ENROLLED
Senate Bill No. 1004
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Passed January 29, 2005; in effect from passage.]
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AN ACT to amend and reenact §4-11A-2 of the Code of West Virginia,
1931, as amended; to amend and reenact §11-9-2 of said Code;
to amend and reenact §11-10-3 of said Code; to amend said Code
by adding thereto a new article, designated §11-13V-1,
§11-13V-2, §11-13V-3, §11-13V-4, §11-13V-5, §11-13V-6,
§11-13V-7, §11-13V-8, §11-13V-9, §11-13V-10, §11-13V-11,
§11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15, §11-13V-16 and
§11-13V-17; to amend said Code by adding thereto a new
section, designated §11-21-96; to amend and reenact §23-1-1,
§23-1-1a, §23-1-1b, §23-1-1c, §23-1-1e, §23-1-11, §23-1-13,
§23-1-14, §23-1-15, §23-1-17 and §23-1-19 of said Code; to
amend said Code by adding thereto a new section, designated
§23-1-1g; to amend and reenact §23-2-1, §23-2-1d, §23-2-2,
§23-2-3, §23-2-4, §23-2-5, §23-2-5a and §23-2-9 of said Code;
to amend and reenact §23-2A-1 of said Code; to amend said Code by adding thereto a new article, designated §23-2C-1,
§23-2C-2, §23-2C-3, §23-2C-4, §23-2C-5, §23-2C-6, §23-2C-7,
§23-2C-8, §23-2C-9, §23-2C-10, §23-2C-11, §23-2C-12,
§23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16, §23-2C-17,
§23-2C-18, §23-2C-19, §23-2C-20, §23-2C-21, §23-2C-22 and
§23-2C-23; to amend said Code by adding thereto a new article,
designated §23-2D-1, §23-2D-2, §23-2D-3, §23-2D-4, §23-2D-5,
§23-2D-5a, §23-2D-6, §23-2D-7, §23-2D-8, §23-2D-9 and
§23-2D-10;
to amend and reenact §23-3-1 and §23-3-4 of said
Code; to amend and reenact §23-4-1b, §23-4-1c, §23-4-1d,
§23-4-1e, §23-4-3, §23-4-3b, §23-4-4, §23-4-6, §23-4-6a,
§23-4-6b, §23-4-7, §23-4-7a, §23-4-7b, §23-4-8, §23-4-8a,
§23-4-8b, §23-4-8c, §23-4-9, §23-4-10, §23-4-11, §23-4-12,
§23-4-14, §23-4-15, §23-4-15a, §23-4-15b, §23-4-16, §23-4-16a,
§23-4-17, §23-4-20, §23-4-24 and §23-4-25 of said Code; to
amend and reenact §23-4A-1 and §23-4A-4 of said Code; to amend
said Code by adding thereto a new section, designated
§23-4A-9; to amend said Code by adding thereto a new section,
designated §23-4B-9; to amend and reenact §23-4C-5 of said
Code; to amend said Code by adding thereto a new section,
designated §23-4C-6; to amend and reenact §23-5-1, §23-5-2,
§23-5-3, §23-5-4, §23-5-5, §23-5-7, §23-5-8, §23-5-9,
§23-5-10, §23-5-11, §23-5-12 and §23-5-15 of said Code; to
amend and reenact §29-22A-10 and §29-22A-10b of said Code; to amend and reenact §33-1-2 and §33-1-10 of said Code; to amend
and reenact §33-2-10 and §33-2-20 of said Code; to amend and
reenact §33-41-2, §33-41-8 and §33-41-11 of said Code; and to
amend and reenact §61-3-24e, §61-3-24f, §61-3-24g and
§61-3-24h of said Code, all relating to workers' compensation
generally; reducing the unfunded liability of the workers'
compensation fund; providing existing and new revenue sources
therefor, including new and existing taxes; providing for
dissolution of workers' compensation commission; converting
state agency to employer-owned mutual insurance company;
providing for private carriers to offer workers' compensation
insurance; providing for employees of the commission to be
exempt from provisions of civil service coverage; providing
for transfer of fraud investigation and prosecution unit and
assets necessary for its operation; providing for transfer of
certain workers' compensation commission functions, rights,
responsibilities, employees and assets to the insurance
commissioner and the industrial council;
providing certain
civil remedies to commission, mutual company and private
carriers; providing for exemption from required coverage for
certain employers who cover their employees under federal
Longshore and Harbor Workers' Compensation Act; providing for
payment periods to be other than quarterly; providing
authority to enjoin employers from engaging in business when in default; requiring self-insured employers to obtain
insurance for catastrophic risks; providing for transfer of
authority over certain funds to the insurance commissioner;
providing for statutory subrogation of medical and indemnity
benefits; providing for expedited appeals to the office of
judges; authorizing negotiation for subrogation claims;
providing for capital and surplus requirements of employers'
mutual insurance company; providing for election of a board of
directors of employers' mutual insurance company; providing
for establishment of claims index to assist insurers;
providing for establishment and administration of certain
funds and accounts in state treasury; providing for adverse
risk assignment plan; providing, upon meeting of certain
criteria, for issuance of proclamation by the governor;
providing for preferential placement of any employee laid off
after transfer of functions; providing certain retraining and
other benefits; providing for novation of policies to new
employers mutual insurance company; providing for requirements
of a basic policy of workers' compensation insurance;
providing for setting of industrial insurance rates; providing
for collection of premiums; providing for transfer of
occupational pneumoconiosis board; providing for limitation of
liability for insurers providing workers' compensation
insurance and third-party administrators; providing for transfer of rules to be applicable to the industrial insurance
market; providing for transfer of certain assets to new mutual
insurance company; providing for termination of
interdisciplinary examining board and health care advisory
panel; providing for selection of occupational pneumoconiosis
board members by governor; providing for transfer of authority
over occupational pneumoconiosis board; providing for
negotiation of final settlement in workers' compensation
claims; providing terms of employment for chief administrative
law judge; making technical corrections throughout; providing
internal effective dates; providing for civil administrative
and criminal penalties; and making conforming changes
throughout.
Be it enacted by the Legislature of West Virginia:
That §4-11A-2
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §11-9-2 of said Code be amended and
reenacted; that §11-10-3 of said Code be amended and reenacted;
that said Code be amended by adding thereto a new article,
designated §11-13V-1, §11-13V-2, §11-13V-3, §11-13V-4, §11-13V-5,
§11-13V-6, §11-13V-7, §11-13V-8, §11-13V-9, §11-13V-10, §11-13V-11,
§11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15, §11-13V-16 and
§11-13V-17; that said Code be amended and reenacted by adding
thereto a new section, designated §11-21-96; that §23-1-1,
§23-1-1a, §23-1-1b, §23-1-1c, §23-1-1e, §23-1-11, §23-1-13, §23-1-14, §23-1-15, §23-1-17 and §23-1-19 of said Code be amended
and reenacted; that said Code be amended by adding thereto a new
section, designated §23-1-1g; that §23-2-1, §23-2-1d, §23-2-2,
§23-2-3, §23-2-4, §23-2-5, §23-2-5a and §23-2-9 of said Code be
amended and reenacted; that §23-2A-1 of said Code be amended and
reenacted; that said Code be amended by adding thereto a new
article, designated §23-2C-1, §23-2C-2, §23-2C-3, §23-2C-4,
§23-2C-5, §23-2C-6, §23-2C-7, §23-2C-8, §23-2C-9, §23-2C-10,
§23-2C-11, §23-2C-12, §23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16,
§23-2C-17, §23-2C-18, §23-2C-19, §23-2C-20, §23-2C-21, §23-2C-22
and §23-2C-23; that said Code be amended by adding thereto a new
article, designated §23-2D-1, §23-2D-2, §23-2D-3, §23-2D-4,
§23-2D-5, §23-2D-5a, §23-2D-6, §23-2D-7, §23-2D-8, §23-2D-9 and
§23-2D-10; that §23-3-1 and §23-3-4 of said Code be amended and
reenacted; that §23-4-1b, §23-4-1c, §23-4-1d, §23-4-1e, §23-4-3,
§23-4-3b, §23-4-4, §23-4-6, §23-4-6a, §23-4-6b, §23-4-7, §23-4-7a,
§23-4-7b, §23-4-8, §23-4-8a, §23-4-8b, §23-4-8c, §23-4-9, §23-4-10,
§23-4-11, §23-4-12, §23-4-14, §23-4-15, §23-4-15a, §23-4-15b,
§23-4-16, §23-4-16a, §23-4-17, §23-4-20, §23-4-24 and §23-4-25 of
said Code be amended and reenacted; that §23-4A-1 and §23-4A-4 of
said Code be amended and reenacted; that said Code be amended by
adding thereto a new section, designated §23-4A-9; that said Code
be amended by adding thereto a new section, designated §23-4B-9;
that §23-4C-5 of said Code be amended and reenacted; that said Code be amended by adding thereto a new section, designated §23-4C-6;
that §23-5-1, §23-5-2, §23-5-3, §23-5-4, §23-5-5, §23-5-7, §23-5-8,
§23-5-9, §23-5-10, §23-5-11, §23-5-12 and §23-5-15 of said Code be
amended and reenacted; that §29-22A-10 and §29-22A-10b of said Code
be amended and reenacted; that §33-1-2 and §33-1-10 of said Code be
amended and reenacted; that §33-2-10 and §33-2-20 of said Code be
amended and reenacted; that §33-41-2, §33-41-8 and §33-41-11 of
said Code be amended and reenacted; and that §61-3-24e, §61-3-24f,
§61-3-24g and §61-3-24h of said Code be amended and reenacted, all
to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT
MONEYS.
§4-11A-2. Receipt of settlement funds and required deposit in
West Virginia tobacco settlement medical trust
fund until the first day of June, two thousand
five, then to workers' compensation deficit
reduction fund.
(a) The Legislature finds and declares that certain dedicated
revenues should be preserved in trust for the purpose of
stabilizing the state's health related programs and delivery
systems. It further finds and declares that these dedicated
revenues should be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and
establishing a program designed to reduce and stop the use of
tobacco by the citizens of this state and in particular by
teenagers.
(b) There is hereby created a special account in the state
treasury, designated the "West Virginia Tobacco Settlement Medical
Trust Fund", which shall be an interest-bearing account and may be
invested in the manner permitted by section nine, article six,
chapter twelve of this code, with the interest income a proper
credit to the fund. Unless contrary to federal law, fifty percent
of all revenues received pursuant to the master settlement
agreement shall be deposited in this fund. Funds paid into the
account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which
may be received from any governmental entity or unit or any person,
firm, foundation or corporation;
(3) Any appropriations by the Legislature which may be made
for this purpose; and
(4) Any funds or accrued interest remaining in the board of
risk and insurance management physicians' mutual insurance company
account created pursuant to section seven, article twenty-f,
chapter thirty-three of this code on or after the first day of
July, two thousand four.
(c) The moneys from the principal in the trust fund may not be
expended for any purpose, except that on the first day of April,
two thousand three, the treasurer shall transfer to the board of
risk and insurance management physicians' mutual insurance company
account created by section seven, article twenty-f, chapter
thirty-three of this code, twenty-four million dollars from the
West Virginia tobacco settlement medical trust fund for use as the
initial capital and surplus of the physicians' mutual insurance
company created pursuant to said article. The remaining moneys in
the trust fund resulting from interest earned on the moneys in the
fund and the return on investments of the moneys in the fund shall
be available only upon appropriation by the Legislature as part of
the state budget and expended in accordance with the provisions of
section three of this article.
(d) Notwithstanding the preceding subsections to the contrary,
the first thirty million dollars of all revenues received after the
thirtieth day of June, two thousand five, pursuant to section
IX(c)(1) of the tobacco master settlement agreement shall in the
fiscal year beginning the first day of July, two thousand five, and
each fiscal year thereafter, be deposited in the workers'
compensation debt reduction fund established in the state treasury
in section five, article two-d, chapter twenty-three of this code.
Receipts in excess of thirty million dollars shall be deposited as
provided in section three of this article.
(e) Notwithstanding anything in this code to the contrary,
strategic compensation payments received pursuant to section
IX(c)(2) of the tobacco master settlement agreement, beginning in
two thousand eight, shall be deposited in their entirety in the
workers' compensation debt reduction fund.
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following
taxes imposed by this chapter:
(1) Inheritance and transfer taxes and estate taxes imposed by
article eleven of this chapter;
(2) Business registration tax imposed by article twelve of
this chapter;
(3) Minimum severance tax on coal imposed by article twelve-b
of this chapter;
(4) Corporate license tax imposed by article twelve-c of this
chapter;
(5) Business and occupation tax imposed by article thirteen of
this chapter;
(6) Severance and business privilege taxes imposed by article
thirteen-a of this chapter;
(7) Additional severance taxes imposed by article thirteen-v
of this chapter;
(8) Telecommunications tax imposed by article thirteen-b of
this chapter;
(9) Gasoline and special fuels excise tax imposed by article
fourteen of this chapter;
(10) Motor fuels excise tax imposed by article fourteen-c of
this chapter;
(11) Motor carrier road tax imposed by article fourteen-a of
this chapter;
(12) Interstate fuel tax agreement authorized by article
fourteen-b of this chapter;
(13) Consumers sales and service tax imposed by article
fifteen of this chapter;
(14) Use tax imposed by article fifteen-a of this chapter;
(15) Tobacco products excise taxes imposed by article
seventeen of this chapter;
(16) Soft drinks tax imposed by article nineteen of this
chapter;
(17) Personal income tax imposed by article twenty-one of this
chapter;
(18) Business franchise tax imposed by article twenty-three of
this chapter;
(19) Corporation net income tax imposed by article twenty-four
of this chapter; and
(20) Health care provider taxes imposed by article twenty-seven of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter and to any other articles of this chapter when
application is expressly provided by the Legislature.
(c) The provisions of this article also apply to municipal
sales and use taxes imposed pursuant to article thirteen-c, chapter
eight of this code; the charitable bingo fee imposed by sections
six and six-a, article twenty, chapter forty-seven of this code;
the charitable raffle fee imposed by section seven, article
twenty-one of said chapter; and the charitable raffle boards and
games fees imposed by section three, article twenty-three of said
chapter.
(d) Each and every provision of this article applies to the
articles of this chapter listed in subsections (a), (b) and (c) of
this section, with like effect, as if the provisions of this
article were applicable only to the tax and were set forth in
extenso in this article.
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-3. Application of this article.
(a) The provisions of this article apply to inheritance and
transfer taxes, estate tax and interstate compromise and
arbitration of inheritance and death taxes, business registration
tax, minimum severance tax on coal, corporate license tax, business and occupation tax, severance tax, additional severance taxes,
telecommunications tax, interstate fuel tax, consumers sales and
service tax, use tax, tobacco products excise taxes, soft drinks
tax, personal income tax, business franchise tax, corporation net
income tax, gasoline and special fuels excise tax, motor fuels
excise tax, motor carrier road tax, health care provider taxes and
tax relief for elderly homeowners and renters administered by the
state tax commissioner. This article shall not apply to ad valorem
taxes on real and personal property or any other tax not listed in
this section, except that in the case of ad valorem taxes on real
and personal property, when any return, claim, statement or other
document is required to be filed, or any payment is required to be
made within a prescribed period or before a prescribed date, and
the applicable law requires delivery to the office of the sheriff
of a county of this state, the methods prescribed in section five-f
of this article for timely filing and payment to the tax
commissioner or state tax department are the same methods utilized
for timely filing and payment with the sheriff.
(b) The provisions of this article apply to beer barrel tax
levied by article sixteen of this chapter; and to wine liter tax
levied by section four, article eight, chapter sixty of this code.
(c) The provisions of this article apply to any other article
of this chapter when the application is expressly provided by the
Legislature.
(d) The provisions of this article apply to municipal sales
and use taxes imposed under article thirteen-c, chapter eight of
this code and collected by the tax commissioner.
ARTICLE 13V. WORKERS' COMPENSATION DEBT REDUCTION ACT.
§11-13V-1. Short title.
This article may be cited as the "Workers' Compensation Debt
Reduction Act of 2005". No inference, implication or presumption
of legislative construction shall be drawn or made by reason of the
location or grouping of any particular section or provision or
portion of this article and no legal effect shall be given to any
descriptive matter of headings relating to any part, section,
subsection, subdivision or paragraph of this article.
§11-13V-2. Legislative intent and findings.
(a) Legislative intent. -- It is the intent of the Legislature
in enacting this article to impose new, additional privilege taxes
on severing or producing natural resources in this state and for
the net proceeds from collection of the new taxes to be dedicated
to paying down the unfunded liability in the workers' compensation
fund, or paying debt service on bonds sold to raise funds to pay
down the unfunded liability in the workers' compensation fund, or
for any combination of these two purposes.
(b) Findings. -- The Legislature finds and declares that:
(1) The unfunded liability in the state workers' compensation
program exceeds three billion dollars;
(2) Until a fiscally responsible plan for paying this unfunded
liability is provided by the Legislature, the condition of the
workers' compensation fund will continue to negatively affect
economic development in this state;
(3) Until a fiscally responsible plan for paying this unfunded
liability is provided by the Legislature, the Legislature will not
be able to privatize workers' compensation;
(4) Until a fiscally responsible plan for paying this unfunded
liability is provided, the Legislature will need to annually
appropriate dollars from the general revenue fund of the state to
pay down this unfunded liability and to cover the annual shortfall
between funds available to pay workers' compensation benefits to
injured workers and premiums collected by the workers' compensation
fund from employers;
(5) In accordance with the constitution of this state and
decisions of the West Virginia supreme court of appeals, the
Legislature may enact a new tax and dedicate the net collections of
the tax to pay down this unfunded liability or to pay debt service
on bonds sold by the state to raise funds to pay down this unfunded
liability.
§11-13V-3. Definitions.
All definitions set forth in articles twelve-d and article
thirteen-a of this chapter apply to those defined terms that also
appear in this article, if applicable.
§11-13V-4. Imposition of tax.
(a) Imposition of additional tax on privilege of severing
coal. -- Upon every person exercising the privilege of engaging
within this state in severing, extracting, reducing to possession
or producing coal for sale, profit or commercial use, there is
hereby imposed an additional annual severance tax for exercising
the privilege after the thirtieth day of November, two thousand
five. The tax shall be fifty-six cents per ton and the measure of
the tax is tons of clean coal severed or produced in this state by
the taxpayer after the thirtieth day of November, two thousand
five, for sale, profit or commercial use during the taxable year.
When the person mining the coal sells raw coal, the measure of tax
shall be ton of clean coal determined in accordance with rules
promulgated by the tax commissioner as provided in article three,
chapter twenty-nine-a of this code. If this rule is filed for
public comment before the first day of July, two thousand five, the
rule may be promulgated as an emergency legislative rule. This tax
shall be in addition to all taxes imposed with respect to the
severance and production of coal in this state including, but not
limited to, the taxes imposed by articles twelve-d and thirteen-a
of this chapter and the taxes imposed by sections eleven and
thirty-two, article three, chapter twenty-two of this code, if
applicable.
(b) Imposition of additional tax on privilege of severing natural gas. -- For the privilege of engaging or continuing within
this state in the business of severing natural gas for sale, profit
or commercial use, there is hereby levied and shall be collected
from every person exercising this privilege an additional annual
privilege tax. The rate of this additional tax shall be four and
seven-tenths cents per mcf of natural gas and the measure of the
tax is natural gas produced after the thirtieth day of November,
two thousand five, determined at the point where the production
privilege ends for purposes of the tax imposed by section three-a,
article thirteen-a of this chapter, and with respect to which the
tax imposed by section three-a of said article thirteen-a is paid.
The additional tax imposed by this subsection shall be collected
with respect to natural gas produced after the thirtieth day of
November, two thousand five.
(c) Imposition of additional tax on privilege of severing
timber. -- For the privilege of engaging or continuing within this
state in the business of severing timber for sale, profit or
commercial use, there is hereby levied and shall be collected from
every person exercising this privilege an additional annual
privilege tax equal to two and seventy-eight hundredths percent of
the gross value of the timber produced, determined at the point
where the production privilege ends for purposes of the tax imposed
by section thirteen-b, article thirteen-a of this chapter and upon
which the tax imposed by section three-b of said article thirteen-a is paid. The additional tax imposed by this subsection shall be
collected with respect to timber produced after the thirtieth day
of November, two thousand five.
(d) No pyramiding of tax burden. -- Each ton of coal and each
mcf of natural gas severed in this state after the effective date
of the taxes imposed by this section shall be included in the
measure of a tax imposed by this section only one time.
(e) Effect on utility rates. -- The public service commission
shall, upon the application of any public utility that, as of the
effective date of the taxes imposed by this section, is not
currently making periodic adjustments to its approved rates and
charges to reflect changes in its fuel costs because the mechanism
historically used to make such periodic adjustments is suspended by
an order of the commission, allow such utility to defer, for future
recovery from its customers, any increase in its costs attributable
to the taxes imposed by this section upon: coal and natural gas
severed in this state and utilized in the production of electricity
generated or produced in this state and sold to customers in this
state; coal and natural gas severed in this state and utilized in
the production of electricity not generated or produced in this
state that is sold to customers in this state; and natural gas
severed in this state that is sold to customers in this state.
(f) Dedication of new taxes. -- The net amount of all monies
received by the tax commissioner from collection of the taxes imposed by this section, including any interest, additions to tax,
or penalties collected with respect to these taxes pursuant to
article ten, chapter eleven of this code, shall be deposited in the
workers' compensation debt reduction fund created in article two-d,
chapter twenty-three of this code. As used in this section, "net
amount of all taxes received by the tax commissioner" means the
gross amount received by the tax commissioner less the amount of
any refunds paid for overpayment of the taxes imposed by this
article, including the amount of any interest on the overpayment
amount due the taxpayer under the provisions of section fourteen,
article ten of this chapter.
(g) Sunset expiration date of taxes. -- The new taxes imposed
by this section shall expire and not be imposed with respect to
privileges exercised on and after the first day of the month
following the month in which the governor certifies to the
Legislature that: (1) The revenue bonds issued pursuant to article
two-d, chapter twenty-three of this code, have been retired, or
payment of the debt service provided for; and (2) that an
independent certified actuary has determined that the unfunded
liability of the old fund, as defined in chapter twenty-three of
this code, has been paid or provided for in its entirety.
Expiration of the taxes imposed in this section as provided in this
subsection shall not relieve any person from payment of any tax
imposed with respect to privileges exercised before the expiration date.
§11-13V-5. Accounting periods and methods of accounting.
(a) General rule. -- For purposes of the taxes imposed by this
article, a taxpayer's taxable year shall be the same as the
taxpayer's taxable year for federal income tax purposes. If
taxpayer has no taxable year for federal income tax purposes, then
the calendar year shall be taxpayer's taxable year under this
article.
(b) Change of taxable year. -- If a taxpayer's taxable year is
changed for federal income tax purposes, taxpayer's taxable year
for purposes of this article is similarly changed. The taxpayer
shall provide a copy of the authorization for the change from the
internal revenue service, with taxpayer's annual return for the
taxable year filed under this article.
(c) Methods of accounting same as federal. --
(1) Same as federal. -- A taxpayer's method of accounting
under this article shall be the same as the taxpayer's method of
accounting for federal income tax purposes. In the absence of any
method of accounting for federal income tax purposes, the accrual
method of accounting shall be used, unless the tax commissioner, in
writing, consents to the use of another method. Accrual basis
taxpayers may deduct bad debts only in the year to which they
relate.
(2) Change of accounting methods. -- If a taxpayer's method of accounting is changed for federal income tax purposes, the
taxpayer's method of accounting for purposes of this article is
similarly changed. The taxpayer shall provide a copy of the
authorization for the change from the internal revenue service with
its annual return for the taxable year filed under this article.
(d) Adjustments. -- In computing a taxpayer's liability for
tax for any taxable year under a method of accounting different
from the method under which the taxpayer's liability for tax under
this article for the previous year was computed, there shall be
taken into account those adjustments which are determined, under
rules promulgated by the tax commissioner in accordance with
article three, chapter twenty-nine-a of this code, to be necessary
solely by reason of the change in order to prevent amounts from
being duplicated or omitted.
§11-13V-6. Time for filing annual returns and other documents.
On or before the expiration of one month after the end of the
taxable year, every taxpayer subject to a tax imposed by this
article shall make and file an annual return for the entire taxable
year showing all information the tax commissioner requires and
computing the amount of taxes due under this article for the
taxable year. Returns made on the basis of a calendar year shall
be filed on or before the thirty-first day of January following the
close of the calendar year. Returns made on the basis of a fiscal
year shall be filed on or before the last day of the first month following the close of the fiscal year.
§11-13V-7. Periodic installment payments of taxes imposed by this
article; exceptions.
(a) General rule. -- Except as provided in subsection (b) of
this section, taxes levied by this article are due and payable in
periodic installments as follows:
(1) Tax of fifty dollars or less per month. -- If a person's
aggregate annual tax liability under this article and article
thirteen-a of this chapter is reasonably expected to be fifty
dollars or less per month, no installment payments of tax are
required under this section during that taxable year.
(2) Tax of more than one thousand dollars per month. -- For
taxpayers whose aggregate estimated tax liability under this
article and article thirteen-a of this chapter exceeds one thousand
dollars per month, the tax is due and payable in monthly
installments on or before the last day of the month following the
month in which the tax accrued: Provided, That the installment
payment otherwise due under this subdivision on or before the
thirtieth day of June each year shall be remitted to the tax
commissioner on or before the fifteenth day of June each year.
When this subdivision applies, the taxpayer shall, on or before the
due date specified in this subdivision, make out an estimate of the
tax for which the taxpayer is liable for the preceding month, sign
the estimate and mail it together with a remittance, in the form prescribed by the tax commissioner, of the amount of tax due to the
office of the tax commissioner: Provided, however, That the
installment payment otherwise due under this paragraph on or before
the thirtieth day of June each year shall be remitted to the tax
commissioner on or before the fifteenth day of June.
(3) Tax of one thousand dollars per month or less. -- For
taxpayers whose estimated tax liability under this article is one
thousand dollars per month or less, the tax is due and payable in
quarterly installments on or before the last day of the month
following the quarter in which the tax accrued. When this
subdivision applies, the taxpayer shall, on or before the last day
of the fourth, seventh and tenth months of the taxable year, make
out an estimate of the tax for which the taxpayer is liable for the
preceding quarter, sign the same and mail it together with a
remittance, in the form prescribed by the tax commissioner, of the
amount of tax due to the office of the tax commissioner.
(b) Exception. -- Notwithstanding the provisions of subsection
(a) of this section, the tax commissioner, if he or she considers
it necessary to ensure payment of the tax, may require the return
and payment under this section for periods of shorter duration than
those prescribed in subsection (a) of this section.
(c) Remittance by electronic funds transfer. -- When the
taxpayer's annual aggregate liability for tax under this article
and article thirteen-a of this chapter exceeds fifty thousand dollars for the prior tax year, payments of estimated tax required
by this article and article thirteen-a during the then current tax
year shall be by electronic funds transfer, in accordance with
rules of the tax commissioner and rules of the state treasurer,
except as otherwise permitted by the tax commissioner.
§11-13V-8. Extension of time for filing returns.
The tax commissioner may, upon written request received on or
prior to the due date of the annual return or any periodic
estimate, grant a reasonable extension of time for filing any
return or other document required by this article, upon such terms
as he or she may by rule prescribe, or by contract require, if good
cause satisfactory to the tax commissioner is provided by the
taxpayer.
§11-13V-9. Extension of time for paying tax.
(a) Amount determined on return. -- The tax commissioner may
extend the time for payment of the amount of the tax shown, or
required to be shown, on any return required by this article (or
any periodic installment payments), for a reasonable period not to
exceed six months from the date fixed for payment thereof.
(b) Amount determined as deficiency. -- Under rules prescribed
by the tax commissioner in accordance with the provisions of
article three, chapter twenty-nine-a of this code, the commissioner
may extend the time for the payment of the amount determined as a
deficiency of the taxes imposed by this article for a period not to exceed eighteen months from the date fixed for payment of the
deficiency. In exceptional cases, a further period of time not to
exceed twelve months may be granted. An extension under this
subsection may be granted only where it is shown to the
satisfaction of the tax commissioner that payment of a deficiency
upon the date fixed for the payment thereof will result in undue
hardship to the taxpayer.
