hb2120 sub

COMMITTEE SUBSTITUTE
FOR
H. B. 2120
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)

[By Request of the Executive]
(Originating in the Committee on Finance)
[January 14, 2003]

A BILL to amend chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-a; to amend and reenact sections four, five and nine, article two of said chapter; to amend and reenact section one, article three of said chapter; to further amend said article three by adding thereto a new section, designated section two-a; and to amend and reenact sections one-c, one-d and six, article four of said chapter, all relating to providing security for the workers' compensation fund generally; providing for the workers' compensation deficit reduction act; requiring commissioner to obtain written professional opinion of qualified actuary that certifies rates of premium taxes or other assessments applicable to employers; prohibiting rates other than those certified; authorizing workers' compensation division to require employers to make reports and payments of premium taxes or other assessments at intervals other than quarterly; providing for the elimination of second injury awards and the second injury reserve fund for certain claims; providing for security or bond provided by employers; requiring payment of employer's deficit amortization assessment by certain employers; authorizing certain employers to insure its catastrophic risk through private insurance carrier; removing obsolete language; providing for a security risk pool; requiring the employers authorized to self-insure their obligations to administer their own claims; providing for certain audits; promulgation of rules by the commissioner; providing periodic transfers to the workers compensation fund from the West Virginia tobacco settlement trust fund; removing requirement that division refund overpayments made by self- insured employers; authorizing the compensation programs performance council to approve future benefits from which overpayments may be recovered; reducing basis for computation of temporary total disability benefits for certain claims; increasing threshold measurement of medical impairment for eligibility for award of permanent total disability; applications for awards; and effective date of enactment of amendments.

Be it enacted by the Legislature of West Virginia:

That chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-a; that sections four, five and nine, article two of said chapter be amended and reenacted; that section one, article three of said chapter be amended and reenacted; that said article three be further amended by adding thereto a new section, designated section two-a; and that sections one-c, one-d and six, article four of said chapter be amended and reenacted, all to read as follows:

ARTICLE 1A. WORKERS' COMPENSATION DEFICIT REDUCTION ACT.

§23-1A-1. Short title; intent and findings.

(a) The amendments to this chapter enacted during the regular session of the Legislature in the year two thousand three shall be known as the "Workers' Compensation Deficit Reduction Act".
§23-1A-2. Legislative intent and findings.

It is the intent of the Legislature that the amendments to this chapter enacted during the regular session of the Legislature in the year two thousand three be applied from the date upon which the enactment is made effective by the Legislature. The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund, and that although provisions of the enactment may appear to be inconsistent with the provisions of the decision of the West Virginia Supreme Court of Appeals in the case of State ex rel. Blankenship v. Richardson, the Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances currently confronting the State, and that unless the changes provided by the enactment of the amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of the public fisc requires the limitations on any expectations that may have arisen from prior enactments of this chapter.

ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.

§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems; accounts.

(a) The commissioner, in conjunction with the compensation programs performance council, is authorized to 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;

(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 to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund and in keeping with their fiduciary obligations to the fund;.

(3) The rule shall be consistent with generally accepted actuarial and 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.

(6) Prior to the first day of July, two thousand three, the commissioner shall obtain the written professional opinion of a qualified actuary that certifies, as to each classification of employers and in the aggregate, the lowest possible rates of premium taxes or other assessments applicable to employers subject to this chapter that are consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund within a period certified as reasonable by the actuary, such period to be subject to the approval of the compensation programs performance council. Beginning the first day of July, two thousand three, the commissioner shall fix and maintain the rates of those premium taxes at the amounts certified by the actuary. Thereafter the rates of premium taxes or other assessments applicable to employers subject to this chapter shall be those similarly certified in the written professional opinion of a qualified actuary. The professional written opinion of an actuary shall be obtained by the commissioner at least annually prior to the first day of July of each year. It shall be a violation of this chapter to:

Fix and maintain the rate of any premium tax other than at the rate certified by the actuary;

Fail to obtain the opinion of an actuary as required by this section; or

Permit a rate of premium tax to be maintained at any rate that is not the rate certified by the most recent professional opinion of an actuary as required by this section.

