the order denying the claim.
(k) No claimant may receive both temporary total disability 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 in excess of the amount of temporary total disability benefits for which the claimant would otherwise be eligible. The employer shall notify the commission of any benefit paid to a claimant and the commission shall reduce the temporary total disability benefits accordingly.
§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 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 the division commission or the office of judges or the workers' compensation appeal board enters an order 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 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, 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 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 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 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 employer's account with the amount of the overpayment; and, where the employer has elected to carry the employer's own risk, the division commission 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 commission 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 amount of benefits so paid shall be deemed overpaid. The division commission may only recover such 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 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.

§23-4-1e. Temporary total disability benefits not to be paid for periods of penitentiary 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 person is incarcerated confined in a penitentiary or state correctional center, county or regional jail: Provided, That incarceration confined 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 center, county or regional jail who suffers injury or a disease in the course of and resulting from his or her work during such period of incarceration confinement which work is imposed by the administration of the penitentiary or state correctional center, county or regional jail and is not suffered during such 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 injury or disease.

§23-4-1g. Weighing of evidence; rule of liberality; failure to cooperate.

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 each piece of 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. There shall be a rule of liberality requiring that 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 manners of resolution, the resolution that is most consistent with the claimant's position will be adopted.

§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, 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, 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 employee.
(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 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, 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 law suit was and is to protect those so immunized from litigation outside the workers' compensation system except as herein expressly provided; 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 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, such the employer nevertheless thereafter exposed an employee to such the specific unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.
(iii) In cases alleging liability under the provisions of the preceding paragraph (ii):
(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) 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); 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 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; employer physician panels; denial of benefits; 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 commission may determine to be 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 employees as may be entitled thereto hereunder 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 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 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 additional services in the particular case and the division commission shall have the justification reviewed by a health care professional before authorizing any such additional services. The division commission is authorized to 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 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, as the division commission may deem 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 commission shall be have been filed with the division commission within two years one year after the rendering of such treatment or the delivery of such goods, supplies or items: Provided, That no payment hereunder 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 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 treatment is hereby prohibited from making any charge or charges therefor or with respect thereto 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 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 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 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 claimant refuses to seek the specified alternative health care providers, then he or she will be 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 not be personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider.
(b) 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 compensable injury. Any employer violating this section shall be 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 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 confinement in a county or regional jail not exceeding one year, or both: Provided, That the foregoing provisions of this subsection shall not be deemed to prohibit an employer from participating in 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: Provided, however, That nothing in this section shall be deemed to restrict the right of a claimant to select his or her initial health care provider for treatment of a compensable injury or disease an employer to create or participate in an organization that provides a physician panel of at least three physicians per medical specialty. An injured employee shall choose a physician from the physician panel for treatment of the employee's compensable conditions within the provisions of this chapter. This shall not preclude an injured employee seeking emergency treatment from a physician, hospital, clinic or health care provider which is not on the physician panel. Whenever an employer protests the compensability of an injury, the claimant shall have no restriction on the right to select his or her treating physician. The refusal, without good cause, of an injured employee to select a physician from the physician panel shall bar the employee from further compensation until the refusal ceases. The physician selected by the claimant shall be subject to the payment provisions of this section. Should such a claimant obtain his or her initial health care from a provider other than one on his or her employer's physician panel and 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 program consisting of a preferred provider organization or program, a health maintenance organization, then the claimant shall select a new health care provider through such the managed care program. Moreover, if the division commission enters into an agreement which has been approved by the compensation programs performance council board of managers with a preferred provider organization or program, a health maintenance organization or other health care delivery organization or organizations, then if a claimant seeks to change his or her initial choice of health care provider and if the claimant's employer does not provide access to such an organization 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 available to him or her.
(c) When an injury has been reported to the division commission by the employer without protest, the division commission 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 a self-insured employer to pay, within the maximum amount provided by schedule established by the division commission as aforesaid, 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 to be originally furnished, or which are broken in the course of and as a result of the employee's employment. The fund 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 commission is authorized to engage in and contract for medical cost containment programs, medical case management programs and utilization review programs. Payments for these programs shall be made from the supersedeas reserve of the surplus fund. Any order issued pursuant to any such 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, 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.