(c) No extension for certain deficiencies. -- No extension may
be granted under this section for any deficiency if the deficiency
is due to negligence, to intentional disregard of rules and
regulations, or to fraud with intent to evade tax.
§11-13V-10. Place for filing returns or other documents.
Tax returns, statements or other documents, or copies thereof,
required by this article, or rules promulgated by the commissioner,
shall be filed with the tax commissioner by delivery, in person or
by mail, to his or her office in Charleston, West Virginia:
Provided, That the tax commissioner may, by rules, prescribe the
place and other means of delivery for filing such returns,
statements, or other documents, or copies thereof.
§11-13V-11. Time and place for paying tax shown on returns.
(a) General rule. -- The person required to make the annual
return required by this article shall, without assessment or notice
and demand from the tax commissioner, pay the tax at the time and
place fixed for filing the return (determined without regard to any extension of time for filing the return).
(b) Date fixed for payment of tax. -- The date fixed for
payment of the taxes imposed by this article shall be deemed to be
a reference to the last day fixed for the payment (determined
without regard to any extension of time for paying the tax).
(c) Terms of extension. -- Any extension of time for payment
of tax under this section may be granted upon such terms as the tax
commissioner may, by rule prescribe, or by contract require.
§11-13V-12. Signing of returns and other documents.
(a) General. -- Any return, statement or other document
required to be made under the provisions of this article shall be
signed in accordance with instructions or regulations prescribed by
the tax commissioner.
(b) Signing of corporation returns. -- The return of a
corporation shall be signed by the president, vice president,
treasurer, assistant treasurer, chief accounting officer or any
other officer duly authorized so to act. In the case of a return
made for a corporation by a fiduciary, the fiduciary shall sign the
return. The fact that an individual's name is signed on the return
shall be prima facie evidence that such individual is authorized to
sign the return on behalf of the corporation.
(c) Signing of partnership returns. -- The return of a
partnership shall be signed by any one of the partners. The fact
that a partner's name is signed on the return shall be prima facie evidence that such partner is authorized to sign the return on
behalf of the partnership.
(d) Signing of limited liability company returns. -- The
return of a limited liability company shall be signed by any one of
its authorized members. The fact that a member's name is signed on
the return shall be prima facie evidence that the member is
authorized to sign the return on behalf of the limited liability
company.
(e) Signature presumed authentic. -- The fact that an
individual's name is signed to a return, statement or other
document shall be prima facie evidence for all purposes that the
return, statement or other document was actually signed by him or
her.
(f) Verification of returns. -- Except as otherwise provided
by the tax commissioner, any return, declaration or other document
required to be made under this article shall contain or be verified
by a written declaration that it is made under the penalties of
perjury.
§11-13V-13. Bond of taxpayer may be required.
(a) Whenever it is deemed necessary to ensure compliance with
this article, the tax commissioner may require any taxpayer to post
a cash or corporate surety bond.
(b) The amount of the bond shall be fixed by the tax
commissioner but, except as provided in subsection (c) of this section, shall not be greater than three times the average
quarterly liability of taxpayers filing returns for quarterly
periods, five times the average monthly liability of taxpayers
required to file returns for monthly periods, or two times the
average periodic liability of taxpayers permitted or required to
file returns for other than monthly or quarterly periods.
(c) Notwithstanding the provisions of subsection (b) of this
section, no bond required under this section shall be less than
five hundred dollars.
(d) The amount of the bond may be increased or decreased by
the tax commissioner at any time subject to the limitations
provided in this section.
(e) The tax commissioner may bring an action for a restraining
order or a temporary or permanent injunction to restrain or enjoin
the operation of a taxpayer's business until the bond is posted and
any delinquent tax, including applicable interest and additions to
tax has been paid. This action may be brought in the circuit court
of Kanawha County or in the circuit court of any county having
jurisdiction over the taxpayer.
§11-13V-14. Collection of tax; agreement for processor to pay tax
due from severor.
(a) General. -- In the case of natural resources, other than
natural gas, where the tax commissioner finds that it would
facilitate and expedite the collection of the taxes imposed by this article, the tax commissioner may authorize the taxpayer processing
the natural resource to report and pay the tax which would be due
from the taxpayer severing the natural resources. The agreement
shall be in the form prescribed by or acceptable to the tax
commissioner.
(1) The agreement must be signed:
(A) By the owner, if the taxpayer is a natural person;
(B) In the case of a partnership, limited liability company or
association, by a partner or member;
(C) In the case of a corporation, by an executive officer or
some person specifically authorized by the corporation to sign the
agreement.
(2) The agreement may be terminated by any party to the
agreement upon giving thirty days' written notice to the other
parties to the agreement: Provided, That the tax commissioner may
terminate the agreement immediately upon written notice to the
other parties when either the taxpayer processing the natural
resource or the taxpayer severing the natural resource fails to
comply with the terms of the agreement.
(b) Natural gas. --
(1) In the case of natural gas, except for those cases:
(A) Where the person severing (or both severing and
processing) the natural gas will sell the gas to the ultimate
consumer; or
(B) Where the tax commissioner determines that the collection
of taxes due under this article would be accomplished in a more
efficient and effective manner through the severor, or severor and
processor, remitting the taxes, the first person to purchase the
natural gas after it has been severed, or in the event that the
natural gas has been severed and processed before the first sale,
the first person to purchase natural gas after it has been severed
and processed, shall be liable for the collection of the taxes
imposed by this article. That person shall collect the taxes
imposed from the person severing (or severing and processing) the
natural gas, and that person shall remit the taxes to the tax
commissioner;
(C) In those cases where the person severing (or severing and
processing) the natural gas sells the gas to the ultimate consumer,
the person so severing (or severing and processing) the natural gas
shall be liable for the taxes imposed by this article;
(D) In those cases where the tax commissioner determines that
the collection of the taxes due under this article from the person
severing the natural gas, or severing and processing the natural
gas would be accomplished in a more efficient and effective manner
through the severor (or severor and processor) remitting the taxes,
the tax commissioner shall set out his or her determination in
writing, stating his or her reasons for so finding, and so advise
the severor (or severor and processor) at least fifteen days in advance of the first reporting period for which the commissioner's
determination is effective.
(2) On or before the last day of the month following each
taxable calendar month, the person first purchasing natural gas, as
described in subdivision (1) of this subsection, shall report
purchases of natural gas during the taxable month, showing the
quantities of gas purchased, the price paid, the date of purchase,
and any other information considered necessary by the tax
commissioner for the administration of the tax imposed by this
article, and shall pay the amount of tax due, on forms prescribed
by the tax commissioner.
(3) On or before the last day of the month following each
taxable calendar month, each person severing (or severing and
processing) natural gas, shall report the sales of natural gas,
showing the name and address of the person to whom sold, the
quantity of gas sold, the date of sale and the sales price on forms
prescribed by the tax commissioner.
§11-13V-15. Records.
(a) General. -- Every person liable for reporting or paying
tax under this article shall keep records, receipts, invoices and
other pertinent papers in the form required by the tax
commissioner.
(b) Period of retention. -- Every taxpayer shall keep the
records for a tax year for a period of not less than three years after the annual return is filed under this article, unless the tax
commissioner, in writing, authorizes their earlier destruction. An
extension of time for making an assessment automatically extends
the time period for keeping the records for all years subject to
audit covered in the agreement for extension of time.
(c) Special rule for purchasers of standing timber or of logs.
-- In addition to the records required by subsection (a) of this
section, every person purchasing standing timber, logs or wood
products sawn or chipped in conjunction with a timber harvesting
operation in this state shall obtain from the person from whom the
standing timber, logs or wood products sawn or chipped in
conjunction with a timbering harvest operation are purchased a true
copy of the seller's then current business registration certificate
issued under article twelve of this chapter or a copy of federal
form 1099 for the year of the purchase. When the seller is a
person not required by this chapter to have a business registration
certificate, the purchaser shall obtain an affidavit from the
seller:
(1) Stating that the seller does not have a business
registration certificate and that the seller is not required by
this chapter to have a business registration certificate;
(2) Listing the seller's social security number or federal
employer identification number; and
(3) Listing the seller's current mailing address. The tax commissioner may develop a form for this affidavit.
§11-13V-16. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure
and Administration Act" set forth in article ten of this chapter
applies to the taxes imposed by this article, except as otherwise
expressly provided in this article, with like effect as if that act
were applicable only to the taxes imposed by this article and were
set forth in extenso in this article.
§11-13V-17. Crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes and
Penalties Act" set forth in article nine of this chapter applies to
the taxes imposed by this article with like effect as if that act
were applicable only to the taxes imposed by this article and were
set forth in extenso in this article.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-96. Dedication of personal income tax proceeds.
(a) There is hereby dedicated an annual amount of forty-five
million dollars from annual collections of the tax imposed by this
article for payment of the unfunded liability of the current
workers compensation fund. No portion of this amount may be
pledged for payment of debt service on revenue bonds issued
pursuant to article two-d, chapter twenty-three of this code.
(b) Notwithstanding any other provision of this code to the
contrary, beginning in January of two thousand six, forty-five million dollars from collections of the tax imposed by this article
shall be deposited each calendar year to the credit of the old fund
created in article two-c, chapter twenty-three of this code, in
accordance with the following schedule. Each calendar month,
except for July, August and September each year, five million
dollars shall be transferred, on or before the twenty-eighth day of
the month, to the workers' compensation debt reduction fund created
in article two-d, chapter twenty-three of this code.
(c) Expiration. -- The transfers required by this section
shall continue to be made until the governor certifies to the
Legislature that an independent actuary study determined that the
unfunded liability of the old fund, as defined in chapter twenty-
three of this code, has been paid or provided for in its entirety.
No transfer pursuant to this section shall be made thereafter.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
(a) The Legislature finds that a deficit exists in the
workers' compensation fund of such critical proportions that it
constitutes an imminent threat to the immediate and long-term
solvency of the fund and constitutes a substantial deterrent to the
economic development of this state. The Legislature further finds
that addressing the workers' compensation crisis requires the
efforts of all persons and entities involved and resolution of the crisis is in the best interest of the public. Modification to the
rate system, alteration of the benefit structure, improvement of
current management practices and changes in perception must be
merged into a unified effort to make the workers' compensation
system viable and solvent through the mutualization of the system
and the opening of the market to private workers' compensation
insurance carriers. It was and remains the intent of the
Legislature that the amendments to this chapter enacted in the year
two thousand three be applied from the date upon which the
enactment was made effective by the Legislature. The Legislature
finds that an emergency exists as a result of the combined effect
of this deficit, other state budgetary deficits and liabilities and
other grave social and economic circumstances currently confronting
the state and that unless the changes provided by the enactment of
the amendments to this chapter, as well as other legislation
designed to address the problem are made effective immediately, the
fiscal stability of this state will suffer irreparable harm.
Accordingly, the Legislature finds that the need of the citizens of
this state for the protection of the state treasury and the
solvency of the workers' compensation funds requires the
limitations on any expectations that may have arisen from prior
enactments of this chapter.
(b) It is the further intent of the Legislature that this
chapter be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a
reasonable cost to the employers who are subject to the provisions
of this chapter. It is the specific intent of the Legislature that
workers' compensation cases shall be decided on their merits and
that a rule of "liberal construction" based on any "remedial" basis
of workers' compensation legislation shall not affect the weighing
of evidence in resolving such cases. The workers' compensation
system in this state is based on a mutual renunciation of common
law rights and defenses by employers and employees alike.
Employees' rights to sue for damages over and above medical and
health care benefits and wage loss benefits are to a certain degree
limited by the provisions of this chapter and employers' rights to
raise common law defenses such as lack of negligence, contributory
negligence on the part of the employee, and others, are curtailed
as well. Accordingly, the Legislature hereby declares that any
remedial component of the workers' compensation laws is not to
cause the workers' compensation laws to receive liberal
construction that alters in any way the proper weighing of evidence
as required by section one-g, article four of this chapter.
(c) The "workers' compensation division of the bureau of
employment programs" is, on or after the first day of October, two
thousand three, reestablished, reconstituted and continued as the
workers' compensation commission, an agency of the state. The
purpose of the commission is to ensure the fair, efficient and financially stable administration of the workers' compensation
system of the state of West Virginia. The powers and duties
heretofore imposed upon the workers' compensation division and the
commissioner of the bureau of employment programs as they relate to
workers' compensation are hereby transferred to and imposed upon
the workers' compensation commission and its executive director in
the manner prescribed by this chapter.
(d) It is the intent of the Legislature that the transfer of
the administration of the workers' compensation system of this
state from the workers' compensation division under the
commissioner of the bureau of employment programs to the workers'
compensation commission under its executive director and the
workers' compensation board of managers is to become effective the
first day of October, two thousand three. Any provisions of the
enactment of Enrolled Senate Bill No. 2013 in the year two thousand
three relating to the transfer of the administration of the
workers' compensation system of this state that conflict with the
intent of the Legislature as described in this subsection shall, to
that extent, become operative on the first day of October, two
thousand three, and until that date, prior enactments of this code
in effect on the effective date of Enrolled Senate Bill No. 2013
relating to the administration of the workers' compensation system
of this state, whether amended and reenacted or repealed by the
passage of Enrolled Senate Bill No. 2013, have full force and effect. All provisions of the enactment of Enrolled Senate Bill
No. 2013 in the year two thousand three relating to matters other
than the transfer of the administration of the workers'
compensation system of this state shall become operative on the
effective date of that enactment, unless otherwise specifically
provided in that enactment.
§23-1-1a. Workers' compensation board of managers; appointment;
composition; qualifications; terms; chairperson;
meetings and quorum; compensation and travel
expenses; powers and duties.
(a) On the first day of October, two thousand three, the
compensation programs performance council heretofore established in
article three, chapter twenty-one-a of this code is hereby
abolished and there is hereby created the "workers' compensation
board of managers", which may also be referred to as "the board of
managers" or "the board".
(b) (1) The board shall consist of eleven voting members as
follows:
(A) The governor or his or her designee;
(B) The chief executive officer of the West Virginia
investment management board; if required to attend more than one
meeting per month, he or she may send a designee to the additional
meetings;
(C) The executive director of the West Virginia development office; if required to attend more than one meeting per month, he
or she may send a designee to the additional meetings; and
(D) Eight members appointed by the governor with the advice
and consent of the Senate who meet the requirements and
qualifications prescribed in subsections (c) and (d) of this
section: Provided, That the members serving on the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code on the effective date of
the enactment of this section in two thousand three are hereby
appointed as members of the board of managers subject to the
provisions of subdivision (1), subsection (c) of this section.
(2) Two members of the West Virginia Senate and two members of
the West Virginia House of Delegates shall serve as advisory
members of the board and are not voting members. The governor
shall appoint the legislative members to the board. No more than
three of the legislative members may be of the same political
party.
(c) (1) The initial eight appointed voting members of the
board of managers shall consist of the members appointed under the
provisions of paragraph (D), subdivision (1), subsection (a) of
this section and the remaining members appointed pursuant to the
provisions of subsection (d) of this section. The term of each of
the initial appointed members shall expire on the thirty-first day
of December, two thousand five.
(2) Effective the first day of January, two thousand six, if
the commission continues, eight members shall be appointed by the
governor with the advice and consent of the Senate for terms that
begin the first day of January, two thousand six, and expire as
follows:
Two members shall be appointed for a term ending the thirtieth
day of June, two thousand seven;
Three members shall be appointed for a term ending the
thirtieth day of June, two thousand eight; and
Three members shall be appointed for a term ending the
thirtieth day of June, two thousand nine.
(3) Except for appointments to fill vacancies, each subsequent
appointment shall be for a term ending the thirtieth day of June of
the fourth year following the year the preceding term expired. In
the event a vacancy occurs, it shall be filled by appointment for
the unexpired term. A member whose term has expired shall continue
in office until a successor has been duly appointed and qualified.
No member of the board may be removed from office by the governor
except for official misconduct, incompetency, neglect of duty or
gross immorality.
(4) No appointed member may be a candidate for or hold elected
office. Members may be reappointed for no more than two full
terms.
(d) Except for those initially appointed under the provisions of paragraph (D), subdivision (1), subsection (b) of this section,
each of the appointed voting members of the board shall be
appointed based upon his or her demonstrated knowledge and
experience to effectively accomplish the purposes of this chapter.
They shall meet the minimum qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited
college or university: Provided, That no more than three of the
appointed voting members may serve without a baccalaureate degree
from an accredited college or university if the member has a
minimum of fifteen years' experience in his or her field of
expertise as required in subdivision (2) of this subsection;
(2) Each shall have a minimum of ten years' experience in his
or her field of expertise. The governor shall consider the
following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in insurance
claims management; expertise in insurance underwriting; expertise
in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two
hundred beneficiaries or three hundred million dollars; expertise
in workers' compensation management; expertise in loss prevention
and rehabilitation; expertise in occupational medicine demonstrated
by licensure as a medical doctor in West Virginia and experience,
board certification or university affiliation; or expertise in
similar areas of endeavor;
(3) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at
least one shall be an attorney with financial management
experience; and one shall be an academician holding an advanced
degree from an accredited college or university in business,
finance, insurance or economics.
(e) Each member of the board shall have a fiduciary
responsibility to the commission and all workers' compensation
funds and shall assure the proper administration of the funds in a
fiscally responsible manner.
(f) The board shall elect one member to serve as chairperson.
The chairperson shall serve for a one-year term and may serve more
than one consecutive term. The board shall hold meetings at the
request of the chairperson or at the request of at least three of
the members of the board, but no less frequently than once every
three months. The chairperson shall determine the date and time of
each meeting. Six members of the board constitute a quorum for the
conduct of the business of the board. No vacancy in the membership
of the board shall impair the right of a quorum to exercise all the
rights and perform all the duties of the board. No action shall be
taken by the board except upon the affirmative vote of six members
of the board.
(g) Notwithstanding any provision of article seven, chapter
six of this code to the contrary, the board shall establish the salary of the executive director. The board shall establish a set
of performance measurements to evaluate the performance of the
executive director in fulfilling his or her duties as prescribed in
this chapter and shall annually rate the executive director's
performance according to the established measurements and may
adjust his or her annual salary in accordance with that performance
rating.
(h) (1) Each voting appointed member of the board shall
receive compensation of not more than three hundred fifty dollars
per day for each day during which he or she is required to and does
attend a meeting of the board.
(2) Each voting appointed member of the board is entitled to
be reimbursed for actual and necessary expenses incurred for each
day or portion thereof engaged in the discharge of official duties
in a manner consistent with guidelines of the travel management
office of the department of administration.
(i) Each member of the board shall be provided appropriate
liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the state board
of risk and insurance management established pursuant to article
twelve, chapter twenty-nine of this code.
(j) The board of managers shall:
(1) Review and approve, reject or modify recommendations from
the executive director for the development of overall policy for the administration of this chapter;
(2) In consultation with the executive director, propose
legislation and establish operating guidelines and policies
designed to ensure the effective administration and financial
viability of the workers' compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are
proposed by the executive director for operation of the workers'
compensation system before the rules are filed with the secretary
of state. The rules adopted by the board are not subject to
sections nine through sixteen, inclusive, article three, chapter
twenty-nine-a of this code. The board shall follow the remaining
provisions of said chapter for giving notice to the public of its
actions and for holding hearings and receiving public comments on
the rules;
(4) In accordance with the laws, rules and regulations of West
Virginia and the United States government, establish and monitor
performance standards and measurements to ensure the timeliness and
accuracy of activities performed under the workers' compensation
laws and rules;
(5) Review and approve, reject or modify all classifications
of occupations or industries, premium rates and taxes,
administrative charges, rules and systems of rating, rating plans,
rate revisions, deficit management and deficit reduction
assessments and merit rating for employers covered by this chapter. The executive director shall provide all information required for
the board's review;
(6) In conjunction with the executive director initiate,
oversee and review all independent financial and actuarial reviews
of the commission. The board shall employ an internal auditor for
the purpose of examining internal compliance with the provisions of
this chapter. The internal auditor shall be employed directly by
the board. The internal auditor shall submit copies of all reports
prepared by the internal auditor for the board to the joint
committee on government and finance within five days of submitting
or making the report to the board, by filing the report with the
legislative librarian;
(7) Approve the allocation of sufficient administrative
resources and funding to efficiently operate the workers'
compensation system of West Virginia. To assure efficient
operation, the board shall direct the development of a plan for the
collections performed under section five-a, article two of this
chapter. The plan for collections shall maximize ratio of dollars
potentially realized by the collection proceeding to the dollars
invested in collection activity;
(8) Review and approve, reject or modify the budget prepared
by the executive director for the operation of the commission. The
budget shall include estimates of the costs and necessary
expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices,
furniture, equipment and supplies to all commission officers and
employees;
(9) In consultation with the executive director, approve the
designation of health care providers to make decisions for the
commission regarding appropriateness of medical services;
(10) Require the workers' compensation commission to develop,
maintain and use an effective program of return-to-work services
for employers and workers;
(11) Require the workers' compensation commission to develop,
maintain and use thorough and efficient claims management
procedures and processes and fund management in accordance with the
generally accepted practices of the workers' compensation insurance
industry;
(12) Consider such other matters regarding the workers'
compensation system as the governor, executive director or any
member of the board may desire;
(13) Review and approve, reject or modify standards
recommended by the executive director to be considered by the
commission in making decisions on all levels of disability awards.
The standards should be established as an effective means to make
prompt, appropriate decisions relating to medical care and methods
to assist employees to return to work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Employ sufficient professional and clerical staff to
carry out the duties of the board. Employees of the board shall
serve at the will and pleasure of the board. The board's employees
are exempt from the salary schedule or pay plan adopted by the
division of personnel;
(16) Study the feasibility of, provide a plan for and provide
a proposal for a request for proposals from the private sector for
privatizing the workers' compensation system of this state,
including, but not limited to, a plan for privatizing the
administration of the workers' compensation system of this state
and a plan for allowing employers to obtain private insurance to
insure their obligations under the workers' compensation system of
this state; study the effect, if any, of attorneys fees on the cost
of administering the workers' compensation system; study the extent
to which fraud or abuse on the part of employees, providers and
others have an effect on the cost of administering the workers'
compensation system; study the extent, if any, that the rates and
amounts of disability awards exceed the rates and amounts of such
awards in other states; study the comparative desirability of
alternative permanent disability administration in those other
states, and alternative deficit management strategies, including
nontraditional funding; study the feasibility of authorizing a plan
of multiple rate classifications by individual employers for
employers who have different or seasonally diverse job classifications and duties: Provided, That no such plan may be
implemented until adopted by the Legislature; and, in consultation
with the director of the division of personnel, study the
feasibility of establishing a work incentive program to place
unemployed qualified recipients of workers' compensation benefits
in state or local government employment. On or before the first
day of January, two thousand six, the commission shall report the
findings and conclusions of each study, the plans and proposals,
and any recommendations the commission may have as a result of the
study to the joint committee on government and finance; and
(17) Complete all duties set forth in article two-c of this
chapter.
(k) The board of managers shall continue to exist pursuant to
this article until the commission is terminated pursuant to the
provisions of this chapter.
§23-1-1b. Executive director; qualifications; oath; seal;
removal; powers and duties.
(a) The executive director shall be hired by the board of
managers for a term not to exceed five years and may be retained
based on overall performance for additional terms: Provided, That
the executive director of the division of workers' compensation on
the date of the enactment of this section in the year two thousand
three shall serve as the initial executive director of the
commission and shall receive the same salary and benefits as received as the executive director of the division of workers'
compensation through and until the board of managers establishes
his or her salary and benefits as the executive director of the
commission. The position of executive director shall be full-time
employment. Except for the initial executive director, candidates
for the position of executive director shall have a minimum of a
bachelor of arts or science degree from an accredited four-year
college or university in one or more of the following disciplines:
Finance; economics; insurance administration; law; public
administration; accounting; or business administration. Candidates
for the position of executive director will be considered based on
their demonstrated education, knowledge and a minimum of ten years'
experience in the areas of workers' compensation, insurance company
management, administrative and management experience with an
organization comparable in size to the workers' compensation
commission or any relevant experience which demonstrates an ability
to effectively accomplish the purposes of this chapter.
(b) The executive director shall not be a candidate for or
hold any other public office or trust, nor shall he or she be a
member of a political committee. If he or she becomes a candidate
for a public office or becomes a member of a political committee,
his or her office as executive director shall be immediately
vacated.
(c) The executive director, before entering upon the duties of his or her office, shall take and subscribe to the oath prescribed
by section five, article IV of the state constitution. The oath
shall be filed with the secretary of state.
(d) The executive director shall have an official seal for the
authentication of orders and proceedings, upon which seal shall be
engraved the words "West Virginia Workers' Compensation Commission"
and any other design prescribed by the board of managers. The
courts in this state shall take judicial notice of the seal of the
commission and in all cases copies of orders, proceedings or
records in the office of the West Virginia workers' compensation
commission are equal to the original in evidence.
(e) The executive director shall not be a member of the board
of managers.
(f) The executive director shall serve until the expiration of
his or her term, resignation or until removed by a two-thirds vote
of the full board of managers. The board of managers and the
executive director may, by agreement, terminate the term of
employment at any time.
(g) The executive director shall have overall management
responsibility and administrative control and supervision within
the workers' compensation commission and has the power and duty to:
(1) Establish, with the approval of the board of managers, the
overall administrative policy of the commission for the purposes of
this chapter;
(2) Employ, direct and supervise all employees required in the
connection with the performance of the duties assigned to the
commission by this chapter and fix the compensation of the
employees in accordance with the provisions of article six, chapter
twenty-nine of this code: Provided, That the executive director
shall identify which members of the staff of the workers'
compensation commission shall be exempted from the salary schedules
or pay plan adopted by the state personnel board and further
identify such staff members by job classification or designation,
together with the salary or salary ranges for each such job
classification or designation and shall file this information with
the director of the division of personnel no later than the
thirty-first day of December, two thousand three, and thereafter as
changes are made or at least annually: Provided, however, That,
effective the first day of July, two thousand six, if the
commission has not been terminated or otherwise discontinued, all
employees of the commission shall be exempt and otherwise not under
the jurisdiction of the provisions of the statutes, rules and
regulations of the classified service set forth in article six,
chapter twenty-nine of this code and article six-a of said chapter
and are afforded no protections, rights or access to procedures set
forth in said provision. All commission employees shall be
employees at will unless his or her employment status is altered by
an express, written employment contract executed on behalf of the commission and the employee. The commission and its employees
shall be exempt and otherwise not under the jurisdiction of the
state personnel board, the department of personnel, or any other
successor agency, and their statutes, rules and regulations;
(3) Reorganize the work of the commission, its divisions,
sections and offices to the extent necessary to achieve the most
efficient performance of its functions. All persons employed by
the workers' compensation division in positions that were formerly
supervised and directed by the commissioner of the bureau of
employment programs under chapter twenty-one-a of this code are
hereby assigned and transferred in their respective classifications
to the workers' compensation commission effective the first day of
October, two thousand three. Further, the executive director may
select persons that are employed by the bureau of employment
programs on the effective date of the enactment of this section in
the year two thousand three to be assigned and transferred to the
workers' compensation commission in their respective
classifications, such assignment and transfer to take effect no
later than the thirty-first day of December, two thousand three.