(b) Notwithstanding any other provision of this chapter to the contrary, the compensation programs performance council may elect to premise its premium tax determination methodology on the aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in which this chapter refers to gross wage reports for the purpose of premium tax determination such references shall be taken to mean a report of the number of hours so worked.

(c) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated the prior provisions of this section as found in chapter one hundred seventy-one of the acts of the Legislature, one thousand nine hundred ninety-three, shall remain in effect.
~~(d)~~(c) In accordance with generally accepted accounting principles, the workers' compensation division 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; 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 and then in effect. At the time each employer subscribes to the fund, the application required by the division 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 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 may ~~permit~~ require employers who qualify under the provisions of rules promulgated by the compensation programs performance council 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 for the preceding reporting period. The report shall be on the form or forms prescribed by the division, and shall contain all information required by the division.

(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 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 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 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, which shall maintain a record of all sums so received. Any such sum mailed to the division 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 shall be deposited in the state treasury to the credit of the workers' compensation division in the manner now prescribed by law.

(5) The division 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.

(b) Failure of an employer to timely pay premium taxes or any other assessment, 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 determines that such delinquency has been caused by delays in the administration of the fund. The division shall, in writing, within sixty days of the end of each quarter or other applicable reporting period notify all delinquent employers of their failure to timely pay premium taxes or other assessments, to timely file a payroll report or other report or to maintain an adequate premium deposit. Each employer who shall fail to timely file any quarterly payroll report or other report or timely pay the premium tax or other assessment due with such 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 or other assessment due with such report by the penalty rate applicable to that ~~quarter~~ reporting period. The penalty rate to be used in a workers' compensation division'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 the rate published in the Wall Street Journal on the last business day of the division'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 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 late penalty is not paid when due, the same may be charged to and collected by the division 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 or other assessment, the penalty for late reporting or payment of premium taxes, assessment 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~~ reporting period. 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 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 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 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 shall notify the default employer of the method by which the employer may be reinstated with the fund. The division 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 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 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 under this section.

(2) The division 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 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. Such discretion shall be exercised in keeping with the fiduciary obligations owed to the workers' compensation fund. Should the division 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 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; (B) include a report of the gross wages payroll of the employer which had not been reported to the division 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: Provided, That if the division 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 may then make and continue with any of the collection efforts provided for by this chapter or elsewhere in this code even if the employer files another reinstatement application.

(g) With the exception noted in subsection (h), section one of this article, no employee of an employer required by this chapter to subscribe to the workers' compensation fund shall be denied benefits provided by this chapter because the employer failed to subscribe or because the employer's account is either delinquent or in default.

(h)(1) The provisions of this section shall not deprive any individual of any cause of action which has accrued as a result of an injury or death which occurred during any period of delinquency not resolved in accordance with the provisions of this article, or subsequent failure to comply with the terms of the repayment agreement.

(2) Upon withdrawal from the fund or termination of election of any employer, the employer shall be refunded the balance due the employer of its deposit, after deducting all amounts owed by the employer to the workers' compensation fund and other agencies of this state, and the division shall notify the employees of such employer of said termination in such manner as the division 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 as to any injury or death sustained after the date specified in said notice. Such notice shall be in the form prescribed by the division and shall be posted in a conspicuous place at the chief works of the employer, as the same appear in records of the division. If said chief works of the employer cannot be found or identified, then said notices shall be posted at the front door of the courthouse of the county in which said chief works are located, according to the division's records. Any person who shall, prior to the reinstatement of said employer, as hereinbefore provided for, or prior to sixty days after the posting of said notice, whichever shall first occur, remove, deface or render illegible said notice, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined one thousand dollars, and said notice shall state this provision upon its face. The division 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 notice and to make return thereof of the fact of such posting to the division, and any failure of such officer to post any notice within ten days after he or she shall have received the same from the division, 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 official, and upon any official bond he or she may have given, for such damages as such person may actually have incurred, but not to exceed, in the case of any surety upon said bond, the amount of the penalty of said bond. Any official posting said 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 fee shall be paid by the division out of any funds at its disposal, but shall be charged by the division against the account of the employer to whose delinquency such notice relates.