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) 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) 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) 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) Assist the commissioner commission in establishing guidelines as to the anticipated period of disability for the various types of injuries pursuant to subsection (b), section seven-a of this article.
(e) 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 subsection (a) of this section.
§23-4-3c. Suspension or termination of providers of health care.
(a) The commissioner commission may suspend for up to one year or 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 excessive, medically unreasonable or unethical care to injured employees;
(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.
The commissioner commission 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 commission determining that there is probable cause to believe that a health care provider should be suspended or terminated pursuant to this section, the commissioner commission shall provide such the health care provider with written notice which shall state the nature of the charges against the health care provider and the time and place of a hearing at which such 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 commission's evidence and to cross-examine the commissioner's commission'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 the power to subpoena witnesses, papers, records, documents and other data and things in connection with the proceeding hereunder and to administer oaths or affirmations in any such hearing. If, after reviewing the record of such the hearing, the commissioner commission 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 terminated, the commissioner commission 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. 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 the appeal shall be as provided in section four, of said article article five, chapter twenty nine (a) of this code. The provider may be suspended or terminated, based upon the final order of the commissioner commission, 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 commission within thirty days, it shall be 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 commission's final order terminating or suspending the health care provider: Provided, That nothing herein shall prohibit payment by the commissioner commission 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 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 commission or the self-insured employer. The written consent and waiver signed by the injured employee shall be filed by the provider with the commissioner commission and shall be made a part of the claim file.
(d) The commissioner commission 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 commission, 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 executive director 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 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, as the division commission may deem proper, in addition to such award as may be made to the employee's dependents.
(b) A funeral director, or any person who furnished the services and supplies associated with the funeral expenses, or a person who has advanced payment for same, 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.
§23-4-6. 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 "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 the injury causes temporary total disability, the employee shall receive during the continuance thereof 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 the case of a claimant whose injury occurred prior to the second day of February, one thousand nine hundred ninety-five, the first day of July, 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 shall not be less than thirty-three and one-third percent of the average weekly wage in West Virginia, except as provided in section six-d and section nine of this article. In no event, however, shall such 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 that the minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section shall be limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks.
(d) For all awards of permanent total disability benefits that are made where the date of injury is on or after the second first day of February July, one thousand nine hundred ninety-five two thousand three, 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 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 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 first day of February July, one thousand nine hundred ninety-five two thousand three, such awards shall continue to be paid at the rate in effect prior to the said date, subject to annual adjustments for changes in the average weekly wage in West Virginia: Provided, That the provisions of sections one through eight, 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 the employee to a rebuttable presumption of a permanent total disability for the purpose of paragraph (2) two, 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 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, 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 where the date of injury is on or after the second day of February, one thousand nine hundred ninety-five first day of July, 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: seventy percent of the average weekly wage earnings, wherever earned, of the injured employee at the date of injury, not to exceed sixty-six and two-thirds percent of the average weekly wage in West Virginia: Provided, That in the case of a claimant whose injury occurred prior to the second day of February, one thousand nine hundred ninety-five first day of July, 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 finger shall be considered a thirty-two percent disability.
The loss of index and middle finger shall be considered a twenty percent disability.
The loss of middle and ring finger shall be considered a fifteen percent disability.
The loss of ring and little finger shall be considered a ten percent disability.
The loss of thumb, index and middle finger shall be considered a forty percent disability.
The loss of index, middle and ring finger shall be considered a thirty percent disability.
The loss of middle, ring and little finger 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 a claimant sustain a compensable injury which results in the total loss by severance of any of the bodily members named in this subdivision, die from sickness or noncompensable injury before the division commission makes the proper award for such injury, the division commission shall make such award to claimant's dependents as defined in this chapter, if any; such 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 claimant after his or her remarriage, and that this liability shall not accrue to the estate of such claimant and shall not be subject to any debts of, or charges against, such estate.