Employees in the classified service who have gained permanent
status as of the effective date of this article will not be subject
to further qualifying examination in their respective
classifications by reason of any transfer required by the
provisions of this subdivision. Due to the emergency currently existing at the commission and the urgent need to develop fast,
efficient claims processing, management and administration, the
executive director is hereby granted authority to reorganize
internal functions and operations and to delegate, assign,
transfer, combine, establish, eliminate and consolidate
responsibilities and duties to and among the positions transferred
under the authority of this subdivision. The division of personnel
shall cooperate fully by assisting in all personnel activities
necessary to expedite all changes for the commission. The
executive director is hereby granted authority to reorganize
internal functions and operations and to delegate, assign,
transfer, combine, establish, eliminate and consolidate
responsibilities and duties to and among the positions transferred
under the authority of this subdivision. The division of personnel
shall cooperate fully by assisting in all personnel activities
necessary to expedite all changes for the commission and shall
otherwise continue to provide all necessary administrative support
to the commission in connection with the commission's personnel
needs until the company established in article two-c of this
chapter becomes operational. Nothing contained in this subdivision
shall be construed to either abridge the rights of employees within
the classified service of the state to the procedures and
protections set forth in article six, chapter twenty-nine of this
code or to preclude the reclassification or reallocation of positions in accordance with procedures set forth in said article;
(4) Exempt no more than twenty-five of any of the newly
created positions from the classified service of the state, the
employees of which positions shall serve at the will and pleasure
of the executive director. The executive director shall report all
exemptions made under this subdivision to the director of the
division of personnel no later than the first day of January, two
thousand four, and thereafter as the executive director determines
to be necessary;
(5) With the advice and approval of the board of managers,
propose operating guidelines and policies to standardize
administration, expedite commission business and promote the
efficiency of the services provided by the commission;
(6) Prepare and submit to the board of managers information
the board requires for classifications of occupations or
industries; the basis for premium rates, taxes, surcharges and
assessment for administrative charges, for assessments related to
loss experience, for assessments of prospective risk exposure, for
assessments of deficit management and deficit reduction costs
incurred, for other deficit management and deficit reduction
assessments, for rules and systems of rating, rate revisions and
merit rating for employers covered by this chapter; and information
regarding the extent, degree and amount of subsidization between
the classifications. The executive director shall obtain, prepare and submit any other information the board of managers requires for
the prompt and efficient discharge of its duties;
(7) Keep accurate and complete accounts and records necessary
to the collection, administration and distribution of the workers'
compensation funds;
(8) Sign and execute in the name of the state, by "The
Workers' Compensation Commission", any contract or agreement;
(9) Make recommendations and an annual report to the governor
concerning the condition, operation and functioning of the
commission;
(10) Invoke any legal or special remedy for the enforcement of
orders or the provisions of this chapter;
(11) Prepare and submit for approval to the board of managers
a budget for each fiscal year, including estimates of the costs and
necessary expenditures of the commission in the discharge of all
duties imposed by this chapter as well as the costs of furnishing
office space to the officers and employees of the commission;
(12) Ensure that all employees of the commission follow the
orders, operating guidelines and policies of the commission as they
relate to the commission's overall policymaking, management and
adjudicatory duties under this chapter;
(13) Delegate all powers and duties vested in the executive
director to his or her appointees and employees; but the executive
director is responsible for their acts;
(14) Provide at commission expense a program of continuing
professional, technical and specialized instruction for the
personnel of the commission. The executive director shall consult
with and report at least annually to the legislative oversight
commission on workforce investment for economic development to
obtain the most appropriate training using all available resources;
(15) (A) Contract or employ counsel to perform all legal
services for the commission including, but not limited to,
representing the executive director, board of managers and
commission in any administrative proceeding and in any state or
federal court. Additionally, the commission may, but shall not be
required to, call upon the attorney general for legal assistance
and representation as provided by law. The attorney general shall
not approve or exercise authority over in-house counsel or contract
counsel hired pursuant to this section;
(B) In addition to the authority granted by this section to
the executive director and notwithstanding any provision to the
contrary elsewhere in this code, use any attorney regularly
employed by the commission or the office of the attorney general to
represent the commission, the executive director or the board of
managers in any matter arising from the performance of its duties
or the execution of its powers under this chapter. In addition,
the executive director, with the approval of the board of managers,
may retain counsel for any purpose in the administration of this chapter relating to the collection of any amounts due from
employers to the commission: Provided, That the allocation of
resources for the purpose of any collections shall be pursuant to
the plan developed by the board of managers. The board of managers
shall solicit proposals from counsel who are interested in
representing the commission under the terms of this subdivision.
Thereafter, the board of managers shall select any attorneys it
determines necessary to pursue the collection objectives of this
subdivision:
(i) Payment to retained counsel may either be hourly or by
other fixed fee, or as determined by the court or administrative
law judge as provided in this section. A contingency fee payable
from the amount recovered by judgment or settlement for the
commission is only permitted, to the extent not prohibited by
federal law, when the assets of a defendant or respondent are
depleted so that a full recovery plus attorneys' fees is not
possible;
(ii) In the event that any collections action, other than a
collections action against a claimant, initiated either by retained
counsel or other counsel on behalf of the commission results in a
judgment or settlement in favor of the commission, the court or, if
there was no judicial component to the action, the administrative
law judge, shall determine the amount of attorneys' fees that shall
be paid by the defendants or respondents to the retained or other counsel representing the commission. If the court is to determine
the amount of attorneys' fees, it shall include in its
determination the amount of fee that should be paid for the
representation of the commission in pursuing the administrative
component, if any, of the action. The amount so paid shall be
fixed by the court or the administrative law judge in an amount no
less than twenty percent of its recovery. Any additional amount of
attorneys' fees shall be determined by use of the following
factors:
(I) The counsel's normal hourly rate or, if the counsel is an
employee of the commission or is an employee of the office of the
attorney general, an hourly rate the court or the administrative
law judge determines to be customary based upon the attorney's
experience and skill level;
(II) The number of hours actually expended on the action;
(III) The complexity of the issues involved in the action;
(IV) The degree of risk involved in the case with regard to
the probability of success or failure;
(V) The overhead costs incurred by counsel with regard to the
use of paralegals and other office staff, experts and
investigators; and
(VI) The public purpose served or public objective achieved by
the attorney in obtaining the judgment or settlement on behalf of
the commission;
(iii) Notwithstanding the provisions of paragraph (B) of this
subdivision, if the commission and the defendants or respondents to
any administrative or judicial action settle the action, the
parties may negotiate a separate settlement of attorneys' fees to
be paid by the defendants or respondents above and beyond the
amount recovered by the commission. In the event that a settlement
of attorneys' fees is made, it must be submitted to the court or
administrative law judge for approval;
(iv) Any attorney regularly employed by the commission or by
the office of the attorney general may not receive any remuneration
for his or her services other than the attorney's regular salary.
Any attorneys' fees awarded for an employed attorney are payable to
the commission;
(16) Propose rules for promulgation by the board of managers
under which agencies of this state shall revoke or refuse to grant,
issue or renew any contract, license, permit, certificate or other
authority to conduct a trade, profession or business to or with any
employing unit whose account is in default with the commission with
regard to the administration of this chapter. The term "agency"
includes any unit of state government such as officers, agencies,
divisions, departments, boards, commissions, authorities or public
corporations. An employing unit is not in default if it has
entered into a repayment agreement with the commission and remains
in compliance with its obligations under the repayment agreements;
(A) The rules shall provide that, before granting, issuing or
renewing any contract, license, permit, certificate or other
authority to conduct a trade, profession or business to or with any
employing unit, the designated agencies shall review a list or
lists provided by the commission of employers that are in default.
If the employing unit's name is not on the list, the agency, unless
it has actual knowledge that the employing unit is in default with
the commission, may grant, issue or renew the contract, license,
permit, certificate or other authority to conduct a trade,
profession or business. The list may be provided to the agency in
the form of a computerized database or databases that the agency
can access. Any objections to the refusal to issue or renew shall
be reviewed under the appropriate provisions of this chapter. The
prohibition against granting, issuing or renewing any contract,
license, permit, certificate or other authority under this
subdivision shall remain in full force and effect as promulgated
under section six, article two, chapter twenty-one-a of this code
until the rules required by this subsection are promulgated and in
effect;
(B) The rules shall also provide a procedure allowing any
agency or interested person, after being covered under the rules
for at least one year, to petition the commission to be exempt from
the provisions of the rules;
(17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code
and to the extent allowed by federal law, all amounts of delinquent
payments or overpayments, interest and penalties thereon and
attorneys' fees and costs collected under the provisions of this
chapter. The amounts collected shall not be treated by the auditor
or treasurer as part of the general revenue of the state;
(18) Recommend for approval of the board of managers rules for
the administration of claims management by self-insured employers
and third-party administrators including regulation and sanctions
for the rejection of claims and for maintaining claim records and
ensuring access to all claim records by interested claimants,
claimant representatives, the commission and the office of judges;
(19) Recommend for approval of the board of managers, rules to
eliminate the ability of an employer to avoid an experience
modification factor by virtue of a reorganization of a business;
(20) Submit for approval of the board of managers rules
setting forth procedures for auditing and investigating employers,
including employer premium audits and including auditing and
investigating programs of self-insured employers and third-party
administrators, employees, health care providers and medical and
vocational rehabilitation service providers;
(21) Regularly audit and monitor programs established by
self-insured or third-party administrators under this chapter to
ensure compliance with the commission's rules and the law;
(22) Facilitate the transfer of the fraud investigation and
prosecution unit, along with the assets necessary to support the
functions being performed, to the insurance commissioner. This
transfer shall be to be completed by the first day of July, two
thousand five. This unit has the responsibility and authority for
investigating and controlling fraud of the workers' compensation
system of the state of West Virginia. The fraud unit shall be
under the supervision of an inspector general, who shall be
appointed by the insurance commissioner. Nothing in this section
shall preclude the commission or, when applicable, the company
created in article two-c of this chapter and other private
carriers, from independently investigating and controlling abuse
and exercising the powers granted to the commission to address and
eliminate abuse under this chapter. The executive director may
select persons that are assigned to the fraud and abuse unit on the
effective date of the enactment of this section to be assigned and
remain employees of the workers' compensation commission. The
commission shall determine its fiscal year two thousand six budget
for the fraud investigation and prosecution unit and shall make
advanced quarterly payments to the insurance commissioner during
fiscal year two thousand six for the actual operational expenses
incurred as a direct result of this transfer: Provided, That the
payments and expenses shall be reconciled prior to the final fiscal
year transfer and any unexpended amount shall be deducted from the final quarter's payment. This reimbursement methodology shall
repeat for fiscal year two thousand seven. Any amounts transferred
under this section to the insurance commissioner shall be
appropriated by the Legislature. The commission's inspector
general shall serve as the initial inspector general for the
insurance commissioner;
(A) The inspector general shall, with the consent and advice
of the executive director, employ all personnel as necessary for
the institution, development and finalization of procedures and
investigations which serve to ensure that only necessary and proper
workers' compensation benefits and expenses are paid to or on
behalf of injured employees and to insure employers subscribe to
and pay the proper premium to the West Virginia workers'
compensation commission. Qualification, compensation and personnel
practice relating to the employees of the fraud and abuse unit,
including that of the position of inspector general, shall be
governed by the provisions of the statutes and rules of the
classified service pursuant to article six, chapter twenty-nine of
this code. The inspector general shall supervise all personnel,
which collectively shall be referred to in this chapter as the
fraud and abuse unit;
(B) The fraud and abuse unit shall have the following powers
and duties:
(i) The fraud and abuse unit shall propose for promulgation by the board of managers rules for determining the existence of fraud
and abuse as it relates to the workers' compensation system in West
Virginia;
(ii) The fraud and abuse unit will be responsible for the
initiation, development, review and proposal for promulgation by
the board of managers of rules regarding the existence of fraud and
abuse as it relates to the workers' compensation system in West
Virginia;
(iii) The fraud and abuse unit will take action to identify
and prevent and discourage any and all fraud and abuse;
(iv) The fraud and abuse unit, in cases of criminal fraud, has
the authority to review and prosecute those cases for violations of
sections twenty-four-e, twenty-four-f, twenty-four-g and
twenty-four-h, article three, chapter sixty-one of this code, as
well as any other criminal statutes that may be applicable. In
addition the fraud and abuse unit not only has the authority to
prosecute and refer cases involving criminal fraud to appropriate
state authorities for prosecution, but it also has the authority,
and is encouraged, to cooperate with the appropriate federal
authorities for review and possible prosecution, by either state or
federal agencies, of cases involving criminal fraud concerning the
workers' compensation system in West Virginia;
(v) The fraud and abuse unit, in cases which do not meet the
definition of criminal fraud, but would meet a reasonable person's definition of an abuse of the workers' compensation system, shall
take the appropriate action to discourage and prevent such abuse.
Furthermore, the fraud and abuse unit shall assist the commission
to develop evidence of fraud or abuse which can be used pursuant to
the provisions of this chapter to suspend, and where appropriate,
terminate, a claimant's benefits. In addition, evidence developed
pursuant to these provisions can be used in hearings before the
office of judges on protests to commission decisions terminating,
or not terminating, temporary total disability benefits; and
(vi) The fraud and abuse unit, is expressly authorized to
initiate investigations and participate in the development of, and
if necessary, the prosecution of any health care provider,
including a provider of rehabilitation services, alleged to have
violated the provisions of section three-c, article four of this
chapter;
(C) Specific personnel, designated by the inspector general,
shall be permitted to operate vehicles owned or leased for the
state displaying Class A registration plates;
(D) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the inspector general
may carry handguns in the course of their official duties after
meeting specialized qualifications established by the governor's
committee on crime, delinquency and correction, which
qualifications shall include the successful completion of handgun training provided to law-enforcement officers by the West Virginia
state police: Provided, That nothing in this subsection shall be
construed to include the personnel so designated by the inspector
general to carry handguns within the meaning of the term
law-enforcement official as defined in section one, article
twenty-nine, chapter thirty of this code;
(E) The fraud and abuse unit is not subject to any requirement
of article nine-a, chapter six of this code and the investigations
conducted by the fraud and abuse unit and the materials placed in
the files of the unit as a result of any such investigation are
exempt from public disclosure under the provisions of chapter
twenty-nine-b of this code;
(F) In the event that a final judicial decision adjudges that
the statewide prosecutorial powers vested by this subdivision in
the fraud and abuse unit may only be exercised by a public official
other than an employee of the fraud and abuse unit, then to that
extent the provisions of this subdivision vesting statewide
prosecutorial power shall thenceforth be of no force and effect,
the remaining provisions of this subdivision shall continue in full
force and effect and prosecutions hereunder may only be exercised
by the prosecuting attorneys of this state and their assistants or
special assistant prosecuting attorneys appointed as provided by
law;
(23) Enter into interagency agreements to assist in exchanging information and fulfilling the default provisions of this chapter;
(24) Notwithstanding any provision of this code to the
contrary, the executive director, under emergency authorization:
(A) May expend up to fifty thousand dollars for purchases of
and may contract for goods and services without securing
competitive bids. This emergency spending authority expires on the
first day of July, two thousand five; and
(B) May expend such sums as the executive director determines
are necessary for professional services, contracts for the purchase
of an automated claims administration system and associated
computer hardware and software in the administration of claims for
benefits made under provisions of this chapter and contracts for
technical services and related services necessary to develop,
implement and maintain the system and associated computer hardware
and software. The provisions of article three, chapter five-a of
this code relating to the purchasing division of the department
administration shall not apply to these contracts. The director
shall award the contract or contracts on a competitive basis. This
emergency spending authority expires on the thirty-first day of
December, two thousand six;
(25) Establish an employer violator system to identify
individuals and employers who are in default or are delinquent on
any premium, assessment, surcharge, tax or penalty owed to the
commission. The employer violator system shall prohibit violators who own, control or have a ten percent or more ownership interest,
or other ownership interest as may be defined by the commission, in
any company from obtaining or maintaining any license, certificate
or permit issued by the state until the violator has paid all
moneys owed to the commission or has entered into and remains in
compliance with a repayment agreement;
(26) Propose the designation of health care providers to make
decisions for the commission regarding appropriateness of medical
services;
(27) Study the correlation between premium tax merit rating
for employers and the safety performance of employers. This study
shall be completed prior to the first day of July, two thousand
four, and the results thereof provided to the board of managers;
(28) Upon termination of the commission, accomplish the
transfer to the insurance commissioner established in article two-c
of this chapter, the insurance commissioner, and any other
applicable state agency or department, of the functions necessary
for the regulation of the workers' compensation insurance industry,
including, but not limited to, the following commission functions:
rate-making, self-insurance, office of judges and board of review.
The executive director may select persons that are assigned to
these functions on the effective date of the enactment of this
section to be assigned and become employees of the company as
established in article two-c of this chapter. The executive director may, in consultation with the insurance commissioner,
select persons that are assigned to the insurance commissioner.
The commission shall determine its fiscal year two thousand six
budget for each of these functions, reduce the budget amount
attributable to self-insured employers for these functions and
shall make advanced quarterly payments to the insurance
commissioner during fiscal year two thousand six for the actual
operational expenses incurred as a direct result of this transfer.
The amount shall include the funds necessary to operate the
industrial council and the insurance commissioner shall be
administratively responsible for the industrial council's budget:
Provided, That the payments and expenses shall be reconciled prior
to the final fiscal year transfer and any unexpended amount shall
be deducted from the final quarter's payment. This reimbursement
methodology shall repeat for fiscal year two thousand and seven.
Any amounts transferred under this section to the insurance
commissioner shall be appropriated by the Legislature. For the
final calendar quarter of two thousand five and the first and
second calendar quarters of the year two thousand six, all self-
insured employers shall remit to the insurance commissioner on a
quarterly basis the administrative component of their fiscal year
two thousand six rate. For the fiscal year beginning the first day
of July, two thousand six, self-insured employers shall remit an
administrative charge to the insurance commissioner in an amount determined by the commissioner. All self-insured employer advance
deposits shall transfer from the commission to the insurance
commissioner upon termination of the commission; and
(29) Perform all duties set forth in article two-c of this
chapter.
§23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and
agents making contracts on behalf of the state of West Virginia or
any political subdivision thereof shall withhold payment in the
final settlement of contracts until the receipt of a certificate
from the commission or the company created in article two-c of this
chapter to the effect that all payments, interest and penalties
thereon accrued against the contractor under this chapter as of the
termination of the commission have been paid or that provisions
satisfactory to the commission or company created in article two-c
of this chapter have been made for payment. Any official violating
this subsection is guilty of a misdemeanor and, on conviction
thereof, shall be fined not more than one thousand dollars or
confined in the county or regional jail for not more than one year,
or both fined and confined.
(b) Any agency of the state, for the limited purpose of
intercepting, pursuant to section five-a, article two of this
chapter, any payment by or through the state to an employer who is
in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter, shall
assist the commission or company created in article two-c of this
chapter in collecting the payment that is due under subsection (a)
of this section. For this purpose, disclosure of joint delinquency
and default lists of employers with respect to unemployment
compensation as provided in section six-c, article one, chapter
twenty-one-a of this code and workers' compensation contributions,
premiums, interest, deposits or penalties is authorized. The
commission and the bureau of employment programs may enter into an
interagency agreement to effect the provisions of this section.
The lists may be in the form of a computerized database to be
accessed by the auditor, the department of tax and revenue, the
department of administration, the division of highways or other
appropriate state agency or officer.
§23-1-1e. Transfer of assets and contracts; ability to acquire,
own, lease and otherwise manage property.
(a) With the establishment of the workers' compensation
commission, all assets and contracts, along with rights and
obligations thereunder, obtained or signed on behalf of the
workers' compensation division of the bureau of employment programs
in furtherance of the purposes of this chapter, are hereby
transferred and assigned to the workers' compensation commission.
(b) From the termination of the commission through the
thirtieth day of June, two thousand eight, the company may continue to contract and exchange data and information with the office of
information, services and communication, the bureau of employment
programs, the division of motor vehicles, various child support
enforcement agencies and other similar state agencies and entities
in a manner similar to the commission to accomplish the intent of
this chapter.
§23-1-1g. Legislative intent to create a quasi-public entity.
In recognition of the impact a state's workers' compensation
premium levels may have on the state's ability to conduct economic
development and the resulting need to operate the state's workers'
compensation system in such a manner that will enable the lowest
premiums to be charged employers while at the same time ensuring
adequate benefit levels are provided to injured workers, it is the
intent of the Legislature that the workers' compensation commission
remain a commission of the state as provided in article two,
chapter five-f of this code until the company created in article
two-c of this chapter is created and operational and the New Fund
created in article two-c of this chapter has been funded. Until
the termination of the commission and in order for the commission
to be able to capture the efficiencies associated with private
sector operations, the workers' compensation commission is exempt
from the provisions of the following effective upon the date upon
which this enactment is made effective by the Legislature:
(a) Article three, chapter five-a, related to the department of administration purchasing division; and
(b) Section eleven, article three, chapter twelve, relating to
appropriations, expenditures and deductions.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under articles
one through five, inclusive, of this chapter, the commission may
cause depositions of witnesses residing within or without the state
to be taken in the manner prescribed by law for like depositions in
the circuit court, but the depositions shall be upon reasonable
notice to claimant and employer or other affected persons or their
respective attorneys. The commission shall designate the person to
represent it for the taking of the deposition.
(b) The commission also has discretion to accept and consider
depositions taken within or without the state by either the
claimant or employer or other affected person, provided due and
reasonable notice of the taking of the depositions was given to the
other parties or their attorneys, if any: Provided, That the
commission, upon due notice to the parties, has authority to refuse
or permit the taking of depositions or to reject the depositions
after they are taken, if they were taken at a place or under
circumstances which imposed an undue burden or hardship upon the
other parties. The commission's discretion to accept, refuse to
approve or reject the depositions is binding in the absence of
abuse of the discretion.
(c) The powers and duties set forth in the section shall be
transferred from the workers' compensation commission to the
insurance commissioner upon termination of the commission.
§23-1-13. Rules of procedure and evidence; persons authorized to
appear in proceedings; withholding of psychiatric and
psychological reports and providing summaries thereof.
(a) The workers' compensation commission shall adopt
reasonable and proper rules of procedure, regulate and provide for
the kind and character of notices, and the service of the notices,
in cases of accident and injury to employees, the nature and extent
of the proofs and evidence, the method of taking and furnishing of
evidence to establish the rights to benefits or compensation from
the fund hereinafter provided for, or directly from employers as
hereinafter provided, as the case may require, and the method of
making investigations, physical examinations and inspections and
prescribe the time within which adjudications and awards shall be
made.
(b) At hearings and other proceedings before the commission or
before the duly authorized representative of the commission, an
employer who is a natural person may appear, and a claimant may
appear, only as follows:
(1) By an attorney duly licensed and admitted to the practice
of law in this state;
(2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0 - admission pro hac vice,
West Virginia supreme court rules for admission to the practice of
law, as amended;
(3) By a representative from a labor organization who has been
recognized by the commission as being qualified to represent a
claimant or who is an individual otherwise found to be qualified by
the commission to act as a representative. The representative
shall participate in the presentation of facts, figures and factual
conclusions as distinguished from the presentation of legal
conclusions in respect to the facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the commission or
before the duly authorized representative of the commission, an
employer who is not a natural person may appear only as follows:
(1) By an attorney duly licensed and admitted to the practice
of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0 - admission pro hac vice,
West Virginia supreme court rules for admission to the practice of
law, as amended;
(3) By a member of the board of directors of a corporation or
by an officer of the corporation for purposes of representing the
interest of the corporation in the presentation of facts, figures
and factual conclusions as distinguished from the presentation of
legal conclusions in respect to the facts and figures; or
(4) By a representative from an employer service company who
has been recognized by the commission as being qualified to
represent an employer or who is an individual otherwise found to be
qualified by the commission to act as a representative. The
representative shall participate in the presentation of facts,
figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to the facts and
figures.
(d) The commission or its representative may require an
individual appearing on behalf of a natural person or corporation
to produce satisfactory evidence that he or she is properly
qualified and authorized to appear pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not be
construed as being applicable to proceedings before the office of
judges pursuant to the provisions of article five of this chapter.
(f) At the direction of a treating or evaluating psychiatrist
or clinical doctoral-level psychologist, a psychiatric or
psychological report concerning a claimant who is receiving
treatment or is being evaluated for psychiatric or psychological problems may be withheld from the claimant. In that event, a
summary of the report shall be compiled by the reporting
psychiatrist or clinical doctoral-level psychologist. The summary
shall be provided to the claimant upon his or her request. Any
representative or attorney of the claimant must agree to provide
the claimant with only the summary before the full report is
provided to the representative or attorney for his or her use in
preparing the claimant's case. The report shall only be withheld
from the claimant in those instances where the treating or
evaluating psychiatrist or clinical doctoral-level psychologist
certifies that exposure to the contents of the full report is
likely to cause serious harm to the claimant or is likely to cause
the claimant to pose a serious threat of harm to a third party.
(g) In any matter arising under articles one through five,
inclusive, of this chapter in which the commission is required to
give notice to a party, if a party is represented by an attorney or
other representative, then notice to the attorney or other
representative is sufficient notice to the party represented.
(h) The powers and duties set forth in the section shall be
transferred from the workers' compensation commission to the
insurance commissioner upon termination of the commission.
§23-1-14. Forms.
The commission shall prepare and furnish free of cost forms
(and provide in his or her rules for their distribution so that they may be readily available) of applications for benefits for
compensation from the workers' compensation fund, or directly from
employers, as the case may be, notices to employers, proofs of
injury or death, of medical attendance, of employment and wage
earnings and any other forms considered proper and advisable. It
is the duty of employers to constantly keep on hand a sufficient
supply of the forms. The powers and duties set forth in the
section shall be transferred from the workers' compensation
commission to the insurance commissioner as of the termination of
the commission.
§23-1-15. Procedure before commission.
The commission, and the insurance commissioner effective upon
termination of the commission, are not bound by the usual common-
law or statutory rules of evidence, but shall adopt formal rules of
practice and procedure as herein provided, and may make
investigations in a manner that in his or her judgment is best
calculated to ascertain the substantial rights of the parties and
to carry out the provisions of this chapter.
§23-1-17. Annual report by the insurance commissioner and
occupational pneumoconiosis board.
Annually, on or about the fifteenth day of September in each
year, the insurance commissioner and the occupational
pneumoconiosis board shall make a report as of the thirtieth day of
June addressed to the governor, which shall include a statement of the causes of the injuries for which the awards were made, an
explanation of the diagnostic techniques used by the occupational
pneumoconiosis board and all examining physicians to determine the
presence of disease, the extent of impairment attributable thereto,
a description of the scientific support for the diagnostic
techniques and a summary of public and private research relating to
problems and prevention of occupational diseases. The report shall
include a detailed statement of all disbursements, and the
condition of the fund, together with any specific recommendations
for improvements in the workers' compensation law and for more
efficient and responsive administration of the workers'
compensation law, which the executive director considers
appropriate. Copies of all annual reports shall be filed with the
secretary of state and shall be made available to the Legislature
and to the public at large.
§23-1-19. Civil remedies.
(a) Any person, firm, corporation or other entity which
willfully, by means of false statement or representation, or by
concealment of any material fact, or by other fraudulent scheme,
device or artifice on behalf of himself, itself or others, obtains
or attempts to obtain benefits, payments, allowances or reduced
premium costs or other charges, including workers' compensation
coverage under the programs of the workers' compensation
commission, the company, a private carrier or self-insured employer, to which he or it is not entitled, or in a greater amount
than that to which he or it is entitled, shall be liable to the
workers' compensation commission, the company, the private carrier
or self-insured employer, in an amount equal to three times the
amount of such benefits, payments or allowances to which he or it
is not entitled and shall be liable for the payment of reasonable
attorney fees and all other fees and costs of litigation.
(b) No criminal action or indictment need be brought against
any person, firm, corporation or other entity as a condition for
establishing civil liability hereunder.
(c) A civil action under this section may be prosecuted and
maintained on behalf of the workers' compensation commission, the
insurance commissioner, the company, a private carrier or self-
insured employer by any attorney in contract with or employed by
the workers' compensation commission, the insurance commissioner,
the company, a private carrier or self-insured employer to provide
such representation.
(d) Venue for a civil action under this section shall be
either in the county in which the defendant resides or in Kanawha
County as selected by the commission or insurance commissioner.
Upon creation of the company pursuant to article two-c of this
chapter, venue for a civil action under this section for the
company, private carriers and self-insured employers shall be
either in the county in which the defendant resides or the county in which the injured worker was employed, as selected by the
company, the private carrier or self-insured employer.
(e) The remedies and penalties provided in this section are in
addition to those remedies and penalties provided elsewhere by law.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business
registration certificates.
(a) The state of West Virginia and all governmental agencies
or departments created by it, including county boards of education,
political subdivisions of the state, any volunteer fire department
or company and other emergency service organizations as defined by
article five, chapter fifteen of this code, and all persons, firms,
associations and corporations regularly employing another person or
persons for the purpose of carrying on any form of industry,
service or business in this state, are employers within the meaning
of this chapter and are required to subscribe to and pay premium
taxes into the workers' compensation fund for the protection of
their employees and are subject to all requirements of this chapter
and all rules prescribed by the workers' compensation commission
with reference to rate, classification and premium payment:
Provided, That rates will be adjusted by the commission to reflect
the demand on the compensation fund by the covered employer.