§23-2-9. Election of employer to be self-insured and to provide own system of compensation; ~~mandatory participation in second injury reserve;~~ exceptions; catastrophe coverage; self administration; regulation of self insurers.

(a) Notwithstanding any provisions of this chapter to the contrary, the following types of employers 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 to value to those provided for in this chapter.

(2) In order to be approved for self-insurance status, the employer must:

(A) Have an effective health and safety program at its workplace; and

(B) Provide security or bond in an amount or form, or in amount and form, to be determined by the division with concurrence of the compensation programs performance council, and 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 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 employer, shall not be granted the right, individually and directly or from such benefit funds or system of compensation, to be self-insured until the employer has paid into the workers' compensation fund the amount of such excess of liability over premiums paid, including the employer's proper proportion of the liability incurred on account of catastrophes or second injuries as defined in section one, article three of this chapter and charged against such fund.

(4) Upon a finding that the employer has met all of the requirements of this section, the employer may be permitted self- insurance status. An annual review of each self-insurer's continuing ability to meets its obligations and the requirements of this section shall be made by the workers' compensation division. 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. 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 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 for use by the employer or its guarantors, surety companies, banks, financial institutions or others in its behalf for such purpose.

(b) Each self-insured employer shall, on or before the last day of the first month of each quarter, file with the division 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 or other assessment:

(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; and

(5) A sum sufficient to pay the employer's deficit amortization assessment.

(c) 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~~ catastrophe 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 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 then, in an appropriate case, be assessed against the employer and the division may demand and collect the present value of such 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 and to the employer's employees is a sufficient basis for reinstating the employer to good standing with the fund.

(2) Such 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. 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.

(d) 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. Nothing in this chapter shall prohibit the self-insured employer from insuring 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 such section. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one. If the employees of such an 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 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~~ 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)~~(e) 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 self-insured second injury 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 division, with concurrence of the compensation programs performance council, 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 pool is created, the division, with concurrence of the compensation programs performance council, shall adopt rules for the organizational plan, participation, contributions and other payments which may be required of self-insured employers under this section. The council~~, in order to create and fund such a risk pool,~~ may adopt a rule authorizing the division 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 risk pool to serve the needs of employees, employers, and the workers' compensation fund by providing adequate security. The council, in funding such security risk pool, may authorize the division to use any assessments, premium tax assessments and revenues and appropriations as may be made available to the division.

(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 for a period of four or more consecutive quarters shall have its status at the division 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 meets 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 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 employer shall be discharged from any further portion of premium tax liability upon such award or awards and payment of the award or awards shall be assumed by the division.

(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) Notwithstanding any provisions in this chapter to the contrary, self-insured employers shall, effective the first day of July, two thousand three, administer their own claims. The commissioner shall, with concurrence of the compensation programs performance council, develop and publish such rules as necessary to regulate the administration of claims by employers granted permission to self-insure their obligations under this chapter. Such rules shall be promulgated at least thirty days prior to the first day of July, two thousand three.

(k) An employer granted permission to self-insure its obligations under this chapter shall at all times be bound by and shall comply fully with all of the provisions of this chapter, and with such rules relating to self-insurance claims administration as may be promulgated by the commissioner. Each self-insured employer or the employer's representatives, or the self-insured employer and the employer's representatives, shall be audited on a basis and a frequency to be determined by the commissioner, but in no event less often than bi-annually. Repeated violations of the provisions of this chapter constitute sufficient grounds for the termination of the authority for an employer to self-insure its obligations under this chapter.
ARTICLE 3. WORKERS' COMPENSATION FUND.