(g) Should a claimant to whom has been made a permanent partial award die from sickness or noncompensable injury, the unpaid balance of such award shall be paid to claimant's dependents as defined in this chapter, if any; such 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 claimant after his or her remarriage, and that this liability shall not accrue to the estate of such claimant and shall 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 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 subdivision and said 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 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 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 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 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 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 no issue of permanent total disability shall be referred to the interdisciplinary examining board unless a properly completed and supported application for permanent total disability 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 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 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 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 elects to examine a claimant, the individual members shall conduct such examinations as 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 additional members to the board as may be 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. Copies of the reports of all such examinations made by the board shall be served upon the parties and the division commission. and each 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 partial disability where the injury occurred on or after the first day of July, 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 that results in a finding of permanent total disability was filed with the commission pursuant to subdivision (1), subsection (j), section six of this section
(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 either party contend 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 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 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 date of last exposure on and after the second first day of February July, one thousand nine hundred ninety-five two thousand three, and for all requests for such an award pending before the division commission on and after the second day of February July, one thousand nine hundred ninety-five, 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 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 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 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 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 disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities 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. For all awards for permanent total disability where the date of injury or last exposure to an occupational disease was on or after the first day of July, two thousand three, a person will be considered to be permanently and totally disabled within the context of this chapter if that person has not voluntarily retired from the work force, and after achieving maximum medical improvement from an injury or disease covered by this chapter is incapable of returning to gainful employment due to the residuals of that injury or disease, or due to the combined effects of that injury or disease and prior injuries or diseases that are also covered by this chapter. Gainful employment is work for which a person has or can acquire the skills or abilities necessary for its performance and which will result in the payment of a wage or salary that is equal to or greater than the claimant's earnings prior to the injury. In addition, the vocational standards adopted pursuant to subsection (m), section seven, article three, 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 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) 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 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 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 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 last exposure to the hazards of occupational pneumoconiosis was on or after the first day of July, 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 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 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 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 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 impairment of speech discrimination other than that compensated for by application of the formulas specified in subdivisions (b) and (c) of this section, or 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
Partial
% of Speech Discrimination 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 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 the article insofar as applicable to permanent partial disabilities for hearing loss shall be 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 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 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 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 upon the receipt by the division commission of such the 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 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 entitled to no further benefits by such the award but shall not be liable by offset or otherwise for the excess paid.
(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 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 commission 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.
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 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 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 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 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 should the claimant refuse without good cause, to undergo the examinations provided for in this section until the claimant submits to the examination.
§23-4-8. Physical examination of claimant.
The commissioner commission shall have authority, after due notice to the employer and claimant, whenever in the commissioner's commission's opinion it shall be 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 commission shall have the power, after due notice to the employer, and whenever in the commissioner's commission's opinion it shall be necessary, to order a claimant to appear for examination before the occupational pneumoconiosis board hereinafter provided. In any case the claimant shall be 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 Two of them shall be roentgenologists. One 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 board at a time and place stated in the notice. If the employee be living, he or she shall appear before the board at the time and place specified and submit to such examination, including clinical and X-ray examinations, as the board may require. If a physician licensed to practice medicine in the state shall make affidavit that the employee is physically unable to appear at the time and place designated by the board, such 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 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. When in the opinion of the board an autopsy is deemed necessary accurately and scientifically to ascertain and determine the cause of death, such autopsy examination shall be ordered by the board, which shall designate a duly licensed physician, a pathologist, or such other specialists as may be deemed necessary by the board, to make such examination and tests to determine the cause of death and certify his or her or their written findings, in triplicate, to the board, which findings shall be public records. In the event that a claimant for compensation for such death refuses to consent and permit such autopsy to be made, all rights for compensation shall thereupon be 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 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 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.
(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 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 copy to such party, unless for good cause shown, the commissioner commission or chief administrative law judge extends such time, such party's objections thereto 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 findings and hence 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. If objection has been filed to the findings and conclusions of the board, notice thereof shall be given to the board, and the members thereof joining in such 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 findings and conclusions. At such 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 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 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 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 the goal of rehabilitation to return injured workers employees to employment which shall be 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 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 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 will assist the employee return to remunerative employment, the commissioner commission shall forthwith 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 purposes: Provided, That such expenditure for vocational rehabilitation shall not exceed ten 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 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 treatment: Provided further, That payment for physical rehabilitation, including the purchase of prosthetic devices and other equipment and training in use of such devices and equipment, shall be considered expenses within the meaning of section three of this article and shall be subject to the provisions of sections three, three-a, three-b and three-c of this article. The provision of any rehabilitation services shall be pursuant to a rehabilitation plan to be developed and monitored by a rehabilitation professional for each injured employee.