(b) The following employers are not required to subscribe to
the fund, but may elect to do so:
(1) Employers of employees in domestic services;
(2) Employers of five or fewer full-time employees in
agricultural service;
(3) Employers of employees while the employees are employed
without the state except in cases of temporary employment without
the state;
(4) Casual employers. An employer is a casual employer when
the number of his or her employees does not exceed three and the
period of employment is temporary, intermittent and sporadic in
nature and does not exceed ten calendar days in any calendar
quarter;
(5) Churches;
(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged in
thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary
unit organized under the auspices of a county commission,
municipality or other government entity or political subdivision;
volunteer organizations created or sponsored by government
entities, political subdivisions; or area or regional emergency
medical services boards of directors in furtherance of the purposes
of the emergency medical services act of article four-c, chapter sixteen of this code: Provided, That if any of the employers
described in this subdivision have paid employees, to the extent of
those paid employees, the employer shall subscribe to and pay
premium taxes into the workers' compensation fund based upon the
gross wages of the paid employees but with regard to the
volunteers, the coverage remains optional.
(8) Any employer whose employees are eligible to receive
benefits under the federal Longshore and Harbor Workers'
Compensation Act, 33 U. S. C. §901, et seq., but only for those
employees eligible for those benefits.
(c) Notwithstanding any other provision of this chapter to the
contrary, whenever there are churches in a circuit which employ one
individual clergyman and the payments to the clergyman from the
churches constitute his or her full salary, such circuit or group
of churches may elect to be considered a single employer for the
purpose of premium payment into the workers' compensation fund.
(d) Employers who are not required to subscribe to the
workers' compensation fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in that case are subject to all requirements of this
chapter and all rules and regulations prescribed by the commission
with reference to rates, classifications and premium payments and
shall afford to them the protection of this chapter, including
section six of this article, but the failure of the employers to choose to subscribe to and to pay premiums into the fund shall not
impose any liability upon them other than any liability that would
exist notwithstanding the provisions of this chapter.
(e) Any foreign corporation employer whose employment in this
state is to be for a definite or limited period which could not be
considered "regularly employing" within the meaning of this section
may choose to pay into the workers' compensation fund the premiums
provided for in this section, and at the time of making application
to the workers' compensation commission, the employer shall furnish
a statement under oath showing the probable length of time the
employment will continue in this state, the character of the work,
an estimate of the monthly payroll and any other information which
may be required by the commission. At the time of making
application the employer shall deposit with the commission to the
credit of the workers' compensation fund the amount required by
section five of this article. That amount shall be returned to the
employer if the employer's application is rejected by the
commission. Upon notice to the employer of the acceptance of his
or her application by the commission, he or she is an employer
within the meaning of this chapter and subject to all of its
provisions.
(f) Any foreign corporation employer choosing to comply with
the provisions of this chapter and to receive the benefits under
this chapter shall, at the time of making application to the commission in addition to other requirements of this chapter,
furnish the commission with a certificate from the secretary of
state, where the certificate is necessary, showing that it has
complied with all the requirements necessary to enable it legally
to do business in this state and no application of a foreign
corporation employer shall be accepted by the commission until the
certificate is filed.
(g) The following employers may elect not to provide coverage
to certain of their employees under the provisions of this chapter:
(1) Any political subdivision of the state including county
commissions and municipalities, boards of education, or emergency
services organizations organized under the auspices of a county
commission may elect not to provide coverage to any elected
official. The election not to provide coverage does not apply to
individuals in appointed positions or to any other employees of the
political subdivision;
(2) If an employer is a partnership, sole proprietorship,
association or corporation, the employer may elect not to include
as an "employee" within this chapter, any member of the
partnership, the owner of the sole proprietorship or any corporate
officer or member of the board of directors of the association or
corporation. The officers of a corporation or an association shall
consist of a president, a vice president, a secretary and a
treasurer, each of whom is elected by the board of directors at the time and in the manner prescribed by the bylaws. Other officers
and assistant officers that are considered necessary may be elected
or appointed by the board of directors or chosen in any other
manner prescribed by the bylaws and, if elected, appointed or
chosen, the employer may elect not to include the officer or
assistant officer as an "employee" within the meaning of this
chapter: Provided, That except for those persons who are members of
the board of directors or who are the corporation's or
association's president, vice president, secretary and treasurer
and who may be excluded by reason of their positions from the
benefits of this chapter even though their duties,
responsibilities, activities or actions may have a dual capacity of
work which is ordinarily performed by an officer and also of work
which is ordinarily performed by a worker, an administrator or an
employee who is not an officer, no other officer or assistant
officer who is elected or appointed shall be excluded by election
from coverage or be denied the benefits of this chapter merely
because he or she is an officer or assistant officer if, as a
matter of fact:
(A) He or she is engaged in a dual capacity of having the
duties and responsibilities for work ordinarily performed by an
officer and also having duties and work ordinarily performed by a
worker, administrator or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties of a worker, an administrator or an employee who is not an officer
and receives pay for performing the duties in the capacity of an
employee; or
(C) He or she is engaged in an employment palpably separate
and distinct from his or her official duties as an officer of the
association or corporation;
(3) If an employer is a limited liability company, the
employer may elect not to include as an "employee" within this
chapter a total of no more than four persons, each of whom are
acting in the capacity of manager, officer or member of the
company.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the commission written
notice naming the positions not to be covered and shall not include
the "employee's" remuneration for premium purposes in all future
payroll reports, and the partner, proprietor or corporate or
executive officer is not considered an employee within the meaning
of this chapter after the notice has been served. Notwithstanding
the provisions of subsection (g), section five of this article, if
an employer is delinquent or in default or has not subscribed to
the fund even though it is obligated to do so under the provisions
of this article, any partner, proprietor or corporate or executive
officer shall not be covered and shall not receive the benefits of
this chapter.
(i) "Regularly employing" or "regular employment" means
employment by an employer which is not a casual employer under this
section.
(j) Upon the termination of the commission, the criteria
governing which employer shall or may subscribe to the workers'
compensation commission shall also govern which employers shall or
may purchase workers' compensation insurance under article two-c of
this chapter.
§23-2-1d. Primary contractor liability; definitions; applications
and exceptions; certificates of good standing;
reimbursement and indemnification; termination
of contracts; effective date; collections
efforts.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article includes any
primary contractor who regularly subcontracts with other employers
for the performance of any work arising from or as a result of the
primary contractor's own contract: Provided, That a subcontractor
does not include one providing goods rather than services. For
purposes of this subsection, extraction of natural resources is a
provision of services. In the event that a subcontracting employer
defaults on its obligations to make payments to the commission,
then the primary contractor is liable for the payments. However,
nothing contained in this section shall extend or except to a primary contractor or subcontractors the provisions of section six,
six-a or eight of this article. This section is applicable only
with regard to subcontractors with whom the primary contractor has
a contract for any work or services for a period longer than thirty
days: Provided, however, That this section is also applicable to
contracts for consecutive periods of work that total more than
thirty days. It is not applicable to the primary contractor with
regard to sub-subcontractors. However, a subcontractor for the
purposes of a contract with the primary contractor can itself
become a primary contractor with regard to other employers with
whom it subcontracts. It is the intent of the Legislature that no
contractor, whether a primary contractor, subcontractor or sub-
subcontractor, escape or avoid liability for any workers'
compensation premium, assessment or tax. The executive director
shall propose for promulgation a rule to effect this purpose on or
before the thirty-first day of December, two thousand three.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the executive
director, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor is
in good standing with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor results
in the primary contractor being equally liable with the subcontractor for all delinquent and defaulted premium taxes,
premium deposits, interest and other penalties arising during the
life of the contract or due to work performed in furtherance of the
contract: Provided, That the commission is entitled to collect only
once for the amount of premiums, premium deposits and interest due
to the default, but the commission may impose other penalties on
the primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this
section, the primary contractor shall request that the commission
inform the primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commission shall notify the primary contractor of the default
by placing a notice in the first-class United States mail, postage
prepaid, and addressed to the primary contractor at the address
furnished to the commission by the primary contractor. The mailing
is good and sufficient notice to the primary contractor of the
subcontractor's default. However, the primary contractor is not
liable under this section until the first day of the calendar
quarter following the calendar quarter in which the notice is given
and then the liability is only for that following calendar quarter
and thereafter and only if the subcontract has not been terminated:
Provided, That the commission is entitled to collect only once for
the amount of premiums, premium deposits and interest due to the
default, but the commission may impose other penalties on the primary contractor or on the subcontractor, or both.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided in this section,
the default or failure is good and sufficient cause for a primary
contractor to hold the subcontractor responsible and to seek
reimbursement or indemnification for any amounts paid on behalf of
the subcontractor to avoid or cure a workers' compensation default,
plus related costs, including reasonable attorneys' fees, and to
terminate its subcontract with the subcontractor notwithstanding
any provision to the contrary in the contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after the first day
of January, one thousand nine hundred ninety-four.
(e) The commission may take any action authorized by section
five-a of this article in furtherance of its efforts to collect
amounts due from the primary contractor under this section.
(f) Effective upon termination of the commission, this section
shall be applicable only to unpaid premiums due the commission or
the old fund as provided in article two-c of this chapter.
§23-2-2. Commission to be furnished information by employers,
state tax commissioner and division of
unemployment compensation; secrecy of
information; examination of employers, etc.; violation a misdemeanor.
(a) Every employer shall furnish the executive director, upon
request, all information required by him or her to carry out the
purposes of this chapter. Every employer shall have a continuous
and ongoing duty to maintain current information about its
activities, risks and rates on the books of the commission. The
executive director, or any person employed by the commission for
that purpose, may examine under oath any employer or officer, agent
or employee of any employer.
(b) Notwithstanding the provisions of any other statute to the
contrary, specifically, but not exclusively, sections five and
five-b, article ten, chapter eleven of this code and section
eleven, article ten, chapter twenty-one-a of this code, the
executive director of the workers' compensation commission may
receive the following information:
(1) Upon written request to the state tax commissioner: The
names, addresses, places of business and other identifying
information of all businesses receiving a business franchise
registration certificate and the dates thereof; and the names and
social security numbers or other tax identification numbers of the
businesses and of the businesses' workers and employees, if
otherwise collected, and the quarterly or other applicable
reporting period and annual gross wages or other compensation paid
to the workers and employees of businesses reported pursuant to the requirement of withholding of tax on income.
(2) Upon written application to the division of unemployment
compensation: In addition to the information that may be released
to the workers' compensation commission for the purposes of this
chapter under the provisions of chapter twenty-one-a of this code,
the names, addresses and other identifying information of all
employing units filing reports and information pursuant to section
eleven, article ten, chapter twenty-one-a of this code as well as
information contained in those reports regarding the number and
names, addresses and social security numbers of employees employed
and the gross quarterly or other applicable reporting period wages
paid by each employing unit to each identified employee.
(c) All information acquired by the workers' compensation
commission pursuant to subsection (b) of this section shall be used
only for auditing premium payments, assisting in a wage
determination, assisting in the determination of employment status
and registering businesses under the single point of registration
program as set forth in article twelve, chapter eleven of this
code. The workers' compensation commission, upon receiving the
business franchise registration certificate information made
available pursuant to subsection (b) of this section, shall contact
all businesses receiving a business franchise registration
certificate and provide all necessary forms to register the
business under the provisions of this article. Any officer or employee of this state who uses the information obtained under this
section in any manner other than the one stated in this section or
elsewhere authorized in this code, or who divulges or makes known
in any manner any of the information obtained under this section,
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars or incarcerated in the
county or regional jail for not more than one year, or both
together with cost of prosecution.
(d) Reasonable costs of compilation and production of any
information made available pursuant to subsection (b) of this
section shall be charged to the workers' compensation commission.
(e) Information acquired by the commission pursuant to
subsection (b) of this section is not subject to disclosure under
the provisions of chapter twenty-nine-b of this code.
(f) The right to request, gather and maintain information set
forth in this section shall transfer to the insurance commissioner
and the industrial council upon termination of the commission.
§23-2-3. Report forms and other forms for use of employers.
The commission, and effective upon termination of the
commission, the insurance commissioner, shall prepare and furnish
report forms for the use of employers subject to this chapter.
Every employer receiving from the commission any form or forms with
direction for completion and returning to the commission shall
return the form, within the period fixed by the commission, completed as to answer fully and correctly all pertinent questions
in the form, and if unable to do so, shall give good and sufficient
reasons for the failure. Every employer subject to the provisions
of this chapter shall make application to the commission on the
forms prescribed by the commission for that purpose; and any
employer who terminates his or her business or for any other reason
is no longer subject to this chapter shall immediately notify the
commission on forms to be furnished by the commission for that
purpose.
§23-2-4. Classification of industries; rate of premiums;
authority to adopt various systems; accounts.
(a) The executive director with approval of the board of
managers is authorized to establish by rule a system for
determining the classification and distribution into classes of
employers subject to this chapter, a system for determining rates
of premium taxes applicable to employers subject to this chapter,
a system of multiple policy options with criteria for subscription
and criteria for an annual employer's statement providing both
benefits liability information and rate determination information.
(1) In addition, the rule shall provide for, but not be
limited to:
(A) Rate adjustments by industry or individual employer,
including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Any further matters that are necessary and consistent with
the goals of this chapter;
(2) The rule shall require the establishment of a program
under which the commissioner may grant discounts on premium rates
for employers who meet either of the following requirements:
(A) Have not incurred a compensable injury for one year or
more and who maintain an employee safety committee or similar
organization and make periodic safety inspections of the workplace;
(B) Successfully complete a loss prevention program, including
establishment of a drug-free workplace, prescribed by the
commission's safety and loss control office and conducted by the
commission or by any other person approved by the commission;
(3) The rule shall be consistent with the duty of the
executive director and the board of managers to fix and maintain
the lowest possible rates of premium taxes consistent with the
maintenance of a solvent workers' compensation fund and the
reduction of any deficit that may exist in the fund and in keeping
with their fiduciary obligations to the fund;
(4) The rule shall be consistent with generally accepted
accounting principles;
(5) The rule shall be consistent with classification and
rate-making methodologies found in the insurance industry; and
(6) The rule shall be consistent with the principles of
promoting more effective workplace health and safety programs as
contained in article two-b of this chapter.
(b) In accordance with generally accepted accounting
principles, the workers' compensation commission shall keep an
accurate accounting of all money or moneys earned, due and received
by the workers' compensation fund and of the liability incurred and
disbursements made against the fund; and an accurate account of all
money or moneys earned, due and received from each individual
subscriber and of the liability incurred and disbursements made
against the same.
(c) Prospective rates set in accordance with the provisions of
this article shall at all times be financially sound in accordance
with generally accepted accounting principles and fully fund the
prospective claim obligations for the year in which the rates were
made. Rates, surcharges or assessments for deficit management and
deficit reduction purposes shall be fair and equitable, financially
sound in accordance with generally accepted accounting principles
and sufficient to meet the payment obligations of the fund.
(d) Notwithstanding any provision of subsection (c) of this
section to the contrary, except for those increases made effective
for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code taken prior to the effective date of the amendment and reenactment of this section,
base rates, assessments and surcharges, except for individual
employer merit rate adjustments, shall not be increased during
fiscal years two thousand four and two thousand five: Provided,
That the portion of the rate increase attributable to claims
management incentive adjustments, as determined by the compensation
programs performance council for fiscal year two thousand four
prior to the effective date of the amendment and reenactment of
this section by the Legislature in the year two thousand three,
shall not be considered a part of the employer's premium taxes and
shall not be subject to collection by the commission.
(e) Claims management incentive adjustments, whether imposed
in a manner that would result in either a debit or a credit to any
employer's account, shall not be considered by the board of
managers in its future rate determinations.
§23-2-5. Application; payment of premium taxes; gross wages;
payroll report; deposits; delinquency; default;
reinstatement; payment of benefits; notice to
employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation fund,
each employer who is required to subscribe to the fund or who
elects to subscribe to the fund shall pay premium taxes calculated
as a percentage of the employer's gross wages payroll as defined by
the commission at the rate determined by the commission and then in effect plus any additional premium taxes developed from rates,
surcharges or assessments as determined by the commission. At the
time each employer subscribes to the fund, the application required
by the commission shall be filed and a premium deposit equal to the
first quarter's estimated premium tax payment shall be remitted.
The minimum quarterly or other reporting period premium to be paid
by any employer is twenty-five dollars.
(1) Thereafter, the premium taxes shall be paid quarterly or
at other payment intervals established by the commission on or
before the last day of the month following the end of the quarter
or designated payment interval 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 or
other designated payment interval. The commission may require
employers, in accordance with the provisions of rules proposed by
the executive director and promulgated by the board of managers, to
report gross wages and pay premium taxes monthly or at other
intervals.
(2) Every subscribing employer shall make a gross wages
payroll report to the commission for the preceding reporting
period. The report shall be on the form or forms prescribed by the
commission and shall contain all information required by the
commission.
(3) After subscribing to the fund, each employer shall remit with each premium tax payment an amount calculated to be sufficient
to maintain a premium deposit equal to the premium payment for the
previous reporting period. The commission may reduce the amount of
the premium deposit required from seasonal employers for those
reporting periods during which employment is significantly reduced.
If the employer pays premium tax on a basis other than quarterly,
the commission may require the deposit to be based upon some other
time period. The premium deposit shall be credited to the
employer's account on the books of the commission and used to pay
premium taxes and any other sums due the fund when an employer
becomes delinquent or in default as provided in this article.
(4) All premium taxes and premium deposits required by this
article to be paid shall be paid by the employers to the
commission, which shall maintain a record of all sums so received.
Any sum mailed to the commission is considered to be received on
the date the envelope transmitting it is postmarked by the United
States postal service. All sums received by the commission shall
be deposited in the state treasury to the credit of the workers'
compensation commission in the manner now prescribed by law.
(5) The commission shall encourage employer efforts to create
and maintain safe workplaces, to encourage loss prevention programs
and to encourage employer-provided wellness programs, through the
normal operation of the experience rating formula, seminars and
other public presentations, the development of model safety programs and other initiatives as may be determined by the
executive director and the board of managers.
(b) Failure of an employer to timely pay premium taxes as
provided in subsection (a) of this section, to timely file a
payroll report or to maintain an adequate premium deposit shall
cause the employer's account to become delinquent. No employer
will be declared delinquent or be assessed any penalty for the
delinquency if the commission determines that the delinquency has
been caused by delays in the administration of the fund. The
commission shall, in writing, within sixty days of the end of each
reporting period notify all delinquent employers of their failure
to timely pay premium taxes, to timely file a payroll report or to
maintain an adequate premium deposit. Each employer who fails to
timely file any payroll report or timely pay the premium tax due
with the report, or both, for any reporting period commencing on
and after the first day of July, one thousand nine hundred ninety-
five, shall pay a late reporting or payment penalty of the greater
of fifty dollars or a sum obtained by multiplying the premium tax
due with the report by the penalty rate applicable to that
reporting period. The penalty rate to be used in a workers'
compensation commission's fiscal year is calculated annually on the
first day of each fiscal year. The penalty rate used to calculate
the penalty for each reporting period 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 is the rate published in the Wall
Street Journal on the last business day of the commission's prior
fiscal year reflecting the base rate on corporate loans posted by
at least seventy-five percent of the nation's thirty largest banks.
The late penalty shall be paid with the most recent reporting
period's report and payment and is due when that reporting period's
report and payment are filed. If the late penalty is not paid when
due, it may be charged to and collected by the commission from the
employer's premium deposit account or otherwise as provided by law.
The notification shall demand the filing of the delinquent payroll
report and payment of delinquent premium taxes, the penalty for
late reporting or payment of premium taxes or premium deposit, the
interest penalty and an amount sufficient to maintain the premium
deposit before the end of the third month following the end of the
preceding 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 commission notifies an employer of the
delinquent status of its account, the notification shall explain
the legal consequence of subsequent default by an employer required
to subscribe to the fund and the legal consequences of termination
of an electing employer's account.
(d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve the delinquency within the
prescribed period, shall place the account in default and shall
deprive the default employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer is liable as provided in section eight of this
article. The default employer's liability under these sections is
retroactive to midnight of the last day of the month following the
end of the reporting period for which the delinquency occurs. The
commission shall notify the default employer of the method by which
the employer may be reinstated with the fund. The commission shall
also notify the employees of the employer by written notice as
hereinafter provided 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 the employer to pay into the workers'
compensation fund and shall deprive the employer and the employees
of the default elective employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer is liable as provided in section eight of this
article. The default employer's liability under that section is
retroactive to midnight of the last day of the month following the
end of the payment period 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 the protection terminated at the time of their
employer's default.
(f) (1) Except as provided 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
commission and payment into the fund of all unpaid premiums, an
adequate premium deposit, accrued interest and the penalty for late
reporting and payment. Interest is calculated as provided by
section thirteen of this article.
The commission shall not have the authority to waive either
premium or accrued interest: Provided, That until termination of
the commission, the commissioner shall have the authority to waive
either premium or accrued interest if the waiver is part of the
full and final resolution of administrative or civil litigation.
The provisions of section seventeen of this article apply to any
action or decision of the commission under this section.
(2) The commission may restore a defaulted or terminated employer through a reinstatement agreement. The reinstatement
agreement shall require the payment in full of all premium taxes,
premium deposits, the penalty for late reporting and payment, past
accrued interest and future interest calculated pursuant to the
provisions of section thirteen of this article. Notwithstanding
the filing of a reinstatement application or the entering into of
a reinstatement agreement, the commission is authorized to file a
lien against the employer as provided by section five-a of this
article. In addition, entry into a reinstatement agreement is
discretionary with the commission. Its discretion shall be
exercised in keeping with the fiduciary obligations owed to the
workers' compensation fund. If the commission declines to enter
into a reinstatement agreement and if the employer does not comply
with the provisions of subdivision (1) of this subsection, the
commission may proceed with any of the collection efforts provided
by section five-a of this article or as otherwise provided by this
code. Applications for reinstatement shall: (A) Be made upon forms
prescribed by the commission; (B) include a report of the gross
wages payroll of the employer which had not been reported to the
commission during the entire period of delinquency and default.
The gross wages information shall be certified by the employer or
its authorized agent; and (C) include a payment of a portion of the
liability equal to one half of one percent of the gross payroll
during the period of delinquency and default or equal to another portion of the liability determined 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
is entitled to the benefits and protection of this chapter on the
day a properly completed and acceptable application which is
accompanied by the application payment is received by the
commission: Provided, That if the commission reinstates an employer
subject to the terms of a reinstatement agreement, the subsequent
failure of the employer to make scheduled payments or to pay
accrued or future interest in accordance with the reinstatement
agreement or to timely file current reports and to pay current
premiums within the month following the end of the period for which
the report and payment are due, or to otherwise maintain its
account in good standing or, if the reinstatement agreement does
not require earlier restoration of the premium deposit, to restore
the premium deposit to the required amount by the end of the
repayment period shall cause the reinstatement application and the
reinstatement agreement to be null, void and of no effect, and the
employer is denied the benefits and protection of this chapter
effective from the date that the employer's account originally
became delinquent.
(3) Any employer who fails to maintain its account in good
standing with regard to subsequent premium taxes and premium
deposits after filing an application for reinstatement and prior to the final resolution of an application for reinstatement by
entering into a reinstatement agreement or by payment of the
liability in full as provided 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 the
employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a reinstatement agreement, the commission may make
and continue with any of the collection efforts provided 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 commission shall notify the employees of the
employer of the termination in the manner as the commission may
consider best and sufficient.
(3) Notice to employees provided in this section shall be
given by posting written notice that the employer is defaulted
under the compensation law of West Virginia and in the case of
employers required by this chapter to subscribe and pay premiums to
the fund, that the defaulted employer is liable to its employees
for injury or death, both in workers' compensation benefits and in
damages at common law or by statute; and in the case of employers
not required by this chapter to subscribe and pay premiums to the
fund, but voluntarily electing to do so as provided in this
article, that neither the employer nor the employees are protected
by the law as to any injury or death sustained after the date
specified in the notice. The notice shall be in the form
prescribed by the commission and shall be posted in a conspicuous
place at the chief works of the employer, as it appears in records
of the commission. If the chief works of the employer cannot be
found or identified, the notices shall be posted at the front door
of the courthouse of the county in which the chief works are located, according to the commission's records. Any person who
shall, prior to the reinstatement of the employer, as provided in
this section, or prior to sixty days after the posting of the
notice, whichever shall first occur, remove, deface or render
illegible the notice, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined one thousand dollars. The
notice shall state this provision upon its face. The commission
may require any sheriff, deputy sheriff, constable or other
official of the state of West Virginia, authorized to serve civil
process, to post the notice and to make return thereof of the fact
of the posting to the commission. Any failure of the officer to
post any notice within ten days after he or she has received the
notice from the commission, without just cause or excuse,
constitutes a willful failure or refusal to perform a duty required
of him or her by law within the meaning of section twenty-eight,
article five, chapter sixty-one of this code. Any person actually
injured by reason of the failure has an action against the
official, and upon any official bond he or she may have given, for
the damages as the person may actually have incurred, but not to
exceed, in the case of any surety upon the bond, the amount of the
penalty of the bond. Any official posting the notice as required
in this subdivision is entitled to the same fee as is now or may
hereafter be provided for the service of process in suits
instituted in courts of record in the state of West Virginia. The fee shall be paid by the commission out of any funds at its
disposal, but shall be charged by the commission against the
account of the employer to whose delinquency the notice relates.
§23-2-5a. Collection of premiums from defaulting employers;
interest and penalties; civil remedies; creation
and enforcement of lien against employer and
purchaser; duty of secretary of state to
register liens; distraint powers; insolvency
proceedings; secretary of state to withhold
certificates of dissolution; injunctive relief;
bond; attorney fees and costs.
(a) The workers' compensation commission in the name of the
state may commence a civil action against an employer who, after
due notice, defaults in any payment required by this chapter. If
judgment is against the employer, the employer shall pay the costs
of the action. A civil action under this section shall be given
preference on the calendar of the court over all other civil
actions. Upon prevailing in a civil action, the commission is
entitled to recover its attorneys' fees and costs of action from
the employer.
(b) In addition to the provisions of subsection (a) of this
section, any payment, interest and penalty due and unpaid under
this chapter is a personal obligation of the employer immediately due and owing to the commission and shall, in addition, be a lien
enforceable against all the property of the employer: Provided,
That the lien shall not be enforceable as against a purchaser
(including a lien creditor) of real estate or personal property for
a valuable consideration without notice, unless docketed as
provided in section one, article ten-c, chapter thirty-eight of
this code: Provided, however, That the lien may be enforced as
other judgment liens are enforced through the provisions of said
chapter and the same is considered deemed by the circuit court to
be a judgment lien for this purpose.
(c) In addition to all other civil remedies prescribed, the
commission may in the name of the state, after giving appropriate
notice as required by due process, distrain upon any personal
property, including intangible property, of any employer delinquent
for any payment, interest and penalty thereon. If the commission
has good reason to believe that the property or a substantial
portion of the property is about to be removed from the county in
which it is situated, upon giving appropriate notice, either before
or after the seizure, as is proper in the circumstances, the
commission may likewise distrain in the name of the state before
the delinquency occurs. For that purpose, the commission may
require the services of a sheriff of any county in the state in
levying the distress in the county in which the sheriff is an
officer and in which the personal property is situated. A sheriff collecting any payment, interest and penalty thereon is entitled to
the compensation as provided by law for his or her services in the
levy and enforcement of executions. Upon prevailing in any
distraint action, the commission is entitled to recover its
attorneys' fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter is operated in
connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction the
business is operated shall, by the entry of a proper order or
decree in the cause, make provisions, so far as the assets in
administration will permit, for the regular payment of the
payments, interest and penalties as they become due.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by the commission that all
payments, interest and penalties thereon against the corporation
which is an employer under this chapter have been paid or that
provision satisfactory to the commission has been made for payment.