§23-3-1. Compensation fund; surplus fund; catastrophe and catastrophe payment defined; ~~second injury and second injury reserve;~~ compensation by employers.

(a) The commissioner 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 or other return earned on investments by of 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~~ For all new claims filed on or after the effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, and for all claims filed before that effective date in which eligibility for permanent total disability has not been determined as of that effective date, the following provisions relating to second injury are not applicable. For claims filed before the date specified above, 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 therefore, 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, compensate the said employee in the same manner as if the total permanent disability of the employee had resulted from a single injury while in the employ of such employer.

(e) Employers electing, as herein provided, to compensate individually and directly their injured employees and their fatally injured employees' dependents shall do so in the manner prescribed by the division, and shall make all reports and execute all blanks, forms and papers as directed by the division, and as provided in this chapter.

§23-3-2a. Transfers to workers' compensation fund to reduce deficit.

(a) The Legislature finds that a deficit exists in the workers' compensation fund. This section is enacted for the purpose of contributing to efforts to reduce and eliminate that deficit.

(b) Notwithstanding any provision of article eleven-a, chapter four of this code to the contrary, twenty million dollars shall be transferred from the principal of the West Virginia tobacco settlement medical trust fund created in section two, article eleven-a, chapter four of this code to the workers' compensation fund described in section two of this article on the first day of July, two thousand three, the first day of July, two thousand four, the first day of July, two thousand five and the first day of July, two thousand six.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.

§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of medical benefits; payments of benefits during protest; right of division to collect payments improperly made.

(a) In any claim for benefits under this chapter, the workers' compensation division 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 decision.

(1) The division may enter an order conditionally approving the claimant's application if the division finds that obtaining additional medical evidence or evaluations or other evidence related to the issue of compensability would aid the division 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 may only recover the amount of such 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 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

(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 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 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 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 shall give to the parties immediate notice of any order granting temporary total disability or medical benefits.

(c) The division 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 enter an order granting prospective temporary total disability benefits for a period of more than ninety days: Provided, That when the division determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total disability benefits, the division 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 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 with this information within fifteen days from the date the division 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 obtains from reports made pursuant to section eleven, article ten, chapter twenty-one-a of this code. If no such wages have been reported, then the division shall make such payments at the rate the division finds would be justified by the usual rate of pay for the occupation of the injured employee. The division shall adjust the rate of benefits both retroactively and prospectively upon receipt of proper wage information. The division 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 that a claimant who has sustained a previous compensable injury which has been closed by any order of the division, or by the claimant's return to work, suffers further temporary total disability or requires further medical or hospital treatment resulting from the compensable injury, the division 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 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 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 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 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 the self-insured employer shall commence such payments by mailing or delivering the payments directly to the employee within ten days of the date of the receipt of the pay order by the employer. If the self- insured employer believes that its employee is entitled to benefits, the employer may start payments before receiving a pay order from the division.

(h) In the event that an employer files a timely objection to any order of the division with respect to compensability, or any order denying an application for modification with respect to temporary total disability benefits, or with respect to those expenses outlined in subsection (a), section three of this article, the division shall continue to pay to the claimant such benefits and expenses during the period of such disability. Where it is subsequently found by the division that the claimant was not entitled to receive such temporary total disability benefits or expenses, or any part thereof, so paid, the division shall, when the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment; and, when the employer has elected to carry its own risk, the division shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created in section one, article three of this chapter.

(i) 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 benefits or expenses, the amount of such benefits or expenses shall be considered overpaid. The division may only recover the amount of such benefits or expenses by withholding, in whole or in part, as determined by the division, future permanent partial disability benefits payable to the individual in the same or other claims and credit such amount against the overpayment until it is repaid in full.

(j) In the event that the division finds that based upon the employer's report of injury, the claim is not compensable, the division shall provide a copy of such employer's report to the claimant in addition to the order denying the claim.
§23-4-1d. Method and time of payments for permanent disability.