(c) In every case in which the commissioner commission shall order orders physical or vocational rehabilitation of a claimant as provided herein, 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, be compensated on a temporary total disability basis for such 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 benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b), section six of this article, nor shall such 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. 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 change has occurred, the amount of benefits payable hereunder 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.
(e) The commissioner executive director in conjunction with the board of managers shall promulgate 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 rules shall provide definitions for rehabilitation facilities and rehabilitation services pursuant to this section.
(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 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, 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 that the degree of such 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 date of such injury until 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 no dependents, the disbursements shall be limited to the expense provided for in sections three and four of this article.
(b) If there be dependents as defined in subdivision (d) of this section, such the dependents shall be paid for as long as their dependency shall continue in the same amount as 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 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 jointly entitled to the amount of benefits payable as a result of employee's death.
(2) A wholly dependent father or mother until death.
(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 the division commission may determine, 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 shall, except as may be specifically provided to the contrary therein, cease upon the death of the dependent, and the right thereto shall not vest in his or her estate.
(d) "Dependent", as used in this chapter, shall mean a widow, widower, child under eighteen years of age, or under twenty-five years of age when a full- time student as provided herein, 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, 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, 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.
(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 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 it may deem just and equitable. Payment to a dependent subsequent in right may be made if the commissioner commission deems proper, and shall operate to discharge all other claims therefor.
§23-4-12. Application of benefits.
The dependent or person to whom benefits are paid shall apply the same to the use of the several beneficiaries thereof 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 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 the average weekly wage in West Virginia as determined by the commissioner commission in accordance with the provisions of sections ten and eleven, article six, chapter twenty-one-a of this code subsection (b), section two, article two of this chapter, 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 injury. If during the life of such 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 increased or decreased benefits beginning as of the effective date of said 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 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 month 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 jurisdictional, and all proofs of dependency in fatal cases must likewise 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 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, the application therefor must 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 occupational pneumoconiosis was made known to him or her by a physician or which he or she should reasonably have known, whichever shall last occur, and unless so filed within such 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 jurisdictional, or, in the case of death, the application shall be filed as aforesaid by the dependent of such employee within one year from and after such 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, the application therefor must 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, and unless so filed within such 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 jurisdictional, or, in case of death, the application shall be filed as aforesaid by the dependent of such employee within one year from and after such 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 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 beneficiary shall be required to accept, commutation of such benefits into a lump sum settlement and payment. Nonresident alien beneficiaries within the meaning hereof shall mean 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 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 and whether the claimant was exposed to such 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. 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 hazard over a continuous period of not less than two years during the ten years immediately preceding the date of last exposure thereto and whether the claimant was exposed to such hazard over a period of not less than ten years during the fifteen years immediately preceding the date of last exposure thereto. If a claim for occupational pneumoconiosis benefits be 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 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 and whether the claimant was exposed to such 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. The division commission shall also determine such other nonmedical facts as may in the division's commission 's opinion be 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, and shall give each interested party notice in writing of these findings with respect to all such nonmedical facts. and such The findings and such actions of the division commission shall be final unless the employer, employee, claimant or dependent shall, within thirty days after receipt of such the notice, object to such findings, and unless an objection is filed within such the thirty-day period, such the findings shall be forever final, such the time limitation being hereby declared to be a condition of the right to litigate such findings and hence 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 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 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 continuing and the division commission may, in accordance with the following provisions and after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be 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 date shall be determined by the following paragraphs of this subsection. Any such request that is made beyond such 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 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 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 were provided without a prior request. For the exclusive purposes of this paragraph, 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 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 commission will then refer the claimant for such further examinations as may be 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 commission shall have 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. 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 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 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.
(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, one thousand nine hundred seventy-one, and a protest is filed thereto or an appeal is taken therefrom by an employer only and not by the claimant or dependent and the award is not ultimately denied or reduced following such protest or appeal, the commissioner commission shall add thereto interest at the simple rate of six percent per annum from the date the award would have been payable had such 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 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 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 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 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 employees or their dependents, and shall be 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 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 shall be calculated and paid from the date of disability.
§23-4-20. Postmortem examinations.