(f) In any case when an employer required to subscribe to the
fund defaults in payments of premium, premium deposits, penalty or
interest thereon, for as many as two reporting periods, which reporting periods need not be consecutive, and remains in default
after due notice, the commission may bring action in the circuit
court of Kanawha County to enjoin the employer from continuing to
carry on the business in which the liability was incurred:
Provided, That the commission may as an alternative to this action
require the delinquent employer to file a bond in the form
prescribed by the commission with satisfactory surety in an amount
not less than fifty percent more than the payments, interest and
penalties due.
§23-2-9. Election of employer or employers' group to be self-
insured and to provide own system of
compensation; exceptions; catastrophe coverage;
self administration; rules; penalties;
regulation of self-insurers.
(a) Notwithstanding any provisions of this chapter to the
contrary, the following types of employers or employers' groups may
apply for permission to self-insure their workers' compensation
risk including their risk of catastrophic injuries.
(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;
(B) Any employer or group of employers as provided for
subdivision (c) of such capability and financial responsibility who
maintains its own benefit fund or system of compensation to which
its employees are not required or permitted to contribute and whose
benefits are at least equal in value to those provided for in this
chapter; or
(C) Any employer who is signatory to a collective bargaining
agreement that allows for participation in a group workers'
compensation insurance program may join with any other employer or
employers that are signatory to a collective bargaining agreement
or agreements that allow for participation in a group workers'
compensation program and jointly apply to the commission to
collectively self-insure their obligations under this chapter. The
employers must collectively meet the conditions set forth in
paragraph (A) or (B) of this subdivision. There shall be joint and
several liability for all employers who choose to jointly self-
insure under the provisions of this article.
(2) In order to be approved for self-insurance status, the
employer shall:
(A) Have an effective health and safety program at its
workplaces; and
(B) Provide security or bond in an amount and form determined
by the executive director with the approval of the board of
managers which shall balance the employer's financial condition based upon an analysis of its audited financial statements and the
full accrued value of current liability for future claim payments
based upon generally accepted actuarial and accounting principles
of the employer's existing and expected liability.
(3) Any employer whose record upon the books of the commission
shows a liability, as determined on an accrued basis against the
workers' compensation fund incurred on account of injury to or
death of any of the employer's employees, in excess of premiums
paid by the employer, shall not be granted the right, individually
and directly or from the benefit funds or system of compensation,
to be self-insured until the employer has paid into the workers'
compensation fund the amount of the excess of liability over
premiums paid, including the employer's proper proportion of the
liability incurred on account of catastrophes or second injuries as
defined in section one, article three of this chapter and charged
against such fund.
(4) Upon a finding that the employer has met all of the
requirements of this section, the employer may be permitted
self-insurance status. An annual review of each self-insurer's
continuing ability to meet its obligations and the requirements of
this section shall be made by the workers' compensation commission.
This review shall include a redetermination of the amount of
security or bond which shall be provided by the employer. Failure
to provide any new amount or form of security or bond may cause the employer's self-insurance status to be terminated by the workers'
compensation commission. The security or bond provided by
employers prior to the second day of February, one thousand nine
hundred ninety-five, shall continue in full force and effect until
the performance of the employer's annual review and the entry of
any appropriate decision on the amount or form of the employer's
security or bond.
(5) Whenever a self-insured employer furnishes security or
bond, including replacement and amended bonds and other securities,
as surety to ensure the employer's or guarantor's payment of all
obligations under this chapter for which the security or bond was
furnished, the security or bond shall be in the most current form
or forms approved and authorized by the commission for use by the
employer or its guarantors, surety companies, banks, financial
institutions or others in its behalf for that purpose.
(b) (1) Notwithstanding any provision in this chapter to the
contrary, self-insured employers shall, effective the first day of
July, two thousand four, administer their own claims. The
executive director shall, pursuant to rules promulgated by the
board of managers, regulate the administration of claims by
employers granted permission to self-insure their obligations under
this chapter. Such rules shall be promulgated at least thirty days
prior to the first day of July, two thousand four. A self-insured
employer shall comply with rules promulgated by the board of managers governing the self-administration of its claims.
(2) An employer or employers' group who self-insures its risk
and self-administers its claims shall exercise all authority and
responsibility granted to the commission in this chapter and
provide notices of action taken to effect the purposes of this
chapter to provide benefits to persons who have suffered injuries
or diseases covered by this chapter. An employer or employers'
group granted permission to self-insure and self-administer its
obligations under this chapter shall at all times be bound and
shall comply fully with all of the provisions of this chapter.
Furthermore, all of the provisions contained in article four of
this chapter pertaining to disability and death benefits are
binding on and shall be strictly adhered to by the self-insured
employer in its administration of claims presented by employees of
the self-insured employer. Violations of the provisions of this
chapter and such rules relating to this chapter as may be approved
by the board of managers may constitute sufficient grounds for the
termination of the authority for any employer to self-insure its
obligations under this chapter. Claim notices currently generated
by the commission on behalf of self-insured employers must be
generated and sent by the self-insured employer or its third-party
administrator.
(c) Each self-insured employer shall, on or before the last
day of the first month of each quarter or other assigned reporting period, file with the commission a certified statement of the total
gross wages and earnings of all of the employer's employees subject
to this chapter for the preceding quarter or other assigned
reporting period. Each self-insured employer shall pay into the
workers' compensation fund as portions of its self-insured employer
premium tax:
(1) A sum sufficient to pay the employer's proper portion of
the expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of
the expense of claims for those employers who are in default in the
payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of the
expenses of the disabled workers' relief fund;
(4) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter or other assigned reporting
period's payment of each of the foregoing three sums;
(5) A sum as determined by the commission to be sufficient to
pay the employer's portion of rates, surcharges or deficit
management and deficit reduction assessments; and
(6) A sum as determined by the commission to pay the
employer's portion of self-insured catastrophic injury benefits,
and second injury payments on all self-insured second injury claims
other than second injury claims for those employers self-insured
for second injury. Any employer previously self-insured for second injury benefits shall continue to be responsible for payment of
those benefits.
(d) The required payments to the employer's injured employees
or dependents of fatally injured employees as benefits provided for
by this chapter including second injury benefits and catastrophic
injury benefits, if applicable, shall constitute the remaining
portion of the self-insurer's premium tax.
(e) Notwithstanding any provision of subsection (d) of this
section to the contrary, except for those increases made effective
for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code taken prior to the
effective date of the amendment and reenactment of this section,
the portion of the premium taxes for each self-insured employer as
determined under subdivisions (1) through (6), inclusive,
subsection (c) of this section shall not be increased during fiscal
years two thousand four, two thousand five and two thousand six.
(f)(1) If an employer defaults in the payment of any portion
of its self-insured employer premium taxes, surcharges or
assessments, the commission shall, in an appropriate case,
determine the full accrued value based upon generally accepted
actuarial and accounting principles of the employer's liability
including the costs of all awarded claims and of all incurred but
not reported claims. The amount determined may, in an appropriate case, be assessed against the employer. The commission may demand
and collect the present value of the defaulted tax liability.
Interest shall accrue upon the demanded amount as provided for in
section thirteen of this article until the premium tax is fully
paid. Payment of all amounts then due to the commission and to the
employer's employees is a sufficient basis for reinstating the
employer to good standing with the fund. In addition, any self-
insured employer who, without good cause, ceases to make required
payments to the employer's injured employees or dependents of
fatally injured employees as benefits provided for by this chapter
including second injury benefits and catastrophic injury benefits,
if applicable, is in default. The board of managers shall
establish by rule the procedures by which the existence or
nonexistence of good cause is to be determined by the commission.
(2) Premium tax assessments are special revenue taxes under
and according to the provisions of state workers' compensation law
and are considered to be tax claims, as priority claims or
administrative expense claims according to those provisions under
the law provided in the United States bankruptcy code, Title 11 of
the United States Code. In addition, as the same was previously
intended by the prior provisions of this section, this amendment
and reenactment is for the purpose of clarification of the taxing
authority of the workers' compensation commission.
(g) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury risk as defined in subsection
(c), section one, article three of this chapter. A self-insured
employer who elects to insure its catastrophic risk through a
policy of excess insurance obtained through a private insurance
carrier approved by the commission shall provide a copy of the
policy to the commission. Upon termination of the commission,
self-insured employers shall either self-insure their catastrophic
risk or insure their catastrophic risk through a policy of excess
insurance obtained through a private insurance carrier approved by
the insurance commissioner. Self-insured employers shall also
reinsure their catastrophic risks.
(1) If the employer does not elect to self-insure its
catastrophic risk, 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 that section. As
stated in this subsection, this option shall expire upon
termination of the commission. If the employees of that employer
suffer injury or death from a catastrophe, 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. Any portion of an employer's
catastrophic liability insured and paid under a policy of insurance
purchased by the employer shall not be included in the liabilities
upon which the employer's security or bond is determined in subsection (a) of this section.
(2) If an otherwise self-insured employer elects to self-
insure its catastrophic risk, the security or bond required in
subsection (a) of this section shall include the liability for the
catastrophic risk.
(h) For those employers previously permitted to self-insure
their second injury risks, the amount of the security or bond
required in subsection (a) of this section shall include the
liability for that risk. All benefits provided for by this chapter
which are awarded to the employer's employees which constitute
second injury life awards shall be paid by the employer and not the
commission.
(i) The commission may create, implement, establish and
administer a perpetual self-insurance security risk pool of funds,
sureties, securities, insurance provided by private insurance
carriers or other states' programs, and other property, of both
real and personal properties, to secure the payment of obligations
of self-insured employers. If a pool is created, the board of
managers shall adopt rules for the organizational plan,
participation, contributions and other payments which may be
required of self-insured employers under this section. The board
of managers may adopt a rule authorizing the commission to assess
each self-insured employer in proportion according to each
employer's portion of the unsecured obligation and liability or to assess according to some other method provided for by rule which
shall properly create and fund the risk pool to serve the needs of
employees, employers and the workers' compensation fund by
providing adequate security. The board of managers, in
establishing a security risk pool, may authorize the executive
director to use any assessments, premium taxes and revenues and
appropriations as may be made available to the commission.
Effective upon termination of the commission, all statutory and
regulatory authority provided to the commission and board of
managers over pools created pursuant to this section shall transfer
to the insurance commissioner: Provided, That the funds contained
in the security pool shall be deposited into the old fund and the
funds contained in the guaranty pool shall be deposited in the
self-insured employer guaranty risk pool created in article two-c
of this chapter. All assets held by the commission for security
pursuant to 85 CSR §19 (2004) shall transfer to the insurance
commissioner.
(j) Any self-insured employer which has had a period of
inactivity due to the nonemployment of employees which results in
its reporting of no wages on reports to the commission for a period
of four or more consecutive quarters shall have its status at the
commission inactivated and shall apply for reactivation to status
as a self-insured employer prior to its reemployment of employees.
Despite the inactivation, the self-insured employer shall continue to make payments on all awards for which it is responsible. Upon
application for reactivation of its status as an operating self-
insured employer, the employer shall document that it meets the
eligibility requirements needed to maintain self-insured employer
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 and, upon termination of the commission, shall
purchase workers' compensation insurance as provided for in article
two-c of this chapter, but shall continue to be a self-insurer as
to the prior period of active status and to furnish security or
bond and meet its prior self-insurance obligations.
(k) In any case under the provisions of this section that
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, the commission
may, in its discretion, at any time compute and permit to be paid
into the workers' compensation fund an amount equal to the present
value of all unpaid future payments on the award or awards for
which liability exists in trust. Thereafter, the employer shall be
discharged from any further portion of premium tax liability upon
the award or awards and payment of the award or awards shall be
assumed by the commission. Upon termination of the commission, those self-insured employers may thereafter purchase workers'
compensation insurance as provided for in article two-c of this
chapter, but said self-insured employers shall remain liable for
their self-insured employer claims liabilities.
(l) Any employer subject to this chapter, who elects to carry
the employer's own risk by being self-insured employer 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 the election's approval and during the
period that the employer is allowed to carry the employer's own
risk.
(m) An employer may not hire any person or group to self-
administer claims under this chapter as a third-party administrator
unless the person or group has been determined to be qualified to
be a third-party administrator by the commission pursuant to rules
adopted by the board of managers. Any person or group whose status
as a third-party administrator has been revoked, suspended or
terminated by the commission shall immediately cease administration
of claims and shall not administer claims unless subsequently
authorized by the commission.
(n) All regulatory, oversight, and document gathering
authority provided to the commission under section nine, article
two, chapter twenty-three shall transfer to the insurance commissioner and the industrial council upon termination of the
commission.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations; effective date.
(a) Where a compensable injury or death is caused, in whole or
in part, by the act or omission of a third party, the injured
worker or, if he or she is deceased or physically or mentally
incompetent, his or her dependents or personal representative are
entitled to compensation under the provisions of this chapter and
shall not by having received compensation be precluded from making
claim against the third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or her
personal representative makes a claim against the third party and
recovers any sum for the claim, the commission or a self-insured
employer shall be allowed statutory subrogation with regard to
medical benefits paid as of the date of the recovery. The
commission or self-insured employer shall permit the deduction from
the amount received reasonable attorney's fees and reasonable
costs. It is the duty of the injured worker, his or her
dependents, his or her personal representative, or his or her
attorney to notify the commission and the employer when the claim
is filed against the third party.
(c) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party,
there shall be, and there is hereby created, a statutory
subrogation lien upon the moneys received which shall exist in
favor of the commission or self-insured employer. Any injured
worker, his or her dependents or personal representative who
receives moneys in settlement in any manner of a claim against a
third party remains subject to the subrogation lien until payment
in full of the amount permitted to be subrogated under subsection
(b) of this section is paid.
(d) Effective the first day of January, two thousand six, the
commission, any successor to the commission, any other private
carrier and any self-insured employer shall be allowed statutory
subrogation with regard to all medical and indemnity benefits
actually paid as of the date of the recovery. The commission,
successor to the commission, any other private carrier and the
self-insured employer shall permit the deduction from the amount
received a reasonable attorney's fees and costs and may negotiate
the amount to accept as subrogation. It is the duty of the injured
worker, his or her dependents, his or her personal representative
or his or her attorney to give reasonable notice to the commission,
successor to the commission, any other private carrier, or the
self-insured employer after a claim is filed against the third
party and prior to the disbursement of any third party recovery.
The statutory subrogation described in this section does not apply to uninsured and underinsured motorist coverage or any other
insurance coverage purchased by the injured worker or on behalf of
the injured worker. If the injured worker obtains a recovery from
a third party and the injured worker, personal representative or
the injured worker's attorney fails to protect the statutory right
of subrogation created herein, the injured worker, personal
representative and the injured worker's attorney shall lose the
right to retain attorney fees and costs out of the subrogation
amount. In addition, such failure creates a cause of action for
the private carrier or self-insured employer against the injured
worker, personal representative and the injured worker's attorney
for the amount of the full subrogation amount and the reasonable
fees and costs associated with any such cause of action. The right
of subrogation granted by the provisions of this subsection shall
not attach to any claim arising from a right of action which arose
or accrued, in whole or in part, prior to the effective date of the
amendment and reenactment of this section during the year two
thousand five.
(e) The right of subrogation granted the commission in
subsections (a) through (c), inclusive, of this section shall be
exercised by the insurance commissioner and his or her designated
administrator of the old fund, as set forth in article two-c of
this chapter, for any claim arising from a right of action which
arose or accrued, in whole or in part, prior to the effective date of the amendment and reenactment of this section during the year
two thousand five. The insurance commissioner and his or her
designated administrator shall be paid a recovery fee of ten
percent of the actual amount recovered through subrogation with the
remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-1. Findings and purpose.
(a) The Legislature finds that:
(1) There is a long-term actuarial funding crisis in the
state-run monopolistic workers' compensation system;
(2) Similar short-term and long-term crises have been ongoing
during the past two decades;
(3) During the current crisis, employers in West Virginia find
it increasingly difficult to afford the rates charged by the
workers' compensation commission for workers' compensation coverage
and that paying said rates adversely impacts employers' ability to
compete in a global economic environment;
(4) The cost of obtaining workers' compensation coverage from
the state system may result in many employers leaving the state;
(5) Employers' access to competitive workers' compensation
rates and the resulting economic development benefit is of utmost
importance to the citizens of West Virginia;
(6) A mechanism is needed to provide an enduring solution to
this recurring workers' compensation crisis;
(7) An employers' mutual insurance company or a similar entity
has proven to be a successful mechanism in other states for helping
employers secure insurance and for stabilizing the insurance
market;
(8) There is a substantial public interest in creating a
method to provide a stable workers' compensation insurance market
in this state;
(9) The state-run workers' compensation program is a
substantial actual and potential liability to the state;
(10) There is substantial public benefit in transferring
certain actual and potential future liability of the state to the
private sector and creating a stable self-sufficient entity which
will be a potential source of workers' compensation coverage for
employers in this state;
(11) A stable, financially viable insurer in the private
sector will aid in providing a continuing source of insurance funds
to compensate injured workers; and
(12) Because the public will greatly benefit from the
formation of an employers' mutual insurance company, state efforts
to encourage and support the formation of such an entity, including
providing funding for the entity's initial capital, is in the clear
public interest.
(b) The purpose of this article is to create a mechanism for
the formation of an employers' mutual insurance company that will provide:
(1) A means for employers to obtain workers' compensation
insurance that is reasonably available and affordable; and
(2) Compensation to employees of mutual policyholders who
suffer work place injuries as defined in chapter twenty-three of
this code.
§23-2C-2. Definitions.
(a) "Executive director" means the executive director of the
West Virginia workers' compensation commission as provided in
section one-b, article one, chapter twenty-three of this code.
(b) "Commission" means the West Virginia workers' compensation
commission as provided by section one, article one, chapter twenty-
three of this code.
(c) "Insurance commissioner" means the insurance commissioner
of West Virginia as provided in section one, article two, chapter
thirty-three of this code.
(d) "Company" or "successor to the commission" means the
employers' mutual insurance company created pursuant to the terms
of this article.
(e) "Policy default" shall mean a policyholder that has failed
to comply with the terms of its workers' compensation insurance
policy and is consequently without workers' compensation insurance
coverage.
(f) "Industrial insurance" means insurance which provides all compensation and benefits required by chapter twenty-three of this
code.
(g) "Insurer" includes:
(1) A self-insured employer; and
(2) A private carrier.
(h) "Industrial council" means the advisory group established
in section five of this article.
(i) "Mutualization transition fund" shall be a fund over which
the state treasurer is custodian. Moneys transferred or otherwise
payable to the mutualization transition fund shall be deposited in
the state treasury to the credit of the mutualization transition
fund. Disbursements shall be made from the mutualization
transition fund upon requisitions signed by the executive director,
and, upon termination of the commission, the insurance
commissioner, and shall be reasonably related to the legal,
operational, consultative and human resource related expenses
associated with the establishment of the company and the
transferring of personnel from the commission to the company.
(j) "New fund" shall mean a fund owned and operated by the
commission and, upon termination of the commission, the successor
organization of the West Virginia workers' compensation commission
and shall consist of those funds transferred to it from the
workers' compensation fund and any other applicable funds. New fund
shall include all moneys due and payable to the workers' compensation fund for the quarters ending the thirtieth day of
September, two thousand five and the thirty-first day of December,
two thousand five, which have not been collected by the workers'
compensation fund as of the thirty-first day of December, two
thousand five.
(k) "New fund liabilities" shall mean all claims payment
obligations (indemnity and medical expenses) for all claims, actual
and incurred but not reported, for any claim with a date of injury
or last exposure on or after the first day of July, two thousand
five: Provided, That new fund liabilities shall begin with claims
payments becoming due and owing on said claims on or after the
first day of January, two thousand six.
(l) "Old fund" shall mean a fund held by the state treasurer's
office consisting of those funds transferred to it from the
workers' compensation fund or other sources and those funds due and
owing the workers' compensation fund as of the thirtieth day of
June, two thousand five that are thereafter collected. The old
fund and assets therein shall remain property of the state and
shall not novate or otherwise transfer to the company.
(m) "Old fund liabilities" mean all claims payment obligations
(indemnity and medical expenses), related liabilities and
appropriate administrative expenses necessary for the
administration of all claims, actual and incurred but not reported,
for any claim with a date of injury or last exposure on or before the thirtieth day of June, two thousand five: Provided, That old
fund liabilities shall include all claims payments for any claim,
regardless of date of injury or last exposure, through the thirty-
first day of December, two thousand five: Provided, however, That
old fund liabilities shall include all claims with dates of
injuries or last exposure prior to the first day of July, two
thousand four for bankrupt self-insured employers that had
defaulted on their claims obligations which have been recognized by
the commission in its actuarially determined liability number as of
the thirtieth day of June, two thousand five.
(n) "Private carrier" means any insurer or the legal
representative of an insurer authorized by the insurance
commissioner to provide workers' compensation insurance pursuant to
this chapter and which maintains an office in the state. The term
does not include a self-insured employer or private employers but
shall include any successor to the commission.
(o) "Uninsured employer fund" means a fund held by the state
treasurer's office consisting of those funds transferred to it from
the workers' compensation fund and any other source. Disbursements
from the uninsured employer fund shall be upon requisitions signed
by the insurance commissioner and the administrator of the fund,
and as otherwise set forth in an exempt legislative rule
promulgated by the workers' compensation board of managers.
(p) "Self-insured employer guaranty risk pool" shall be a fund held by the state treasurer's office consisting of those funds
transferred to it from the guaranty pool created pursuant to 85 CSR
§19 (2004) and any future funds collected through continued
administration of that exempt legislative rule as administered by
the insurance commissioner. Disbursements shall be made from the
self-insured employer guaranty risk pool upon requisitions signed
by the insurance commissioner and the administrator of the fund.
The obligations of the fund shall be as provided in 85 CSR §19
(2004). The company shall administer the self-insured employer
guaranty risk pool for a term and administrative fee as provided in
the administration of the old fund.
(q) "Self-insured employer security risk pool" shall be a fund
held by the state's treasurer consisting of those funds paid into
it through the insurance commissioner's administration of 85 CSR
§19 (2004). Disbursement from said fund shall be made from the
self-insured employer security risk pool upon requisitions signed
by the insurance commissioner and the administrator of the fund.
The obligations of the fund shall be as provided in 85 CSR §19:
Provided, That said liabilities shall be limited to those self-
insured employers who default on their claims obligations after the
termination of the commission. The company shall administer the
self-insured employer security risk pool for a term and
administrative fee as provided in the administration of the old
fund.
(r) "Private carrier guaranty fund" shall be a fund held by
the state treasurer's office consisting of funds deposited pursuant
to this article. Disbursements shall be made from the private
carrier guaranty fund upon requisitions signed by the insurance
commissioner and the administrator of the fund. The obligations of
the fund shall be as provided in this article. The company shall
administer the private carrier guaranty fund for a term and
administrative fee as provided in the administration of the old
fund.
(s) "Assigned risk fund" shall be a fund held by the state
treasurer's office consisting of funds deposited pursuant to this
article. Disbursements shall be made from the assigned risk fund
upon requisitions signed by the insurance commissioner. The
obligations of the fund shall be as provided in this article.
(t) "Comprehensive financial plan" shall mean the plan
compiled by the director for acceptance by the insurance
commissioner identifying and forecasting cash flows, funding
sources, debt terms and structures, and scheduled amortization and
permanent resolution of all old fund liabilities. The
comprehensive financial plan shall provide for the retirement of
the revenue bonds authorized by article two-d, chapter twenty-three
of this code and all realized and potential claims against the old
fund shall be fully reserved. The comprehensive financial plan may
include any other information the insurance commissioner may require as a basis for managing the post-transition fiscal
soundness of the old fund.
§23-2C-3. Creation of employer mutual as successor organization
of the West Virginia workers' compensation
commission.
(a) On or before the first day of June, two thousand five, the
executive director may take such actions as are necessary to
establish an employers' mutual insurance company as a domestic,
private, nonstock, corporation to:
(1) Insure employers against liability for injuries and
occupational diseases for which their employees may be entitled to
receive compensation pursuant to chapter twenty-three of this code
and federal Longshore and Harbor Workers' Compensation Act, 33 U.
S. C. §901, et seq.;
(2) Provide employer's liability insurance incidental to and
provided in connection with the insurance specified in paragraph
(1), including coal-workers pneumoconiosis coverage and employer
excess liability coverage as provided in this chapter; and
(3) Transact such other kinds of property and casualty
insurance for which the company is otherwise qualified under the
provisions of this code.
(4) The company shall not sell, assign or transfer substantial
assets or ownership of the company.
(b) If the executive director establishes a domestic mutual insurance company pursuant to subsection (a) of this section:
(1) As soon as practical, the company established pursuant to
the provisions of this article shall, through a vote of a majority
of its provisional board, file its corporate charter and bylaws
with the insurance commissioner and apply for a license with the
insurance commissioner to transact insurance in this state.
Notwithstanding any other provision of this code, the insurance
commissioner shall act on the documents within fifteen days of the
filing by the company.
(2) In recognition of the workers' compensation insurance
liability insurance crisis in this state at the time of enactment
of this article and the critical need to expedite the initial
operation of the company, the Legislature hereby authorizes the
insurance commissioner to review the documentation submitted by the
company and to determine the initial capital and surplus
requirements of the company, notwithstanding the provisions of
section five-b, article three of chapter thirty-three. The company
shall furnish the insurance commissioner with all information and
cooperate in all respects necessary for the insurance commissioner
to perform the duties set forth in this section and in other
provisions of this chapter and chapter thirty-three. The insurance
commissioner shall monitor the economic viability of the company
during its initial operation on not less than a monthly basis,
until such time as the commissioner in his or her discretion, determines that monthly reporting is not necessary. In all other
respects the company shall be subject to comply with the applicable
provisions of chapter thirty-three of this code.
(3) Subject to the provisions of subsection (4) of this
section, the insurance commissioner may waive other requirements
imposed on mutual insurance companies by the provisions of chapter
thirty-three as the insurance commissioner determines is necessary
to enable the company to begin insuring employers in this state at
the earliest possible date.
(4) Within forty months of the date of the issuance of its
license to transact insurance, the company shall comply with the
capital and surplus requirements set forth in subsection (a),
section five-b, article three, chapter thirty-three of this code in
effect on the effective date of this enactment, unless said
deadline is extended by the insurance commissioner.
(c) For the duration of its existence, the company is not and
shall not be considered a department, unit, agency, or
instrumentality of the state for any purpose. All debts, claims,
obligations and liabilities of the company, whenever incurred,
shall be the debts, claims, obligations and liabilities of the
company only and not of the state or of any department, unit,
agency, instrumentality, officer or employee of the state.
(d) The moneys of the company are not and shall not be
considered part of the general revenue fund of the state. The debts, claims, obligations and liabilities of the company are not
and shall not be considered a debt of the state or a pledge of the
credit of the state.
(e) The company is not subject to provisions of article nine-
a, chapter six of this code; the provisions of chapter twenty-nine-
b of this code; the provisions of article three, chapter five-a of
this code; the provisions of article six, chapter twenty-nine of
this code; the provisions of article six-a of said chapter; or the
provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon said
termination, private carriers, including the company, shall not be
subject to payment of premium taxes, surcharges and credits
contained in article three of chapter thirty-three of this code on
premiums received for coverage under this chapter. In lieu
thereof, the workers' compensation insurance market shall be
subject to the following:
(1) Each fiscal year, the insurance commissioner shall
calculate a percentage surcharge to be collected by each private
carrier from its policy holders. The surcharge percentage shall be
calculated by dividing the previous fiscal year's total premiums
collected plus deductible payments by all employers into the
portion of the insurance commissioner's budget amount attributable
to regulation of the private carrier market. This resulting
percentage shall be applied to each policy holder's premium payment and deductible payments as a surcharge and remitted to the
insurance commissioner. Said surcharge shall be remitted within
ten (10) days of receipt of premium payments, whenever said
payments are made by its insureds;
(2) Each fiscal year, the insurance commissioner shall
calculate a percentage surcharge to be remitted on a monthly basis
by self-insured employers and said percentage shall be calculated
by dividing previous year's self-insured payroll in the state into
the portion of the insurance commissioner's budget amount
attributable to regulation of the self-insured employer market.
This resulting percentage shall be applied to each self-insured
employer's monthly payroll and the resulting amount shall be
remitted as a regulatory surcharge by each self-insured employer.