(a) If the division makes an award for permanent partial or permanent total disability, the division 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 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, 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 appeal is then filed by the employer or the division, the division 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 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 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 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 shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created by section one, article three of this chapter. If the final decision in any case determines that a claimant was not lawfully entitled to benefits paid to him or her pursuant to a prior decision, such amount of benefits so paid shall be deemed overpaid. The division may only recover such amount by withholding, in whole or in part, as determined by the division, future ~~permanent partial disability~~ benefits, as determined by the compensation programs performance council, payable to the individual in the same or other claims and credit such amount against the overpayment until it is repaid in full.
§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, and occurred on or after the effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, the employee shall receive during the continuance thereof a maximum weekly benefit to be computed on the basis of sixty six and two-thirds ~~seventy~~ 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~~ effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, 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 two thousand three ~~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 on or after the second day of February, one thousand nine hundred ninety-five, including those claims in which a request for an award was pending before the division or which were in litigation but not yet submitted for a decision, then benefits shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the provisions of the Social Security Act, 42 U.S.C. 401 and 402, in effect on the effective date of this section. Such a 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 day of February, one thousand nine hundred ninety-five, 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), subdivision (n) of this section: Provided, ~~however,~~ That the claimant must also be at least fifty ~~forty~~ percent medically impaired upon a whole body basis or has sustained a forty ~~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 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 on or after the second day of February, one thousand nine hundred ninety-five, 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: 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 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, 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, 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 makes the proper award for such injury, the division 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 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 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 by the health care advisory panel, the commissioner 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. 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, 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 with the assistance of the compensation programs performance council.

(1) Prior to the referral of any issue to the interdisciplinary examining board, the division 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 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 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, may submit reports from experts challenging or supporting the other reports in the record regardless of whether or not such an 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 determines that the number of applications pending before the board has exceeded the level at which the board can review and make recommendations within a reasonable time, then the council may authorize the commissioner to appoint such additional members to the board as may be necessary to reduce the backlog of applications. Such additional members shall be recommended by the health care advisory panel and the commissioner may make such 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 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 shall be served upon the parties and the division and 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 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 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.

(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 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 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 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 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 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, 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 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 injured employee if there be such 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 or ~~and~~ after the ~~second day of~~ ~~February, one thousand nine hundred ninety-five, and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five~~ effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, a claimant must have been awarded the sum of fifty ~~forty~~ 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 fifty ~~forty~~ percent or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section. ~~Upon filing such an application, the~~ Any such 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 fifty ~~forty~~ 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 forty ~~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 fifty ~~forty~~ 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 fifty ~~forty~~ percent or has sustained a forty ~~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 fifty ~~forty~~ percent whole body medical impairment or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section, then the review of the ~~application~~ claim 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 fifty ~~forty~~ percent or have sustained a forty ~~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 claim. 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. 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 fifty ~~forty~~ percent whole body medical impairment or has sustained a forty ~~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 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 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;

(D) Fifty percent for the fourth year: Provided, That in no event shall such benefits exceed one hundred percent of the average weekly wage in West Virginia. In no event shall such 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.

(5) It is the intent of the Legislature that the amendments to this section enacted during the regular session of the Legislature in the year two thousand three which change criteria for an award of permanent total disability benefits be applied from the date of enactment to all injuries incurred on and after the date of enactment, all occupational diseases, including occupational pneumoconiosis, with a date of last exposure on and after the date of enactment, and for all claims filed before the date of enactment in which eligibility for permanent total disability has not been determined on or before the date of enactment. The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund, and that although provisions of this subdivision may appear to be inconsistent with the provisions of the decision of the West Virginia Supreme Court of Appeals in the case of State ex rel. Blankenship v. Richardson, the Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances currently confronting the state, and that unless the changes to the criteria for an award of permanent total disability benefits provided by the enactment of the amendments to this section, as well as other legislation designed to address the problem, enacted during the regular session of the Legislature in the year two thousand three are made effective immediately, the fiscal stability of this State will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of the public fisc requires the limitations on any expectations that may have arisen from the prior enactment of this section.