The commissioner commission shall have authority, after due notice to the employer and claimant, whenever he shall deem it deems it necessary, to order an autopsy, and may designate a duly licensed physician to make such postmortem examination or examinations as may be 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 or 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., and in In the event that a claimant for compensation for such death refuses to consent and permit such 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 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.
(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 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.
(k)
(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 executive directors 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 applications of the section as 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 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 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 produce additional evidence of permanent total disability before the division commission or the office of judges nor shall such a claim be remanded for the production of such 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 commission shall have 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 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 benefits were awarded. This section is not applicable to the receipt of medical benefits or the payment therefor, 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 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 WORKMEN'S RELIEF FUND.
§23-4A-1. Disabled workmen's 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, one thousand nine hundred seventy-three, there is hereby created a separate fund to be known as the "Disabled Workmen's Relief Fund," which fund shall consist of such sums as are from time to time made available to carry out the objects and purposes of this article. Said fund shall be in the custody of the state treasurer and disbursements therefrom shall be made upon requisition signed by the commissioner executive director to those persons entitled to participate therein and in such amounts to each participant as is 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 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 participant shall be 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 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 fund under the provisions of this section may file his or her application therefor with the commissioner executive director and shall be accorded a hearing thereon.

§23-4A-6. Powers of commission over disabled workmen's relief fund.

In the investigation and determination of the right of persons to participate in the disabled workmen's relief fund, the commissioner executive director shall have and 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 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 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 relief fund.

§23-4A-7. Employees to administer disabled workmen's relief fund; payment of salaries.

The commissioner executive director shall employ such employees as may be necessary to discharge his or her duties and responsibilities under this article. The salaries and expenses of such the employees shall be paid by the treasurer of the state from the disabled workmen's relief fund upon vouchers authorized and signed as provided in section two, article one of this chapter.
§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 article two, section nine, an amount estimated by the commissioner executive directors to be necessary to carry out the provisions of this article for one year.
Such 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 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 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 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. The West Virginia state board of investments shall have authority to 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 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 the commissioner board of managers may determine. It shall be 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 the person rates shall be adjusted annually, or more often as may in the opinion of the commissioner board of managers be necessary.
The commissioner commission may by rule and regulation classify subscribers into groups or classes according to the nature of the hazards incident to the business thereof, and assign premium rates thereto. In addition, the commissioner commission 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-8. Separable from workers' compensation fund.
(a) No disbursements shall be made from the workers' compensation fund on account of any provision of this article: Provided, That the Legislature may at any time merge, consolidate, alter or liquidate this fund as it may determine and in no instance shall the operation of this article be construed as creating any contract which would deprive any injured employee of future benefits or increases awarded by an act of Congress, nor shall this section operate to create any liability upon the state of West Virginia.
(b) The Legislature hereby finds and declares that there is a substantial actuarial surplus in the coal-workers' pneumoconiosis fund in excess of two hundred million dollars. The Legislature further finds and declares that there is a substantial actuarial deficit in the workers' compensation fund in excess of four hundred million dollars, and that this deficit is in large part attributable to claims arising out of the coal industry. The commissioner executive director in conjunction with the board of managers is hereby directed to conduct an actuarial audit to determine the amount, computed at book value, of the actuarial surplus in the coal-workers' pneumoconiosis fund as of the thirtieth day of June, one thousand nine hundred ninety, and to certify such amount, as of that date, in a written order which together with the results of said the audit shall be a public record. Notwithstanding the provisions of subsection (a) of this section or any other provision of this article to the contrary, the commissioner executive director in conjunction with the board of managers shall, by written order, transfer the assets underlying said the surplus to the workers' compensation fund, which assets shall thereupon become merged into and consolidated with the workers' compensation fund: Provided, That the value of the assets so transferred, when computed according to the book value of said the assets on the date of transfer, shall not exceed two hundred fifty million dollars: Provided, however, That such the assets so transferred shall be held in a separate account and shall not be used for the satisfaction of obligations of the workers' compensation fund until all other assets of the workers' compensation fund have been expended: Provided further, That the income earned, from time to time, on the assets so transferred may be used to satisfy obligations of the workers' compensation fund: And provided further, That a sufficient reserve shall be retained in the coal-workers' pneumoconiosis fund to guarantee the payment of all claims incurred, including claims which were incurred but not reported, on or before the thirtieth day of June, one thousand nine hundred ninety: And provided further, That any moneys due and owing to the coal-workers' pneumoconiosis fund as a result of any transfer of moneys pursuant to section eight-a of this article shall be construed as an asset of the coal- workers' pneumoconiosis fund and shall be included as an asset transferred to the workers' compensation fund under the provisions of this section. If at any time subsequent to the transfer of the aforesaid assets to the workers' compensation fund, the standards for obtaining benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended and as subsequently amended, are changed such that the actuarial audit performed hereunder may no longer accurately reflect the liabilities of the coal-workers' pneumoconiosis fund for claims arising prior to the first day of July, one thousand nine hundred ninety, the commissioner board of managers in conjunction with the executive director shall promptly conduct a new audit to determine whether any portion of the foregoing separate account should be returned to the coal-workers' pneumoconiosis fund in order to provide adequate reserves for claims arising prior to the first day of July, one thousand nine hundred ninety, and, if the results of such the new audit determine that said the reserves are inadequate, the commissioner board of managers in conjunction with the executive director shall transfer back to the coal-workers' pneumoconiosis fund that portion of the assets in the separate account necessary to provide adequate reserves for such claims.