The workers' compensation board of managers may promulgate a rule
for implementation of this section. The company, all other private
carriers and all self-insured employers shall furnish the insurance
commissioner with all required information and cooperate in all
respects necessary for the insurance commissioner to perform the
duties set forth in this section and in other provisions of this
chapter and chapter thirty-three. The surcharge shall be
calculated so as to only defray the costs associated with the
administration of chapter twenty-three of this code and the funds
raised shall not be used for any other purpose.
(3) Upon termination of the commission, the company and all other private carriers shall collect a premiums surcharge from
their policy holders equal to ten percent, or such higher or lower
rate as annually determined, by the first day of May of each year,
by the insurance commissioner to produce forty-five million dollars
annually, of each policy holder's periodic premium amount for
workers' compensation insurance. Additionally, by the first day of
May each year, the self-insured employer community shall be
assessed a cumulative total of nine million dollars. The
methodology for the assessment shall be fair and equitable and
determined by exempt legislative rule issued by the workers'
compensation board of managers. The amount collected shall be
remitted to the insurance commissioner for deposit in the workers'
compensation debt reduction fund created in section five, article
two-d of this chapter.
(g) The new premiums surcharge imposed by subdivision (2),
subsection (f) of this section shall sunset and not be collectible
with respect to workers' compensation insurance premiums paid when
the policy is renewed on or after the first day of the month
following the month in which the Governor certifies to the
Legislature that the revenue bonds issued pursuant to article two-
d, chapter twenty-three of this code have been retired and that the
unfunded liability of the old fund has been paid or has been
provided for in its entirety, whichever occurs last.
§23-2C-4. Governance and organization.
(a) (1) The commission shall implement the initial formation
and organization of the company as provided by this article.
(2) From the inception of the company, until the first day of
January, two thousand six, the company shall be governed by a
provisional board of directors consisting of the three-persons on
the executive committee of the workers' compensation board of
managers and four members of the Legislature. Two members of the
West Virginia Senate and two members of the West Virginia House of
Delegates shall serve as advisory nonvoting members of the board.
The Governor shall appoint the legislative members to the board.
No more than three of the legislative members shall be of the same
political party. The provisional board shall have the authority to
function as necessary to establish the company and cause it to
become operational, including the right to contract on behalf of
the company. Each voting board member shall receive compensation
of not more than three hundred fifty dollars per day and actual and
necessary expenses for each day during which he or she is required
to and does attend a meeting of the board.
(3) The provisional board shall develop procedures for the
nomination of the board of directors that will succeed the
provisional board on the first day of January, two thousand six,
and for the conduct of the election, to be held no later than the
first day of November, two thousand five, and shall give notice of
the election to the current subscribers to the workers' compensation fund. These procedures shall be exempt from the
provisions of article three, chapter twenty-nine-a of this code.
(4) Except as limited by this section and applicable insurance
rules and statutes, the company may: (1) On its own; (2) through
the formation or acquisition of subsidiaries; or (3) through a
joint enterprise, offer:
(A) Workers' compensation insurance in a state other than West
Virginia to the extent it also provides workers' compensation or
occupational disease insurance coverage to the employer pursuant to
chapter twenty-three of this code;
(B) Other workers' compensation products and services and
related products and services in West Virginia or other states; and
(C) Other property and casualty insurance in West Virginia and
other states.
(b) Effective the first day of January, two thousand six, the
company shall be governed by a board of directors consisting of
seven directors, as follows:
(1) Three owners or officers of an entity that has purchased
or will immediately upon termination of the commission purchase and
maintain an active workers' compensation insurance policy from the
company. At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise and at
least one shall be an attorney with financial management
experience.
(2) Two directors who have substantial experience as an
officer or employee of a company in the insurance industry, one of
whom is from a company with less than fifty employees;
(3) One director with general knowledge and experience in
business management who is an officer and employee of the company
and is responsible for the daily management of the company; and
(4) The chief executive officer of the company.
(c) The directors and officers of the company are to be chosen
in accordance with the articles of incorporation and bylaws of the
company. The initial board of directors selected shall serve for
the following terms: (1) Two for four-year terms; (2) two for
three-year terms; (3) two for two-year terms; and (4) one for a
one-year term. Thereafter, the directors shall serve staggered
terms of four years. No director chosen may serve more than two
consecutive terms, except for the chief executive officer of the
company. Furthermore, owners, directors, or employees of employers
otherwise licensed to write workers' compensation insurance in this
state or licensed or otherwise authorized to act as a third-party
administrator shall not be eligible to be nominated, appointed,
elected or serve on the company's board of directors.
(d) The executive director shall prepare and file articles of
incorporation and bylaws in accordance with the provisions of this
article and the provisions of chapters thirty-one and thirty-three
of this code.
§23-2C-5. Creation of the industrial council; duties.
(a) There is hereby created within the office of the insurance
commissioner an industrial council.
(b) On or before the first day of July, two thousand five, the
governor with the advice and consent of the Senate, shall appoint
five voting members to the industrial council who meet the
requirements and qualifications prescribed in this subsection. Two
members of the West Virginia Senate and two members of the West
Virginia House of Delegates shall serve as advisory nonvoting
members of the board. The governor shall appoint the legislative
members to the board. No more than three of the legislative
members may be of the same political party. The insurance
commissioner shall serve as an advisory nonvoting member of the
board.
(1) (A) Five members shall be appointed by the governor with
the advice and consent of the Senate for terms that begin upon
appointment after the effective date of this legislation and expire
as follows:
(i) One member shall be appointed for a term ending the
thirtieth day of June, two thousand seven;
(ii) Two members shall be appointed for a term ending the
thirtieth day of June, two thousand eight; and
(iii) Two members shall be appointed for a term ending the
thirtieth day of June, two thousand nine.
(B) Except for appointments to fill vacancies, each subsequent
appointment shall be for a term ending the thirtieth day of June of
the fourth year following the year the preceding term expired. In
the event a vacancy occurs, it shall be filled by appointment for
the unexpired term. A member whose term has expired shall continue
in office until a successor has been duly appointed and qualified.
No member of the council may be removed from office by the governor
except for official misconduct, incompetency, neglect of duty or
gross immorality.
(C) No appointed member may be a candidate for or hold elected
office. Members may be reappointed for no more than two full
terms.
(2) Each of the appointed voting members of the council shall
be appointed based upon his or her demonstrated knowledge and
experience to effectively accomplish the purposes of this chapter.
They shall meet the minimum qualifications as follows:
(A) Each shall hold a baccalaureate degree from an accredited
college or university: Provided, That no more than one of the
appointed voting members may serve without a baccalaureate degree
from an accredited college or university if the member has a
minimum of fifteen years' experience in his or her field of
expertise as required in this subdivision;
(B) Each shall have a minimum of ten years' experience in his
or her field of expertise. The governor shall consider the following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in insurance
claims management; expertise in insurance underwriting; expertise
in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two
hundred beneficiaries or three hundred million dollars; expertise
in workers' compensation management; expertise in loss prevention
and rehabilitation; expertise in occupational medicine demonstrated
by licensure as a medical doctor in West Virginia and experience,
board certification or university affiliation; or expertise in
similar areas of endeavor;
(C) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at
least one shall be an attorney with financial management
experience; one shall be an academician holding an advanced degree
from an accredited college or university in business, finance,
insurance or economics; and one shall represent organized labor.
(D) The council shall appoint one member to serve as
chairperson. The chairperson shall serve for a one-year term and
may serve more than one consecutive term. The council shall hold
meetings at the request of the chairperson or at the request of at
least three of the members of the council, but no less frequently
than once every three months. The chairperson shall determine the
date and time of each meeting. Three members of the council constitute a quorum for the conduct of the business of the council.
No vacancy in the membership of the council shall impair the right
of a quorum to exercise all the rights and perform all the duties
of the council. No action shall be taken by the council except
upon the affirmative vote of three members of the council.
(3) (A) Each voting appointed member of the council shall
receive compensation of not more than three hundred fifty dollars
per day for each day during which he or she is required to and does
attend a meeting of the board.
(B) Each voting appointed member of the council is entitled to
be reimbursed for actual and necessary expenses incurred for each
day or portion thereof engaged in the discharge of official duties
in a manner consistent with guidelines of the travel management
office of the department of administration.
(C) Each member of the council shall be provided appropriate
liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the state board
of risk and insurance management established pursuant to article
twelve, chapter twenty-nine of this code.
(c) The industrial council shall:
(1) In consultation with the insurance commissioner, establish
operating guidelines and policies designed to ensure the effective
administration of the workers' compensation insurance market in
West Virginia.
(2) Review and approve, reject or modify rules that are
proposed by the insurance commissioner for operation and regulation
of the workers' compensation insurance market before the rules are
filed with the secretary of state. The rules adopted by the
industrial council are not subject to sections nine through
sixteen, inclusive, article three, chapter twenty-nine-a of this
code. The industrial council shall follow the remaining provisions
of said chapter for giving notice to the public of its actions and
for holding hearings and receiving public comments on the rules.
(3) In accordance with the laws and rules of West Virginia,
establish and monitor performance standards and measurements to
ensure the timeliness and accuracy of activities performed under
chapter twenty-three of this code and applicable rules.
(4) Submit for approval by the Legislature, as an isolated and
clearly discernable component of the insurance commissioner's
budget, a budget for the sufficient administrative resources and
funding requirements necessary for their duties under this article.
(5) Perform all record and information gathering functions
necessary to carry out its duties under this code.
(6) Every two years, conduct an overview of the safety
initiatives currently being utilized or which could be utilized in
the workers' compensation insurance market and report said finding
to the joint committee on government and finance. Each private
carrier and self-insured employer shall cooperate with the council in the performance of its duties to evaluate insurer services
provided to employers in controlling losses and providing
information on the prevention of industrial accidents or
occupational diseases. Each employer, private carrier and self-
insured employer shall provide to the council, upon request, any
information, statistics or data in its records requested by the
council in the performance of these duties.
(7) Perform all other duties as specifically provided in this
chapter for the industrial council and those duties incidental
thereto.
(8) Establish a method of indexing claims of injured workers
that will make information concerning the injured workers of one
insurer available to other insurers.
(A) Every insurer shall provide information, as required by
the industrial council, for establishing and maintaining the claims
index.
(B) If an employee files a claim with an insurer, the insurer
is entitled to receive from the administrator a list of the prior
claims of the employee. If the insurer desires to inspect the
files related to the prior claims, he or she must obtain the
written consent of the employee or the insurance commissioner or
his or her designee. The use of the information contained in the
files is limited to the administration of the claim.
§23-2C-6. Creation of new fund, old fund, mutualization transition fund, uninsured employer fund, self-
insured employer guaranty risk pool, self-
insured employer security risk pool, private
carrier guaranty fund, and assigned risk fund.
(a) Effective upon the date upon which this enactment is made
effective by the Legislature, there is hereby created in the state
treasury a "workers' compensation old fund", "workers' compensation
new fund", "mutualization transition fund", "workers' compensation
uninsured employers' fund", "self-insured employer guaranty risk
pool", "self-insured employer security risk pool", "private carrier
guaranty fund" and an "assigned risk fund". The executive director
of the workers' compensation commission shall have full authority
to administer the old fund, the new fund, the mutualization
transition fund, the uninsured employers' fund, the self-insured
employer guaranty risk pool, the self-insured employer security
risk pool and the private carrier guaranty fund until termination
of the commission. As soon as practicable upon the establishment
of the mutualization transition fund, the executive director shall
cause thirty-five million dollars to be transferred from the
workers' compensation fund into the mutualization transition fund.
All unencumbered funds remaining in the mutualization transition
fund as of termination of the commission shall be transferred into
the private carrier guaranty fund or, if the proclamation set forth
in this article has not been issued, back to the workers' compensation fund. Expenditures from the funds established by this
section shall be upon appropriation of the Legislature except that
during the fiscal year ending the thirtieth day of June, two
thousand five, expenditures from the mutualization transition fund
up to amounts expended for the purposes of this article are
authorized rather than pursuant to an appropriation by the
Legislature.
(b) If the proclamation set forth in this article is issued,
then upon termination of the commission, the funds contained in the
workers' compensation fund shall be disbursed as follows: (1) A
minimum of three hundred million dollars into the workers'
compensation old fund, the exact amount of which shall be set forth
in the governor's proclamation provided in this article; (2) five
million dollars into the uninsured employers' fund; and (3) the
remainder into the new fund. Additionally, the funds contained in
the guaranty pool provided in 85 CSR §19 (2004) shall be
transferred into the self-insured employer guaranty risk pool
created in this article.
§23-2C-7. Custody, investment and disbursement of funds.
(a) The state treasurer shall be the custodian of the workers'
compensation old fund, workers' compensation uninsured employers'
fund, the self-insured employer guaranty risk pool, the self-
insured employer security risk pool, the private carrier guaranty
fund and the assigned risk pool and moneys payable to each of these funds shall be deposited in the state treasury to the credit of the
funds. Each fund shall be a separate and distinct fund upon the
books and records of the auditor and treasurer. Disbursements from
these funds shall be made upon requisitions signed by the executive
director and, effective upon termination of the commission, the
administrator of the funds and the insurance commissioner. The
workers' compensation old fund, the workers' compensation uninsured
employer fund, the self-insured employer guaranty risk pool, self-
insured employer security risk pool, the private carrier guaranty
fund and the assigned risk fund are participant plans as defined in
section two, article six, chapter twelve of this code and are
subject to the provisions of section nine-a of said article. The
funds may be invested by the investment management board in
accordance with said article.
(b) If the governor issues the proclamation set forth in this
article, then, effective upon termination of the commission, all
remaining assets and funds contained in the workers' compensation
fund which are payable to the new fund shall be so disbursed and
paid to the company by communication of the executive director to
the state treasurer or other appropriate state official prior to
the termination of the commission.
§23-2C-8. West Virginia uninsured employers' fund.
(a) The West Virginia uninsured employers' fund shall be
governed by the following:
(1) All money and securities in the fund must be held by the
state treasurer as custodian thereof to be used solely as provided
in this article.
(2) The state treasurer may disburse money from the fund only
upon written requisition of the insurance commissioner and
administrator of the fund.
(3) The insurance commissioner shall assess each private
carrier and all self-insured employers an amount to be deposited in
the fund. The assessment may be collected by each private carrier
from its policy holders in the form of a policy surcharge. To
establish the amount of the assessment, the insurance commissioner
shall determine the amount of money necessary to maintain an
appropriate balance in the fund for each fiscal year and shall
allocate a portion of that amount to be payable by private
carriers, a portion to be payable by self-insured employers, and a
portion to be paid by any other appropriate group. After
allocating the amounts payable, the insurance commissioner shall
apply an assessment rate to the:
(A) Private carriers that reflects the relative hazard of the
employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is
based upon expected annual premiums to be received;
(B) Self-insured employers that results in an equitable
distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims; and
(C) Any other categories of payees that results in an
equitable distribution of costs among them and is based upon
expected annual expenditures for claims or premium to be received.
(4) The workers' compensation board of managers may adopt
rules for the establishment and administration of the assessment
methodologies, rates, payments and any penalties that the workers'
compensation board of managers determines are necessary to carry
out the provisions of this section.
(b) Payments from the fund shall be governed by the following:
(1) Except as otherwise provided in this subsection, an
injured worker of any employer required to be covered under this
chapter who has failed to obtain coverage may receive compensation
from the uninsured employers' fund if:
(A) He or she meets all jurisdictional and entitlement
provisions of this chapter;
(B) He or she files a claim with the insurance commissioner;
and
(C) He or she makes an irrevocable assignment to the insurance
commissioner a right to be subrogated to the rights of the injured
employee.
(2) If the insurance commissioner receives a claim, it shall
immediately notify the employer of the claim. For the purposes of
this section, the employer has the burden of proving that it provided mandatory workers' compensation insurance coverage for the
employee or that it was not required to maintain workers'
compensation insurance for the employee. If the employer meets
this burden, benefits shall not be paid from the fund.
(3) Any employer who has failed to provide mandatory coverage
required by the provisions of chapter twenty-three of this code is
liable for all payments made on its behalf, including any benefits,
administrative costs and attorney's fees paid from the fund or
incurred by the insurance commissioner.
(4) The insurance commissioner:
(A) May recover from the employer the payments made by it, any
accrued interest and attorney fees and costs by bringing a civil
action in a court of competent jurisdiction.
(B) May enter into a contract with any person, including the
administrator of the uninsured employers' fund, to assist in the
collection of any liability of an uninsured employer.
(C) In lieu of a civil action, may enter into an agreement or
settlement regarding the collection of any liability of an
uninsured employer.
(5) The insurance commissioner shall:
(A) Determine whether the employer was insured within five
days after receiving notice of the claim from the employee.
(B) Assign the claim to the administrator of the fund for
administration and, if appropriate, payment of compensation.
(6) Upon determining whether the claim is accepted or denied,
the fund administrator shall notify the injured employee and the
named employer of its determination.
(7) Any party aggrieved by a determination made by the
insurance commissioner or the fund administrator regarding the
claims decisions made pursuant to this section may appeal that
determination by filing a protest with the office of judges as set
forth in article five of this chapter.
(8) An uninsured employer is liable for the interest on any
amount paid on his or her claims from the fund. The interest must
be calculated at a rate set in accordance with the provisions of
section thirteen, article two of this chapter, compounded monthly,
from the date the claim is paid from the account until payment is
received by the insurance commissioner or fund administrator from
the employer.
(9) Attorney's fees recoverable by the insurance commissioner
or administrator pursuant to this section must be paid at the usual
and customary rate for that attorney.
(10) In addition to any other liabilities provided in this
section, the insurance commissioner or the fund administrator may
impose an administrative fine of not more than ten thousand dollars
against an employer if the employer fails to provide mandatory
coverage required by this chapter. All fines and other moneys
collected pursuant to this section shall be deposited into the uninsured employer fund.
(c) The company shall be the administrator of the uninsured
employers' fund from the fund's inception and thereafter for seven
years and shall be charged with all authority and responsibilities
incidental to the administration of the fund which are necessary to
accomplish the express provisions and the intent of this chapter.
The company shall be paid a monthly administrative fee of five
percent of claims paid each month for the administration of the
fund through the thirty-first day of December, two thousand ten,
and four percent of claims paid each month for the administration
of the fund thereafter through the thirty-first day of December,
two thousand twelve. The company's administrative duties shall
include, but not be limited to, receipt of all claims, processing
said claims, providing for the payment of said claims through the
state treasurer's office or other applicable state agency and
ensuring, through the selection and assignment of counsel, that
claims decisions are properly defended. The administration of the
fund after this seven year period shall be subject to the
procedures set forth in article three, chapter five-a of this code.
(d) Employees of self-insured employers who are injured while
employed by a self-insured employer are ineligible for benefits
from the West Virginia uninsured employer fund.
§23-2C-9. West Virginia private carrier guaranty fund.
(a) The private carrier guaranty fund established in article two-c of this chapter shall provide benefits to those employees
whose employers' private carrier is found to be insolvent by a
court of competent jurisdiction in the insurer's state of domicile
or has otherwise defaulted on its payment obligations and is
subject to an administrative action by the insurance commissioner.
(b) The private carrier guaranty fund shall be funded through
assessments on each private carrier of workers' compensation
insurance. All assessments shall be deposited in the private
carrier guaranty fund established in this article. The assessment
may be collected by each carrier from its policy holders in the
form of a policy surcharge. To establish the amount of the
assessment, the insurance commissioner shall determine the amount
of money necessary to pay outstanding obligations of the defaulting
private carrier and to maintain an appropriate balance in the fund
for each fiscal year. The insurance commissioner shall apply an
assessment rate to the private carriers that reflects the relative
hazard of the employments covered by the private carriers, results
in an equitable distribution of costs among the private carriers
and is based upon expected annual premiums to be received.
(c) A defaulting private carrier shall not be permitted to
write any workers' compensation insurance in this state until it
has reimbursed the private carrier guaranty fund for any payments
made for the private carrier's unpaid obligations.
(d) Private carriers providing workers' compensation insurance shall not be subject to article twenty-six, chapter thirty-three of
this code for any premiums received for coverage provided under
this chapter.
(e) The insurance commissioner may promulgate rules to
implement the provisions of this section.
§23-2C-10. West Virginia adverse risk assignment.
(a) To qualify for adverse risk assignment, an employer must
have been categorically declined coverage by at least two insurers
that are not affiliated with each other. The employer shall have
the burden of establishing that at least two insurers are unwilling
to provide coverage at any premium level that is reasonably related
to the risk presented by the employer.
(b) To qualify for adverse risk assignment, the employer shall
make an application to the insurance commissioner and shall submit
the evidence described in subsection (a) of this section.
(c) Upon receipt of the adverse risk assignment application,
the insurance commissioner shall determine whether subsection (a)
of this section has been satisfied. If so, the insurance
commissioner shall, through the assigned risk fund, provide
coverage to the applicant at a premium level to be determined by
the insurance commissioner, which premiums shall be consistent with
generally accepted accounting principles, actuarially sound, and
consistent with classification and rate-making methodologies found
in the insurance industry. All rates, surcharges or assessments and assignment of adverse risk employers shall be fair and
equitable and financially sound in accordance with generally
accepted accounting principles.
(d) The coverage provided by this section shall be pursuant to
a pooling arrangement managed by the insurance commissioner. The
insurance commissioner may contract with any third party, including
any private carrier, to administer this pooling arrangement. Costs
necessary to operate this pooling arrangement shall be funded by
premiums paid by covered employers, surcharges, if any, to covered
employers and assessments to private carriers providing workers'
compensation insurance in this state.
(e) The workers' compensation board of managers shall
promulgate a rule for the establishment of the pooling mechanism
and administration thereof; assessment of private carriers; and
rating structure with differing rate tiers for insureds.
(f) As often as necessary, the insurance commissioner may
assess all private carriers providing workers' compensation
insurance in this state such funds as are necessary to cover any
deficiencies in the pooling arrangement. The assessments shall
result in an equitable distribution of costs among private carriers
based upon premiums received by the private carriers. Assessments
made upon private carriers pursuant to this section may be
collected by each carrier from its policy holders in the form of a
surcharge.
§23-2C-11. Transfer of assets from new fund to the mutual
insurance company established as a successor to
the commission; transfer of commission
employees.
(a) If the governor determines that:
(1) The old fund assets are sufficient to satisfy the old fund
liabilities or that a revenue source has been secured to satisfy
the old fund liabilities as they occur from time to time;
(2) The executive director has established a mutual insurance
company pursuant to this code;
(3) The comprehensive financial plan has been accepted by the
insurance commissioner; and
(4) The commissioner of insurance has determined that the
mutual insurance company established by the executive director
qualifies:
(A) For a certificate of authority to transact workers'
compensation insurance in this state; and
(B) For the authority to issue nonassessable policies of
insurance pursuant to this code, the governor shall issue a
proclamation stating that the events described in subdivisions (1)
through (4), inclusive, of this subsection have occurred, along
with the exact amount of funds to be transferred from the workers'
compensation fund to the old fund. The Governor shall establish
the effective date of the termination of the commission in the proclamation.
(b) If the governor issues said proclamation:
The executive director shall cause the transfer to the mutual
insurance company established pursuant this code the premiums and
other money paid or payable, transferred or transferable from the
workers' compensation fund into the new fund, old fund, and any
other applicable fund. The investment management board, state
treasurer and any other agency or board shall fully cooperate in
the transfer of the new fund assets.
(c) Upon the issuance of the proclamation set forth in
subsection (a) of this section, all commission employees assigned
regulatory duties shall transfer, along with the assets necessary
to support the functions being performed, from the commission to
the insurance commissioner: Provided, That the executive director
shall, in consultation with the insurance commissioner, have sole
authority to identify and select the employees that are employed by
the commission to be assigned and transferred to the insurance
commission. For purposes of this section, regulatory duties shall
include, but may not be limited to, self-insurance, rating
services, office of judges and board of review.
(d) The division of personnel shall cooperate fully by
assisting in all personnel activities necessary to expedite all
changes for the commission and the insurance commissioner. Due to
the emergency currently existing at the commission and the urgent need to develop fast, efficient claims processing, management and
administration, the insurance commissioner is hereby granted
authority to reorganize internal functions and operations and to
delegate, assign, transfer, combine, establish, eliminate and
consolidate responsibilities and duties to and among the positions
transferred under the authority of this subsection. These actions
shall not be subject to the grievance process. The provisions of
this subsection are not effective after the thirty-first day of
December, two thousand six.
§23-2C-12. Certain personnel provisions governing employees laid-
off by the mutual during its initial year of
operation.
(a) If a mutual insurance company is established pursuant to
this article, a person who:
(1) Is employed on the first day of January, two thousand
five, by the commission;
(2) Was employed by the commission upon its termination; and
(3) Is laid off by the company on or before the thirtieth day
of June, two thousand eight, is entitled to be placed on an
appropriate reemployment list maintained by the department of
personnel and to be allowed a preference on that list. The
department of personnel shall maintain such an employee on the
reemployment list indefinitely, or until the employee has declined
three offers of employment at a paygrade substantially similar to that of his or her position upon termination of the commission, or
until he or she is reemployed by the executive branch of state
government, whichever occurs earlier.
(b) The executive director may select former bureau of
employment program employees who are, upon the termination of the
commission, employees of the office of information services and
communication and who enter into an employment contract with the
company before the first day of December, two thousand five, to
become employees of the company and said employees shall be
afforded the benefits of this section.
§23-2C-13. Certain retraining benefits to those employees laid-
off by the mutual during its first year of
operation.
If a domestic mutual insurance company is established pursuant
to this article, the chief executive officer of the company shall
enter into an agreement with the department of personnel for the
provision of services and training to an employee of the company
who is laid off during the first year of the company's operation
and requires additional training to obtain other gainful
employment. The department of personnel shall administer the
program. The fees required for those services and training shall
be in an amount established by the department or personnel, must
not exceed two million dollars, in the aggregate, and shall be paid
out of the mutualization transition fund. The executive director may select former bureau of employment program employees who are,
upon the termination of the commission, employees of the office of
information services and communication and who enter into an
employment contract with the company before the first day of
December, two thousand five, to become employees of the company and
said employees shall be afforded the benefits of this section.
§23-2C-14. Certain benefits provided to commission employees.
(a) If a domestic mutual insurance company is created pursuant
to this article and becomes operational as a private carrier, then
the company shall pay the full actuarial cost to purchase years of
credit for not more than five years of service under the state's
public employee retirement system to those individuals who retire
upon termination of the commission or who become employed by the
company upon termination of the commission. The amount purchased
per employee shall be calculated by allowing six months of credit
to be purchased for each year of service with the commission or its
predecessors, including the bureau of employment programs, and
shall be paid out of the mutualization transition fund. If upon
said purchase, an employee does not vest in the public employee
retirement plan, the employee can receive his or her contribution
from the retirement plan and an amount equal to the employer's
contribution to be payable out of the mutualization transition
fund.
(b) The public employees' retirement system shall take such action as is necessary to carry out the provisions of subsection
(a).
(c) All employees employed by the commission on the
thirty-first day of December, two thousand four, who are employed
by the company immediately upon termination of the commission shall
have the following options related to their accrued sick leave:
Freeze said accrued sick leave at the balance that existed as of
thirty-first day of December, two thousand four and use said sick
leave at the time of retirement to purchase insurance through the
public employee insurance agency. Any related charges shall be
paid from the old fund; have their accrued sick leave irrevocably
surrendered in exchange for one hour of pay for each hour of
accrued sick leave surrendered to be payable from the mutualization
transition fund.
(d) The executive director may select former bureau of
employment program employees who are, upon the termination of the
commission, employees of the office of information services and
communication and who enter into an employment contract with the
company before the first day of December, two thousand five, to
become employees of the company and said employees shall be
afforded the benefits of this section.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all
subscriber policies with the commission shall novate to the company and all employers otherwise shall purchase workers' compensation
insurance from the company, unless permitted to self-insure their
obligations. The company shall assume responsibility for all new
fund obligations of the subscriber policies which novate to the
company or which are issued thereafter. Each subscriber whose
policy novates to the company shall also have its advanced deposit
credited to its account with the company. Employers purchasing
workers' compensation insurance from the company shall have the
right to designate a representative or agent to act on its behalf
in any and all matters relevant to coverage and claims as
administered by the company.