§23-4B-8a. Legislative findings; transfers to the state; maximum transfer authorization; purpose for which moneys transferred may be disbursed and expended; maximum amount of transfer authorization; terms and conditions for repayment; premiums to be set without regard to transfers; creation of special account in state treasury.

(a) The Legislature hereby finds and declares that there is a casual deficit in the general revenue fund of this state because of the failure of the state's taxation program to produce the estimated revenues, such deficit condition having come into existence from ordinary expenses of the state without design and unexpectedly; that there is a large surplus of moneys in the coal- workers' pneumoconiosis fund; that transfers not to exceed thirty million dollars from the coal-workers' pneumoconiosis fund will assist in financing government operations, without in any way affecting the solvency of the coal-workers' pneumoconiosis fund; and that the interest being earned on the coal-workers' pneumoconiosis fund each year has for some time exceeded thirty million dollars. This section is enacted in view of these findings.
(b) Whenever the governor determines that the general revenue fund available for expenditure is insufficient for the timely payment for government operations, the treasurer, state board of investments and the commissioner executive director shall transfer moneys from the coal-workers' pneumoconiosis fund to the special account created in the state treasury by subsection (f) of this section, in the amounts determined by the governor to be sufficient and necessary to meet such payments. The total of the amounts transferred may not exceed thirty million dollars, and the transfers shall be subject to the payment of interest equal to the actual interest rate earned by the coal-workers' pneumoconiosis fund on the day of each transfer for the period of each transfer until repayment.
(c) Any such transfer may be used only for payments for medicaid reimbursement.
(d) Full repayment of all transfers, with interest, shall be made to the coal-workers' pneumoconiosis fund by budget action as first priority from the moneys available for each fiscal year as follows: At least one fifth of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred eighty-nine; at least one fourth of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety; at least one third of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety-one; at least one half of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety-two; and the balance of the remaining amount transferred shall be repaid with interest no later than the thirtieth day of June, one thousand nine hundred ninety-three. Repayment transfers, shall be made by budget action as first priority from the moneys available for each fiscal year and as made, shall not be deemed to renew, restore or increase in any way the maximum amount of thirty million dollars herein authorized.
(e) The rates of premiums to be paid for coverage by the coal-workers' pneumoconiosis fund shall be determined by the commissioner board of managers with like effect as if all such transfers had not been made but had, together with the interest earned thereon, been available for use by the coal-workers' pneumoconiosis fund.
(f) There is hereby created in the state treasury a special account for the deposit, withdrawal and repayment of moneys transferred pursuant to this section and to invoke the applicability of the special fund doctrine with respect to budgetary transfer activities involving more than one fiscal year.
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 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 board of managers is authorized to 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 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 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 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 the approved settlement may specify. In the event of the settlement of any disputed claim wherein one or more of the persons entitled to the proceeds to be paid pursuant to such 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 the person under disability is a resident or wherein a civil action could be brought and maintained upon such 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 the commissioner board of managers may determine. It shall be 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 as contemplated by section four, article two of this chapter, and assign premium rates thereto. 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 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 employees as may be 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.