(b) Effective the first day of July, two thousand eight, an
employer may elect to: (1) Continue to purchase workers'
compensation insurance from the company; (2) purchase workers'
compensation insurance from another private carrier licensed and
otherwise authorized to transact workers' compensation insurance in
this state; or (3) self-insure its obligations if it satisfies all
requirements of this code to so self-insure and is permitted to do
so: Provided, That all state and local governmental bodies,
including, but not limited to, all counties and municipalities and
their subdivisions and including all boards, colleges, universities
and schools, shall continue to purchase workers' compensation
insurance from the company through the thirtieth day of June, two
thousand twelve. The company and other private carriers shall be permitted to sell workers' compensation insurance through licensed
agents in the state. To the extent that a private carrier markets
workers' compensation insurance through a licensed agent, it shall
be subject to all applicable provisions of chapter thirty-three of
the code. All employers' must immediately notify the insurance
commissioner of its private carrier and any change thereto.
(c) An employer may elect to change its private insurer
carrier on or after the first day of July, two thousand eight, if
the employer has:
(1) Given at least thirty days' notice to the insurance
commissioner of the change of insurer; and
(2) Furnished evidence satisfactory to the insurance
commissioner that the payment of compensation has otherwise been
secured.
(d) Each private carrier and employer shall notify the
insurance commissioner if an employer has changed his or her
insurer or has allowed his or her insurance to lapse within twenty-
four hours or by the end of the next working day, whichever is
later, after the insurer has notice of the change or lapse. Every
employer shall post a notice upon its premises in a conspicuous
place identifying its industrial insurer. The notice must include
the insurer's name, business address and telephone number and the
name, business address and telephone number of its nearest adjuster
in this state. The employer shall at all times maintain the notice provided for the information of his or her employees. Release of
employer policy information and status by the industrial council
and the insurance commissioner shall be governed by section four,
article one, chapter twenty-three of this code. The insurance
commissioner shall collect and maintain information related to
officers, directors and ten percent or more owners of each
carrier's policy holders. The private carrier shall provide said
information to the insurance commissioner.
(e) Any rule promulgated by the workers' compensation board of
managers empowering agencies of this state to revoke or refuse to
grant, issue or renew any contract, license, permit, certificate or
other authority to conduct a trade, profession or business to or
with any employer whose account is in default with the commission
shall be fully enforceable by the insurance commissioner against
the employer in policy default with a private carrier.
(f) Effective the first day of July, two thousand eight, the
company may decline to offer coverage to any applicant. Effective
the first day of July, two thousand eight, the company and private
carriers may cancel a policy or decline to renew a policy upon the
issuance of sixty days written advance notice to the policyholder:
Provided, That cancellation of the policy by the carrier for
failure of consideration to be paid by the policyholder is
effective after fifteen days advance written notice of cancellation
to the policyholder.
§23-2C-16. Administration of old fund.
(a) Notwithstanding any provision of this code to the
contrary, the company shall be the administrator of the workers'
compensation old fund from inception of the company and thereafter
for seven years and shall be charged with all authority and
responsibilities incidental to the administration of the old fund
which are necessary to accomplish the express provisions and the
intent of this chapter. The company shall be paid a monthly
administrative fee of five percent of claims paid each month for
the administration of the old fund through the thirty-first day of
December, two thousand ten, and four percent of claims paid each
month for the administration of the old fund thereafter through the
thirty-first day of December, two thousand twelve. The company's
administrative duties shall include, but not be limited to, receipt
of all claims, processing said claims, providing for the payment of
said claims through the state treasurer's office or other
applicable state agency, and ensuring, through the selection and
assignment of counsel, that claims decisions are properly defended.
The administration of the old fund after this seven-year period
shall be subject to the procedures set forth in article three,
chapter five-a of this code.
(b) The insurance commissioner may contract or employ counsel
to perform legal services related solely to the collection of
moneys due the old fund, including the collection of moneys due the old fund and enforcement of repayment agreements entered into for
the collection of moneys due on or before the thirtieth day of
June, two thousand five, in any administrative proceeding and in
any state or federal court.
(c) The insurance commissioner shall review claims determined
to be payable from the old fund and may contest the determination
pursuant to the provisions of article five of this chapter.
(d) The insurance commissioner may conduct or cause to be
conducted an annual audit to be performed on the old fund.
§23-2C-17. Administration of a competitive system.
(a) Every policy of insurance issued by a private carrier:
(1) Shall be in writing;
(2) Shall contain the insuring agreements and exclusions; and
(3) If it contains a provision inconsistent with this chapter,
it shall be deemed to be reformed to conform with this chapter.
(b) The workers' compensation board of managers shall
promulgate a rule which prescribes the requirements of a basic
policy to be used by private carriers.
(c) A private carrier may enter into a contract to have his or
her plan of insurance administered by a third-party administrator,
including the company. A private carrier shall not enter into a
contract with any person for the administration of any part of the
plan of insurance unless that person maintains an office in this
state and has registered with the insurance commissioner of this state in accordance with article forty-six, chapter thirty-three of
the code.
(d) A self-insured employer or a private carrier may:
(1) Enter into a contract or contracts with one or more
organizations for managed care to provide comprehensive medical and
health care services to employees for injuries and diseases that
are compensable pursuant to chapter twenty-three of this code. The
managed care plan must be approved pursuant to the provisions of
section three, article four of this chapter.
(2) Require employees to obtain medical and health care
services for their industrial injuries from those organizations and
persons with whom the self-insured employer, or private carrier has
contracted or as the self-insured employer or private carrier
otherwise prescribes.
(3) Except for emergency care, require employees to obtain the
approval of the self-insured employer or private carrier before
obtaining medical and health care services for their industrial
injuries from a provider of health care who has not been previously
approved by the self-insured employer or private carrier.
(e) A private carrier or self-insured employer may inquire
about and request medical records of an injured employee that
concern a preexisting medical condition that is reasonably related
to the industrial injury of that injured employee.
(f) An injured employee must sign all medical releases necessary for the insurer of his or her employer to obtain
information and records about a preexisting medical condition that
is reasonably related to the industrial injury of the employee and
that will assist the insurer to determine the nature and amount of
workers' compensation to which the employee is entitled.
§23-2C-18. Ratemaking; insurance commissioner.
(a) For the fiscal year beginning the first day of July, two
thousand six, the company shall charge the actuarially determined
base rates for the fiscal year. The base rates shall be calculated
by the company and submitted for approval by the insurance
commissioner.
(b) For the fiscal year beginning the first day of July, two
thousand seven, the company shall charge the actuarially determined
base rates for said fiscal year. The base rates shall be
calculated by the company and submitted for approval by the
insurance commissioner.
(c) Effective for the fiscal year beginning the first day of
July, two thousand eight, all private carriers' rates shall be
governed by the following:
(1) For the period beginning on first day of July, two
thousand eight, and ending on the thirtieth day of June, two
thousand nine, no more than five percent variance from the base
rates established by the insurance commissioner.
(2) For the period beginning on the first day of July, two thousand nine, and ending on the thirtieth day of June, two
thousand ten, no more than ten percent variance from the base rates
established by the insurance commissioner.
(d) For the period beginning on the first day of July, two
thousand six through the thirtieth day of June, two thousand ten,
the company and, when applicable, a private carrier, may continue
to calculate experience modification factors and other related
rating modification methodologies to adequately insure individual
employer risks.
(e) The variances provided in this section are only applicable
to base rates and shall be exclusive of experience modification and
other related adjustments, including surcharges imposed by this
chapter.
(f) For the period beginning the first day of July, two
thousand ten, and thereafter, the insurance commissioner shall set
base rates for approved classifications and thereafter in
accordance with rules established in accordance with subsection
nine of this section. Said rates shall be released to the public
at least ninety days prior to the first day of July each year.
Within thirty days from this release date, private carriers shall
submit to the insurance commissioner their proposed rates, which
may be higher than the base rates established by the insurance
commissioner. The insurance commissioner retains authority to
disapprove rates in effect if it is determined that the rates are not in compliance with the following:
(1) Rates must not be excessive, inadequate or unfairly
discriminatory, nor may an insurer charge any rate which if
continued will have or tend to have the effect of destroying
competition or creating a monopoly.
(2) The insurance commissioner may disapprove rates if there
is not a reasonable degree of price competition at the consumer
level with respect to the class of business to which they apply.
In determining whether a reasonable degree of price competition
exists, the insurance commissioner shall consider all relevant
tests, including:
(A) The number of insurers actively engaged in the class of
business and their shares of the market;
(B) The existence of differentials in rates in that class of
business;
(C) Whether long-run profitability for private carriers
generally of the class of business is unreasonably high in relation
to its risk;
(D) Consumers' knowledge in regard to the market in question;
and
(E) Whether price competition is a result of the market or is
artificial. If competition does not exist, rates are excessive if
they are likely to produce a long-run profit that is unreasonably
high in relation to the risk of the class of business, or if expenses are unreasonably high in relation to the services
rendered.
(3) Rates are inadequate if they are clearly insufficient,
together with the income from investments attributable to them, to
sustain projected losses and expenses in the class of business to
which they apply.
(4) One rate is unfairly discriminatory in relation to another
in the same class if it clearly fails to reflect equitably the
differences in expected losses and expenses. Rates are not
unfairly discriminatory because different premiums result for
policyholders with similar exposure to loss but different expense
factors, or similar expense factors but different exposure to loss,
so long as the rates reflect the differences with reasonable
accuracy. Rates are not unfairly discriminatory if they are
averaged broadly among persons insured under a group, franchise or
blanket policy.
(g) The rate-making provisions and premium provisions
contained in article two of this chapter shall not be applicable to
the company or other private carriers. The workers' compensation
board of managers, in consultation with the insurance commissioner,
shall issue an exempt legislative rule to govern ratemaking and
premium collection by the company and other private carriers.
§23-2C-19. Special provisions as to private carrier premium
collection.
(a) Each employer who is required to purchase and maintain
workers' compensation insurance or who elects to purchase workers'
compensation insurance shall pay a premium to a private carrier.
Each carrier shall notify its policy holders of the mandated
premium payment methodology and under what circumstances a policy
holder will be found to be in policy default.
(b) An employer who is required to purchase and maintain
workers' compensation insurance but fails to do so or otherwise
enters policy default shall be deprived of the benefits and
protection afforded by this chapter, including section six, article
two of this chapter, and the employer is liable as provided in
section eight of said article. The policy defaulted employer's
liability under these sections is retroactive to day the policy
default occurs. The private carrier shall notify the policy
defaulted employer of the method by which the employer may be
reinstated with the private carrier.
(c) A private carrier is authorized to commence a civil action
against an employer who, after due notice, defaults on any payment.
If judgment is against the employer, the employer shall pay the
costs of the action. Upon prevailing in a civil action, the
private carrier is entitled to recover its attorneys' fees and
costs of action from the employer.
(d) In addition to the provisions of subsection (a) of this
section, any payment, interest and penalty due and unpaid under this chapter is a personal obligation of the employer, its officers
and its directors, immediately due and owing to the private carrier
and shall, in addition, be a lien enforceable against all the
property of the employer: Provided, That the lien shall not be
enforceable as against a purchaser (including a lien creditor) of
real estate or personal property for a valuable consideration
without notice, unless docketed as provided in section one, article
ten-c, chapter thirty-eight of this code: Provided, however, That
the lien may be enforced as other judgment liens are enforced
through the provisions of said chapter and the same is considered
deemed by the circuit court to be a judgment lien for this purpose.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by its private carrier that
all payments, interest and penalties thereon against the
corporation which is an employer under this chapter have been paid
or that provision satisfactory to the private carrier has been made
for payment.
(f) In addition to any other liabilities provided in this
section, the insurance commissioner may impose an administrative
fine of not more than ten thousand dollars against an employer if
the employer fails to provide mandatory coverage required by the this chapter. Further, prior to providing an applicant employer
with coverage mandated in this chapter, all private carriers shall
exercise reasonable due diligence to ensure that an employer
applicant has not been in policy default with another carrier or in
default with the commission. If it is discovered that the employer
applicant remains in policy default with another carrier or the
commission, the company or new carrier shall not provide the
coverage mandated by this chapter until such time as the
preexisting policy default is cured. Any provider violating this
provision may be fined not more than ten thousand dollars by the
insurance commissioner.
(g) The company and the insurance commissioner shall be
provided extraordinary powers to collect any premium amounts
payable to the workers' compensation fund or the new fund and due
from first day of July, two thousand five, through the thirtieth
day of June, two thousand eight. Those powers shall include: (1)
Withholding of coverage effective the first day of January, two
thousand six. Employers without coverage shall immediately be
deprived of the benefits and protection afforded by this chapter,
including section six, article two of this chapter and the employer
is liable as provided in section eight of said article; (2) the
right to maintain a civil action against all officers and directors
of the employer individually for collection of the premium owed;
and (3) the right to immediately report the employers' to the state tax department and other state agencies to secure suspension of any
and all licenses, certificates, permits, registrations and other
similar approval documents necessary for the employer to conduct
business in this state.
§23-2C-20. Claims administration issues.
(a) A self-insured employer shall continue to comply with
rules promulgated by the board of managers governing the self-
administration of its claims and the successor to the commission
shall also comply with the rules promulgated by the board of
managers governing the self-administration of claims.
(b) The successor to the commission, any other private carrier
and any employer that self-insures its risk and self-administers
its claims shall exercise all authority and responsibility granted
to the commission in this chapter and provide notices of action
taken to effect the purposes of this chapter to provide benefits to
persons who have suffered injuries or diseases covered by this
chapter. The successor to the commission, private carriers and
self-insured employers shall at all times be bound and shall comply
fully with all of the provisions of this chapter. Furthermore, all
of the provisions contained in article four of this chapter
pertaining to disability and death benefits are binding on and
shall be strictly adhered to by the successor to the commission,
private carriers, and the self-insured employer in their
administration of claims presented by employees of the self-insured employer.
(c) Upon termination of the commission, the occupational
pneumoconiosis board shall be transferred to the insurance
commissioner and shall be administered by the insurance
commissioner. The company and other private carriers shall have
all authority and responsibility granted to the self-insured
employers in the administration and processing of occupational
pneumoconiosis claims.
(d) Upon termination of the commission, all claims allocation
responsibilities shall transfer from the commission to the
insurance commissioner.
(e) Upon termination of the commission, the administrator of
the old fund shall have all administrative and adjudicatory
authority vested in the commission in administering old law
liabilities and otherwise processing and deciding old law claims.
§23-2C-21. Limitation of liability of insurer or third-party
administrator; administrative fines are
exclusive remedies.
(a) No cause of action may be brought or maintained by an
employee against a private carrier or a third-party administrator,
or any employee or agent of a private carrier or third-party
administrator, who violates any provision of this chapter or
chapter thirty-three of this code.
(b) Any administrative fines or remedies provided in this chapter or rules promulgated by the workers' compensation
commission or the insurance commissioner are the exclusive civil
remedies for any violation of this chapter committed by a private
carrier or a third-party administrator or any agent or employee of
a private carrier or a third-party administrator.
(c) Upon a determination by the Office of Judges' that a
denial of compensability, a denial of an initial award of temporary
total disability or a denial of an authorization for medical
benefits was unreasonable, reasonable attorney's fees and the costs
actually incurred in the process of obtaining a reversal of the
denial shall be awarded to the claimant and paid by the company,
private carrier or self-insured employer which issued the
unreasonable denial. A denial is unreasonable if, after submission
by or on behalf of the claimant, of evidence of the compensability
of the claim, the entitlement to initial temporary total disability
benefits or medical benefits, the company, private carrier or self-
insured employer is unable to demonstrate that it had evidence or
a legal basis supported by legal authority at the time of the
denial which is relevant and probative and supports the denial of
the award or authorization. Payment of attorney's fees and costs
awarded under this subsection will be made to the claimant at the
conclusion of litigation, including all appeals, of the claimant's
protest of the denial.
§23-2C-22. Rules.
Except as otherwise provided in this chapter, all rules
applicable to the former workers' compensation commission are
hereby adopted and made effective as to the operation of the
workers' compensation insurance market to the extent that they are
not in conflict with the current law. Authority to enforce the
existing rules and the regulatory functions of the commission as
set forth in chapter twenty-three of the code shall transfer from
the commission to the insurance commissioner effective upon
termination of the commission.
§23-2C-23. Transfer of assets and contracts.
With the establishment of the company, all commission assets,
excluding those necessary to perform the regulatory function of the
insurance commissioner under this chapter are hereby transferred
and assigned to the company.
ARTICLE 2D. WORKERS' COMPENSATION DEBT REDUCTION BONDS.
§23-2D-1. Short title.
This article shall be known and may be cited as the "Workers'
Compensation Debt Reduction Bond Act".
§23-2D-2. Legislative findings; legislative intent.
The Legislature finds and declares that:
(a) The supreme court of appeals has ruled that article X,
section four of the constitution does not preclude issuance of
revenue bonds which are to be redeemed from a special fund.
(b) The supreme court of appeals has also ruled that the Legislature may not designate funds that will be used to liquidate
a bond issue out of a current tax source that flows into the
general revenue fund.
(c) This act imposes several new taxes and provides for those
taxes to be deposited in the workers' compensation debt reduction
fund created in section five of this article, which is a special
account in the treasury and is not part of the state general
revenue fund.
(d) This act also provides for certain special revenue dollars
that are not part of the state general revenue fund to also be
deposited in the workers' compensation debt reduction fund.
(e) This article provides for the reduction of the old fund
liability of the workers' compensation commission through the
issuance of revenue bonds for the purpose of:
(1) Providing for the safety and soundness of the workers'
compensation system; and
(2) Redeeming the unfunded liability of the workers'
compensation fund in order to realize savings over the remaining
term of the amortization schedules of the unfunded actuarial
accrued liabilities.
(f) The general credit of the state will not be pledged for
repayment of bonds issued under this article and repayment will
come from moneys that are not part of the state's general revenue
fund.
§23-2D-3. Definitions.
For purposes of this article:
(a) "Old fund" means the fund created in sections two and six,
article two-c of this chapter;
(b) "Workers' compensation commission" or "commission" means
the West Virginia workers' compensation commission established
under article one, chapter twenty-three of this code, or any
successor to all or any substantial part of its powers and duties;
and
(c) "Workers' compensation debt reduction revenue bond" means
any bond or bonds issued by the economic development authority
pursuant to this article.
§23-2D-4. Workers' compensation debt reduction revenue bonds;
amount; when may issue.
(a) Revenue bonds of the state of West Virginia are hereby
authorized to be issued and sold by the West Virginia economic
development authority created and provided in article fifteen,
chapter thirty-one of this code, solely for the paying down and
elimination of the current unfunded liability of the workers'
compensation fund, as provided by the constitution and the
provisions of this article. The principal of, and the interest and
redemption premium, if any, on, the bonds shall be payable solely
from the special fund provided in section six of this article for
repayment.
(b) The bonds shall bear such date or dates and mature at such
time or times, be in such amounts, be in such denominations, be in
such registered form, carry such registration privileges, be due
and payable at such time or times, not exceeding thirty years from
their respective dates, and place and in such amounts, and subject
to such terms of redemption as the resolution may provide:
Provided, That in no event may the amount of bonds issued pursuant
to this article exceed one billion five hundred million dollars.
(c) Revenue bonds issued under this article shall state on
their face that the bonds do not constitute a debt of the state of
West Virginia; that payment of the bonds, interest and charges
thereon cannot become an obligation of the state of West Virginia;
and that the bondholders' remedies are limited in all respects to
the "special revenue fund" established in this article for the
liquidation of the bonds.
(d) Net proceeds from sale of these bonds shall be deposited
in the old fund.
§23-2D-5. Special account created; use of moneys in the fund.
(a) There is hereby created in the state treasury a special
interest bearing account known as the "workers' compensation debt
reduction fund." Funds in this account may be invested in the
manner permitted by the provisions of article six, chapter twelve
of this code, with interest income a proper credit to this fund.
(b) Moneys to be deposited in this account include:
(1) The amounts provided in section two, article eleven-a,
chapter four of this code;
(2) The net amount of all moneys received by the tax
commissioner from collection of the new taxes imposed by section
four, article thirteen-v, chapter eleven of this code, including
any interest, additions to tax, or penalties collected with respect
to these taxes pursuant to article ten, chapter eleven of this
code;
(3) The net amount of moneys received by the insurance
commissioner from collection of the new premiums tax imposed by
section three, article two-c of this chapter; and
(4) Moneys from racetrack video lottery net terminal income,
as provided in section ten and ten-b, article twenty-two-a, chapter
twenty-nine of this code.
(c) Moneys in this account are to be used and expended to
reduce the workers' compensation debt or to pay debt service on
bonds sold pursuant to this article for the purpose of reducing or
paying the workers' compensation debt, or for any combination of
both of these purposes.
(d) From the moneys deposited in this fund, there shall first
be transferred each month to the debt service fund created in
section six of this article sufficient amounts to provide for the
timely payment of the principal, interest and redemption premium,
if any, on any revenue bonds or refunding bonds issued pursuant to this article, as determined in the trust agreement or agreements.
Remaining moneys shall be transferred monthly to the old fund.
§23-2D-5a. Excess regular coal severance taxes.
When in any fiscal year ending after the thirtieth day of
June, two thousand six, the state collects net severance tax on the
privilege of severing, extracting, reducing to possession or
producing coal for sale profit or commercial use imposed by section
three, article thirteen-a, chapter eleven of the code, that is in
excess of the net amount of the tax collected in fiscal year two
thousand six, fifty percent of the difference shall be deposited in
the old fund created in article two-c of this chapter. For
purposes of this subsection, the amount of the additional severance
tax on coal imposed pursuant to section six, article thirteen-a,
chapter eleven of the code, collected each fiscal year for the
benefit of counties and municipalities as provided in said section
six, shall be excluded when determining the amount of the tax
imposed by section three, article thirteen-a, chapter eleven of the
code, that is collected each fiscal year from the privilege of
severing, extracting, reducing to possession or producing coal for
sale, profit or commercial use. The provisions of this subsection
shall not be effective after the thirtieth day of June, two
thousand nine.
§23-2D-6. Creation of debt service fund; disbursements to pay
debt service on workers' compensation debt reduction revenue bonds.
(a) There is hereby created a special account in the state
treasury, which shall be designated and known as the "West Virginia
Workers' Compensation Debt Reduction Revenue Bond Debt Service
Fund", into which shall monthly be deposited amounts from the
workers' compensation debt reduction fund necessary to pay debt
service on the bonds and to provide for any coverage requirements.
(b) All amounts deposited in the fund shall be pledged to the
repayment of the principal, interest and redemption premium, if
any, on any revenue bonds or refunding revenue bonds authorized by
this article, including any and all commercially customary and
reasonable costs and expenses which may be incurred in connection
with the issuance, refunding, redemption or defeasance thereof.
(c) The treasurer shall transfer monies in this fund as set
forth in the trust agreement for the bonds issued under this
article.
(d) A lien on the proceeds of the West Virginia workers'
compensation debt reduction revenue bond debt service fund up to a
maximum amount equal to the projected annual principal, interest
and coverage ratio requirements may be granted by the economic
development authority in favor of the bonds it issues secured by
this fund.
§23-2D-7. Covenants of state.
The state of West Virginia covenants and agrees with the holders of the bonds issued pursuant hereto as follows: (1) That
such bonds shall never constitute a direct and general obligation
of the state of West Virginia; (2) that the full faith and credit
of the state is not hereby pledged to secure the payment of the
principal and interest of such bonds; (3) that new annual state
taxes that are not and never were part of the state general revenue
fund shall be collected in an amount sufficient to pay as it may
accrue the interest on such bonds and the principal thereof; and
(4) that the moneys transferred to the workers' compensation debt
reduction revenue bond debt service fund as provided in this
article are irrevocably set aside and dedicated to the payment of
the interest on and principal of any bond becoming due and payable
in such year.
§23-2D-8. Workers' compensation debt reduction revenue bonds
lawful investments.
All workers' compensation debt reduction revenue bonds issued
pursuant to this article shall be lawful investments for banking
institutions, societies for savings, building and loan
associations, savings and loan associations, deposit guarantee
associations, trust companies, insurance companies, including
domestic for life and domestic not for life insurance companies.
§23-2D-9. Refunding bonds.
Any workers' compensation debt reduction revenue bonds which
are outstanding may at any time be refunded by the issuance of refunding bonds in an amount deemed necessary to refund the
principal of the bonds to be refunded, together with any unpaid
interest thereon; to accomplish the purpose of this article; and to
pay any premiums and commissions necessary to be paid in connection
therewith. Any refunding may be effected whether the workers'
compensation debt reduction revenue bonds to be refunded shall have
then matured or shall thereafter mature. Any refunding bonds
issued pursuant to this article shall be payable from the workers'
compensation debt reduction revenue bond debt service fund shall be
secured in accordance with the provisions of this article.
§23-2D-10. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses, incurred in
the issuance of any revenue bonds pursuant to this article shall be
paid out of bond proceeds.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-1. Compensation fund; catastrophe and catastrophe payment
defined; compensation by employers.
(a) The commission shall establish a workers' compensation
fund from the premiums and other funds paid thereto by employers,
as provided in this section, for the benefit of employees of
employers who have paid the premiums applicable to the employers
and have otherwise complied fully with the provisions of section
five, article two of this chapter, and for the benefit, to the
extent elsewhere in this chapter set out, of employees of employers who have elected, under section nine, article two of this chapter,
to make payments into the workers' compensation fund as provided
for in this section, and for the benefit of the dependents of all
the employees, and for the payment of the administration expenses
of this chapter. The workers' compensation fund created pursuant
to this article shall terminate upon termination of the commission
and its proceeds shall be distributed as set forth in article two-c
of this chapter.
(b) A portion of all premiums that are paid into the workers'
compensation fund by subscribers not electing to carry their own
risk under section nine, article two of this chapter that is set
aside to create and maintain a reserve of the fund to cover the
catastrophe hazard and all losses not otherwise specifically
provided for in this chapter. The percentage to be set aside is
determined pursuant to the rules adopted to implement section four,
article two of this chapter and shall be in an amount sufficient to
maintain a solvent fund. All interest earned on investments by the
workers' compensation fund, which is attributable to the reserve,
shall be credited to the fund. Effective upon termination of the
commission, all funds in the catastrophe fund shall be transferred
into the old fund, all claims payable as a consequence of a
catastrophe hazard shall be payable from the old fund and any
premiums due under this article shall be payable to the old fund.
Employers shall purchase catastrophe insurance from the company or another private carrier and shall also reinsure their catastrophic
risk.
(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; loss of both hands or the use thereof; 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
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 previously elected, or may later
elect, to pay into the catastrophe reserve of the fund under the
provisions of said section, the catastrophe payment arising from
the catastrophe shall not be charged against, or paid by, the
employer but shall be paid from the catastrophe reserve of the
fund.
(d) For all awards made on or after the effective date of the
amendments to this section enacted during the year two thousand
three, the following provisions relating to second injury are not
applicable. For awards made before the date specified in this
subsection, if an employee who has a definitely ascertainable physical impairment, caused by a previous occupational injury,
occupational pneumoconiosis or occupational disease, irrespective
of its compensability, becomes permanently and totally disabled
through the combined effect of the previous injury and a second
injury received in the course of and as a result of his or her
employment, the employer shall be chargeable only for the
compensation payable for the second injury: Provided, That in
addition to the compensation, and after the completion of the
payments therefor, the employee shall be paid the remainder of the
compensation that would be due for permanent total disability out
of the workers' compensation fund. 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 is a second injury award under this
subsection or a permanent total disability award to be charged to
the employer's account or to be paid directly by the employer if
the employer has elected to be self-insured employer under the
provisions of section nine, article two of this chapter.
(e) Employers electing, as provided in this chapter, to
compensate individually and directly their injured employees and
their fatally injured employees' dependents shall do so in the
manner prescribed by the commission and shall make all reports and execute all blanks, forms and papers as directed by the commission,
and as provided in this chapter.
§23-3-4. Deposits and disbursements considered abandoned
property; disposition of property.
(a) All disbursements from the workers' compensation fund and
the other funds created pursuant to this chapter including the
advance deposits by employers where there has been no activity for
a period of five years, are presumed abandoned and subject to the
custody of the state as unclaimed property under the provisions of
article eight, chapter thirty-six of this code. The funds shall be
kept in a separate account by the state treasurer, apart from other
unclaimed property funds. Ninety days after the state treasurer
has advertised the accounts and paid any claims, he or she shall
remit the balance of those funds held in the account to the credit
of the workers' compensation fund or to other affected funds. Such
property shall become the property of, and owned exclusively by,
the workers' compensation fund. Effective upon termination of the
commission, said funds otherwise meeting the requirements of this
section shall be deposited into the old fund as set forth in
article two-c of this chapter.
(b) Notwithstanding any provision of law to the contrary, all
interest and other earnings accruing to the investments and
deposits of the workers' compensation fund and of the other funds
created pursuant to this chapter are credited only to the account of the workers' compensation fund or to such other affected fund.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1b. Report of injuries by employers.
It is the duty of every employer to report to the commission,
the successor to the commission or another private carrier,
whichever is applicable, every injury sustained by any person in
his or her employ. The report shall be on forms prescribed by the
commission or the insurance commissioner, whichever is applicable,
and shall be made within five days of the employer's receipt of the
employee's notice of injury, required by section one-a of this
article, or within five days after the employer has been notified
by the commission or the insurance commissioner, whichever is
applicable, that a claim for benefits has been filed on account of
such injury, whichever is sooner, and, notwithstanding any other
provision of this chapter to the contrary, the five-day period may
not be extended by the commission the successor to the commission,
or another private carrier, whichever is applicable, but the
employer has the right to file a supplemental report at a later
date. The employer's report of injury shall include a statement as
to whether or not, on the basis of the information available, the
employer disputes the compensability of the injury or objects to
the payment of temporary total disability benefits in connection
with the injury. The statements by the employer shall not
prejudice the employer's right thereafter to contest the compensability of the injury, or to object to any subsequent
finding or award, in accordance with article five of this chapter;
but an employer's failure to make timely report of an injury as
required in this section, or statements in the report to the effect
that the employer does not dispute the compensability of the injury
or object to the payment of temporary total disability benefits for
the injury, shall be considered to be a waiver of the employer's
right to object to any interim payment of temporary total
disability benefits paid by the commission, the successor to the
commission, or another private carrier with respect to any period
from the date of injury to the date of receipt of any objection
made to the interim payments by the employer.
§23-4-1c. Payment of temporary total disability benefits directly
to claimant; payment of medical benefits;
payments of benefits during protest; right of
commission, successor to the commission, other
private carriers and self-insured employers to
collect payments improperly made.
(a) In any claim for benefits under this chapter, the workers'
compensation commission, the successor to the commission, other
private carriers or self-insured employer, whichever is applicable,
shall determine whether the claimant has sustained a compensable
injury within the meaning of section one of this article and enter
an order giving all parties immediate notice of the decision.
(1) The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may
enter an order conditionally approving the claimant's application
if it finds that obtaining additional medical evidence or
evaluations or other evidence related to the issue of
compensability would aid the commission in making a correct final
decision. Benefits shall be paid during the period of conditional
approval; however, if the final decision is one that rejects the
claim, the payments shall be considered an overpayment. The
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, may only recover
the amount of the overpayment as provided for in subsection (h) of
this section.
(2) In making a determination regarding the compensability of
a newly filed claim or upon a filing for the reopening of a prior
claim pursuant to the provisions of section sixteen of this article
based upon an allegation of recurrence, reinjury, aggravation or
progression of the previous compensable injury or in the case of a
filing of a request for any other benefits under the provisions of
this chapter, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall consider the date of the filing of the claim for benefits for
a determination of the following:
(A) Whether the claimant had a scheduled shutdown beginning within one week of the date of the filing;
(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;
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing.
In the event of an affirmative finding upon any of these four
factors, the finding shall be given probative weight in the overall
determination of the compensability of the claim or of the merits
of the reopening request.
(3) Any party may object to the order of the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, and obtain an evidentiary
hearing as provided in section one, article five of this chapter:
Provided, That if the successor to the commissioner, other private
carrier or self-insured, whichever is applicable, fails to timely
issue a ruling upon any application or motion as provided by law,
or if the claimant files a timely protest to the ruling of a self-
insured employer, private carrier, or other issuing entity, denying
the compensability of the claim, denying initial temporary total
disability benefits or denying medical authorization, the office of judges shall provide a hearing on the protest on an expedited basis
as determined by rule of the office of judges.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided in
section five of this article, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, 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 the injury, without
waiting for the expiration of the thirty-day period during which
objections may be filed to the findings as provided in section one,
article five of this chapter. The commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall enter an order commencing the
payment of temporary total disability or medical benefits within
fifteen working 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 commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall give to the parties immediate notice of any order granting temporary total disability
or medical benefits. When an order granting temporary total
disability benefits is made, the claimant's return-to-work
potential shall be assessed. The commission may schedule medical
and vocational evaluation of the claimant and assign appropriate
personnel to expedite the claimant's return to work as soon as
reasonably possible.
(c) The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may
enter orders granting temporary total disability benefits upon
receipt of medical evidence justifying the payment of the benefits.
The commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, may not enter an
order granting prospective temporary total disability benefits for
a period of more than ninety days: Provided, That when the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, determines that the
claimant remains disabled beyond the period specified in the prior
order granting temporary total disability benefits, the commission
shall enter an order continuing the payment of temporary total
disability benefits for an additional period not to exceed ninety
days and shall give immediate notice to all parties of the
decision.
(d) Upon receipt of the first report of injury in claim, the commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, 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 this information within fifteen
days from the date the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, 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 commission obtains from reports made pursuant
to subsection (b), section two, article two of this chapter. If no
wages have been reported, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall make the payments at the rate the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, finds would be
justified by the usual rate of pay for the occupation of the
injured employee. The rate of benefits shall be adjusted both
retroactively and prospectively upon receipt of proper wage
information. The commission shall have access to all wage
information in the possession of any state agency.
(e) Subject to the limitations set forth in section sixteen of
this article, upon a finding of the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, that a claimant who has sustained a
previous compensable injury which has been closed by order, 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, payment of temporary total
disability benefits to the claimant in the amount provided for in
sections six and fourteen of this article shall immediately
commence, and the expenses provided for in subsection (a), section
three of this article, relating to the disability, without waiting
for the expiration of the thirty-day period during which objections
may be filed. Immediate notice to the parties of the decision
shall be given.
(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 commission shall mail
all workers' compensation checks paying temporary total disability
benefits directly to the claimant and not to the employer for
delivery to the claimant.
(g) Where the employer has elected to carry its own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the self-insured employer shall immediately pay the
amounts due the claimant for temporary total disability benefits.
A copy of the notice shall be sent to the claimant.
(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. 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 that case determines that the claimant was not entitled
to the benefits or expenses, the amount of benefits or expenses is
considered overpaid. For all awards made or nonawarded partial
benefits paid the commission, the successor to the commission,
other private carriers, or self-insured employer may recover the
amount of overpaid benefits or expenses by withholding, in whole or
in part, future disability benefits payable to the individual in
the same or other claims and credit the amount against the
overpayment until it is repaid in full.
(i) In the event that the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, finds that, based upon the employer's
report of injury, the claim is not compensable, the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall provide a copy of the
employer's report to the claimant in addition to the order denying
the claim.
(j) If a claimant is receiving benefits paid through a wage
replacement plan, salary continuation plan or other benefit plan
provided by the employer to which the employee has not contributed,
and that plan does not provide an offset for temporary total
disability benefits to which the claimant is also entitled under
this chapter as a result of the same injury or disease, the
employer shall notify the commission of the duplication of the
benefits paid to the claimant. Upon receipt of the notice, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall reduce the
temporary total disability benefits provided under this chapter by
an amount sufficient to ensure that the claimant does not receive
monthly benefits in excess of the amount provided by the employer's
plan or the temporary total disability benefit, whichever is
greater: Provided, That this subsection does not apply to benefits
being paid under the terms and conditions of a collective
bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
makes an award for permanent partial or permanent total disability,
the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, shall start
payment of benefits by mailing or delivering the amount due
directly to the employee within fifteen working days from the date
of the award: Provided, That the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, may withhold payment of the portion of the
award that is the subject of subsection (b) of this section until
seventy-seven days have expired without an objection being filed.
(b) When the commission, successor to the commission, other
private carrier, self-insured employer, the office of judges or the
workers' compensation board of review, whichever is applicable,
enters an order or provides notice granting the claimant a
permanent total disability award and an objection or petition for
appeal is filed by the employer, the commission the successor to
the commission or other private carrier, payment of monthly
permanent total disability benefits shall begin. However, any
payment for a back period of benefits from the onset date of total
permanent disability to the date of the award shall be limited to
a period of twelve months of benefits. If, after all litigation is
completed and the time for the filing of any further objections or appeals to the award has expired and the award of permanent total
disability benefits is upheld, the claimant shall receive the
remainder of benefits due to him or her based upon the onset date
of permanent total disability that was finally determined.
(c) If the claimant is owed any additional payment of back
permanent total disability benefits, the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, 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, benefits shall
continue to be paid to the claimant benefits during the period of
the disability unless it is subsequently found that the claimant
was not entitled to receive the benefits, or any part thereof, in
which event the commission shall, where the employer is a subscriber to the fund, credit the employer's account with the
amount of the overpayment. 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, the amount of
benefit paid shall be considered overpaid. For all awards made or
nonawarded partial benefits paid the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, may only recover that amount by
withholding, in whole or in part, as determined by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, future disability benefits
payable to the individual in the same or other claims and credit
the amount against the overpayment until it is repaid in full.
(e) An award for permanent partial disability shall be made as
expeditiously as possible and in accordance with the time frame
requirements promulgated by the board of managers.
(f) If a claimant is receiving benefits paid through a
retirement plan, wage replacement plan, salary continuation plan or
other benefit plan provided by the employer to which the employee
has not contributed, and that plan does not provide an offset for
permanent total disability benefits to which the claimant is also
entitled under this chapter as a result of the same injury or
disease, the employer shall notify the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, of the duplication of the benefits paid to
the claimant. Upon receipt of the notice, the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall reduce the permanent total
disability benefits provided under this chapter by an amount
sufficient to ensure that the claimant does not receive monthly
benefits in excess of the amount provided by the employer's plan or
the permanent total disability benefit, whichever is greater:
Provided, That this subsection does not apply to benefits being
paid under the terms and conditions of a collective bargaining
agreement.
§23-4-1e. Temporary total disability benefits not to be paid for
periods of correctional center or jail
confinement; denial of workers' compensation
benefits for injuries or disease incurred while
confined.
(a) Notwithstanding any provision of this code to the
contrary, no person shall be jurisdictionally entitled to temporary
total disability benefits for that period of time in excess of
three days during which that person is confined in a state
correctional facility or jail: Provided, That confinement shall not
affect the claimant's eligibility for payment of expenses:
Provided, however, That this subsection is applicable only to
injuries and diseases incurred prior to any period of confinement. Upon release from confinement, the payment of benefits for the
remaining period of temporary total disability shall be made if
justified by the evidence and authorized by order of the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable.
(b) Notwithstanding any provision of this code to the
contrary, no person confined in a state correctional facility or
jail who suffers injury or a disease in the course of and resulting
from his or her work during the period of confinement which work is
imposed by the administration of the state correctional facility or
jail and is not suffered during the person's usual employment with
his or her usual employer when not confined shall receive benefits
under the provisions of this chapter for the injury or disease.
§23-4-3. Schedule of maximum disbursements for medical, surgical,
dental and hospital treatment; legislative
approval; guidelines; preferred provider
agreements; charges in excess of scheduled
amounts not to be made; required disclosure of
financial interest in sale or rental of
medically related mechanical appliances or
devices; promulgation of rules to enforce
requirement; consequences of failure to
disclose; contract by employer with hospital, physician, etc., prohibited; criminal penalties
for violation; payments to certain providers
prohibited; medical cost and care program;
payments; interlocutory orders.
(a) The workers' compensation commission, and effective upon
termination of the commission, the insurance commissioner, shall
establish and alter from time to time, as it determines
appropriate, a schedule of the maximum reasonable amounts to be
paid to health care providers, providers of rehabilitation
services, providers of durable medical and other goods and
providers of other supplies and medically related items or other
persons, firms or corporations for the rendering of treatment or
services to injured employees under this chapter. The commission
and effective upon termination of the commission, the insurance
commissioner, also, on the first day of each regular session and
also from time to time, as it may consider appropriate, shall
submit the schedule, with any changes thereto, to the Legislature.
The commission, and effective upon termination of the
commission, all private carriers and self-insured employers or
their agents, shall disburse and pay for personal injuries to the
employees who are entitled to the benefits under this chapter as
follows:
(1) Sums for health care services, rehabilitation services,
durable medical and other goods and other supplies and medically related items as may be reasonably required. The commission, and
effective upon termination of the commission, all private carriers
and self-insured employers or their agents, shall determine that
which is reasonably required within the meaning of this section in
accordance with the guidelines developed by the health care
advisory panel pursuant to section three-b of this article:
Provided, That nothing in this section shall prevent the
implementation of guidelines applicable to a particular type of
treatment or service or to a particular type of injury before
guidelines have been developed for other types of treatment or
services or injuries: Provided, however, That any guidelines for
utilization review which are developed in addition to the
guidelines provided for in section three-b of this article may be
used by the commission, and effective upon termination of the
commission, all private carriers and self-insured employers or
their agents, until superseded by guidelines developed by the
health care advisory panel pursuant to said section. Each health
care provider who seeks to provide services or treatment which are
not within any guideline shall submit to the commission, and
effective upon termination of the commission, all private carriers,
self-insured employers and other payors, specific justification for
the need for the additional services in the particular case and the
commission shall have the justification reviewed by a health care
professional before authorizing the additional services. The commission, and effective upon termination of the commission, all
private carriers, self-insured employers and other payors, may
enter into preferred provider and managed care agreements which
provides for fees and other payments which deviate from the
schedule set forth in this subsection.
(2) Payment for health care services, rehabilitation services,
durable medical and other goods and other supplies and medically
related items authorized under this subsection may be made to the
injured employee or to the person, firm or corporation who or which
has rendered the treatment or furnished health care services,
rehabilitation services, durable medical or other goods or other
supplies and items, or who has advanced payment for them, as the
commission, and effective upon termination of the commission, all
private carriers, self-insured employers and other payors,
considers proper, but no payments or disbursements shall be made or
awarded by the commission unless duly verified statements on forms
prescribed by the commission, and effective upon termination of the
commission, all private carriers, self-insured employers and other
payors, have been filed within six months after the rendering of
the treatment or the delivery of such goods, supplies or items or
within ninety days of a subsequent compensability ruling if a claim
is initially rejected: Provided, That no payment under this section
shall be made unless a verified statement shows no charge for or
with respect to the treatment or for or with respect to any of the items specified in this subdivision has been or will be made
against the injured employee or any other person, firm or
corporation. When an employee covered under the provisions of this
chapter is injured, in the course of and as a result of his or her
employment and is accepted for health care services, rehabilitation
services, or the provision of durable medical or other goods or
other supplies or medically related items, the person, firm or
corporation rendering the treatment may not make any charge or
charges for the treatment or with respect to the treatment against
the injured employee or any other person, firm or corporation which
would result in a total charge for the treatment rendered in excess
of the maximum amount set forth therefor in the commission schedule
set forth in this subsection.
(3) Any pharmacist filling a prescription for medication for
a workers' compensation claimant shall dispense a generic brand of
the prescribed medication if a generic brand exists. If a generic
brand does not exist, the pharmacist may dispense the name brand.
In the event that a claimant wishes to receive the name brand
medication in lieu of the generic brand, the claimant may receive
the name brand medication but, in that event, the claimant is
personally liable for the difference in costs between the generic
brand medication and the brand name medication.
(4) In the event that a claimant elects to receive health care
services from a health care provider from outside of the state of West Virginia and if that health care provider refuses to abide by
and accept as full payment the reimbursement made by the workers'
compensation commission, and effective upon termination of the
commission, all private carriers and self-insured employers or
their agents, pursuant to the schedule of maximum reasonable
amounts of fees authorized by this subsection, with the exceptions
noted below, the claimant is personally liable for the difference
between the scheduled fee and the amount demanded by the out-of-
state health care provider.
(A) In the event of an emergency where there is an urgent need
for immediate medical attention in order to prevent the death of a
claimant or to prevent serious and permanent harm to the claimant,
if the claimant receives the emergency care from an out-of-state
health care provider who refuses to accept as full payment the
scheduled amount, the claimant is not personally liable for the
difference between the amount scheduled and the amount demanded by
the health care provider. Upon the claimant's attaining a stable
medical condition and being able to be transferred to either a West
Virginia health care provider or an out-of-state health care
provider who has agreed to accept the scheduled amount of fees as
payment in full, if the claimant refuses to seek the specified
alternative health care providers, he or she is personally liable
for the difference in costs between the scheduled amount and the
amount demanded by the health care provider for services provided after attaining stability and being able to be transferred.
(B) In the event that there is no health care provider
reasonably near to the claimant's home who is qualified to provide
the claimant's needed medical services who is either located in the
state of West Virginia or who has agreed to accept as payment in
full the scheduled amounts of fees, the commission, upon
application by the claimant, may authorize the claimant to receive
medical services from another health care provider. The claimant
is not personally liable for the difference in costs between the
scheduled amount and the amount demanded by the health care
provider.
(b) (1) No employer shall enter into any contracts with any
hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or surgical
attention to any employee for injury compensable within the purview
of this chapter and no employer shall permit or require any
employee to contribute, directly or indirectly, to any fund for the
payment of such medical, surgical, dental or hospital service
within such hospital for the compensable injury. Any employer
violating this subsection is liable in damages to the employer's
employees as provided in section eight, article two of this
chapter, and any employer or hospital or agent or employee thereof
violating the provisions of this section is guilty of a misdemeanor
and, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than one thousand dollars or by
imprisonment not exceeding one year, or both.
(2) The provisions of this subsection shall not prohibit an
employer, the successor to the commission, other private carrier or
self-insured employer from participating in a managed health care
plan, including, but not limited to, a preferred provider
organization or program or a health maintenance organization or
managed care organization or other medical cost containment
relationship with the providers of medical, hospital or other
health care. An employer, successor to the commission, other
private carrier or self-insured employer that provides a managed
health care plan approved by the commission or, upon termination of
the commission, the insurance commissioner, for its employees or
the employees of its insured may require an injured employee to use
health care providers authorized by the managed health care plan
for care and treatment of his or her compensable injuries. If the
employer does not provide a managed health care plan or program,
the claimant may select his or her initial health care provider for
treatment of a compensable injury or disease, except as provided
under subdivision (3) of this subsection. If a claimant wishes to
change his or her health care provider and if his or her employer
has established and maintains a managed health care plan, the
claimant shall select a new health care provider through the
managed health care plan. A claimant who has used the providers under the employer's managed health care plan may select a health
care provider outside the employer's plan for treatment of the
compensable injury or disease if the employee receives written
approval from the commission to do so and the approval is given
pursuant to criteria established by rule of the commission.
(3) If the commission enters into an agreement which has been
approved by the board of managers with a managed health care plan,
including, but not limited to, a preferred provider organization or
program, a health maintenance organization or managed care
organization or other health care delivery organization or
organizations or other medical cost containment relationship with
the providers of medical, hospital or other health care, then:
(A) If an injured employee's employer does not provide a
managed health care plan approved by the commission for its
employees as described in subdivision (2) of this subsection, the
commission may require the employee to use health care providers
authorized by the commission's managed health care plan for care
and treatment of his or her compensable injuries; and
(B) If a claimant seeks to change his or her initial choice of
health care provider where neither the employer nor the commission
had an approved health care management plan at the time the initial
choice was made, and if the claimant's employer does not provide
access to such a plan as part of the employer's general health
insurance benefit, then the claimant shall be provided with a new health care provider from the commission's managed health care plan
available to him or her.
(c) When an injury has been reported to the commission by the
employer without protest, the commission or self-insured employer
may pay, within the maximum amount provided by schedule established
under this section, bills for health care services without
requiring the injured employee to file an application for benefits.
(d) The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, shall
provide for the replacement of artificial limbs, crutches, hearing
aids, eyeglasses and all other mechanical appliances provided in
accordance with this section which later wear out, or which later
need to be refitted because of the progression of the injury which
caused the devices to be originally furnished, or which are broken
in the course of and as a result of the employee's employment. The
commission, successor to the commission, other private carrier or
self-insured employer shall pay for these devices, when needed,
notwithstanding any time limits provided by law.
(e) No payment shall be made to a health care provider who is
suspended or terminated under the terms of section three-c of this
article except as provided in subsection (c) of said section.
(f) The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may
engage in and contract for medical cost containment programs, pharmacy benefits management programs, medical case management
programs and utilization review programs. Payments for these
programs shall be made from the workers' compensation fund or the
funds of the successor to the commission, other private carrier, or
self-insured employer. Any order issued pursuant to the program
shall be interlocutory in nature until an objecting party has
exhausted all review processes provided for by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable.
(g) Notwithstanding the provisions of this section, the
commission, successor to the commission, other private carrier or
self-insured employer may establish fee schedules, make payments
and take other actions required or allowed pursuant to article
twenty-nine-d, chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
(a) The commission shall establish a health care advisory
panel consisting of representatives of the various branches and
specialties among health care providers in this state which shall
be in existence until termination of the commission. There shall
be a minimum of five members of the health care advisory panel who
shall receive reasonable compensation for their services and
reimbursement for reasonable actual expenses. Each member of this
panel shall be provided appropriate professional or other liability
insurance, without additional premium, by the state board of risk and insurance management created pursuant to article twelve,
chapter twenty-nine of this code. The panel shall:
(1) Establish guidelines for the health care which is
reasonably required for the treatment of the various types of
injuries and occupational diseases within the meaning of section
three of this article;
(2) Establish protocols and procedures for the performance of
examinations or evaluations performed by physicians or medical
examiners pursuant to sections seven-a and eight of this article;
(3) Assist the commission in establishing guidelines for the
evaluation of the care provided by health care providers to injured
employees for purposes of section three-c of this article;
(4) Assist the commission in establishing guidelines regarding
the anticipated period of disability for the various types of
injuries pursuant to subsection (b), section seven-a of this
article; and
(5) Assist the commission in establishing appropriate
professional review of requests by health care providers to exceed
the guidelines for treatment of injuries and occupational diseases
established pursuant to subdivision (1) of this section.
(b) In addition to the requirements of subsection (a) of this
section, on or before the thirty-first day of December, two
thousand three, the board of managers shall promulgate a rule
establishing the process for the medical management of claims and awards of disability which includes, but is not limited to,
reasonable and standardized guidelines and parameters for
appropriate treatment, expected period of time to reach maximum
medical improvement and range of permanent partial disability
awards for common injuries and diseases or, in the alternative,
which incorporates by reference the medical and disability
management guidelines, plan or program being utilized by the
commission for the medical and disability management of claims,
with the requirements, standards, parameters and limitations of
such guidelines, plan or program having the same force and effect
as the rule promulgated in compliance herewith.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal
penalties.
(a) In case the personal injury causes death, reasonable
funeral or cemetery expense, in an amount to be fixed, from time to
time, by the commission, and upon its termination, the insurance
commissioner, shall be paid from the fund, or the private carrier,
payment to be made to the persons who have furnished the services
and supplies, or to the persons who have advanced payment for the
services and supplies, as the commission may determine proper, in
addition to any award made to the employee's dependents.
(b) A funeral director or cemeterian, or any person who
furnished the services and supplies associated with the funeral or
cemetery expenses, or a person who has advanced payment for the services and supplies, is prohibited from making any charge or
charges against the employee's dependents for funeral expenses
which would result in a total charge for funeral expenses in excess
of the amount fixed by the commission, and upon its termination,
the insurance commissioner, unless:
(1) The person seeking funeral expenses notifies, in writing
and prior to the rendering of any service, the employee's dependent
as to the exact cost of the service and the exact amount the
employee's dependent would be responsible for paying in excess of
the amount fixed by the commission or insurance commissioner; and
(2) The person seeking funeral expenses secures, in writing
and prior to the rendering of any service, consent from the
employee's dependent that he or she will be responsible to make
payment for the amount in excess of the amount fixed by the
commission or the insurance commissioner.
(c) Any person who knowingly and willfully seeks or receives
payment of funeral expenses in excess of the amount fixed by the
commission or the insurance commissioner without satisfying both
of the requirements of subsection (b) of this section is guilty of
a misdemeanor and, upon conviction thereof, shall be fined three
thousand dollars or confined in jail for a definite term of
confinement of twelve months, or both.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The terms "average weekly wage earnings, wherever earned,
of the injured employee, at the date of injury" and "average weekly
wage in West Virginia", as used in this chapter, 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) For all awards made on and after the effective date of the
amendment and reenactment of this section during the year two
thousand three, if the injury causes temporary total disability,
the employee shall receive during the continuance of the disability
a maximum weekly benefit to be computed on the basis of sixty-six
and two-thirds percent of the average weekly wage earnings,
wherever earned, of the injured employee, at the date of injury,
not to exceed one hundred percent of the average weekly wage in
West Virginia: Provided, That in no event shall an award for
temporary total disability be subject to annual adjustments
resulting from changes in the average weekly wage in West Virginia:
Provided, however, in the case of a claimant whose award was
granted prior to the effective date of the amendment and
reenactment of this section during the year two thousand three, the
maximum benefit rate shall be the rate applied under the prior enactment of this subsection which was in effect at the time the
injury occurred. The minimum weekly benefits paid under this
subdivision shall not be less than thirty-three and one-third
percent of the average weekly wage in West Virginia, except as
provided in sections six-d and nine of this article. In no event,
however, shall the minimum weekly benefits exceed the level of
benefits determined by use of the applicable federal minimum hourly
wage: Provided further, 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 in this subdivision that the
minimum weekly benefit shall not exceed the applicable federal
minimum hourly wage.
(c) Subdivision (b) of this section is limited as follows:
Aggregate award for a single injury causing temporary disability
shall be for a period not exceeding two hundred eight weeks;
aggregate award for a single injury for which an award of temporary
total disability benefits is made on or after the effective date of
the amendment and reenactment of this section in the year two
thousand three shall be for a period not exceeding one hundred four
weeks. Notwithstanding any other provision of this subdivision to
the contrary, no person may receive temporary total disability
benefits under an award for a single injury for a period exceeding one hundred four weeks from the effective date of the amendment and
reenactment of this section in the year two thousand three.
(d) For all awards of permanent total disability benefits that
are made on or after the second day of February, one thousand nine
hundred ninety-five, including those claims in which a request for
an award was pending before the division or which were in
litigation but not yet submitted for a decision, then benefits
shall be payable until the claimant attains the age necessary to
receive federal old age retirement benefits under the provisions of
the Social Security Act, 42 U.S.C. §§401 and 402, in effect on the
effective date of this section. The claimant shall be paid
benefits so as not to exceed a maximum benefit of sixty-six and
two-thirds percent of the claimant's average weekly wage earnings,
wherever earned, at the time of the date of injury not to exceed
one hundred percent of the average weekly wage in West Virginia.
The minimum weekly benefits paid under this section shall be as is
provided for in subdivision (b) of this section. In all claims in
which an award for permanent total disability benefits was made
prior to the second day of February, one thousand nine hundred
ninety-five, the awards shall continue to be paid at the rate in
effect prior to the effective date of the amendment and reenactment
of this section in the year two thousand three: Provided, That the
provisions of sections one through eight, inclusive, article four-a
of this chapter shall be applied thereafter to all prior awards that were previously subject to its provisions. A single or
aggregate permanent disability of eighty-five percent or more
entitles the employee to a rebuttable presumption of a permanent
total disability for the purpose of paragraph (2), subdivision (n)
of this section: Provided, however, That the claimant must also be
at least fifty percent medically impaired upon a whole body basis
or has sustained a thirty-five percent statutory disability
pursuant to the provisions of subdivision (f) of this section. The
presumption may be rebutted if the evidence establishes that the
claimant is not permanently and totally disabled pursuant to
subdivision (n) of this section. Under no circumstances may the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, 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 from the injury, the total permanent
disability award benefit rate shall be computed at the highest
benefit rate justified by any of the compensable injuries.
(e) (1) For all awards made on or after the effective date of
the amendment and reenactment of this section during the year two
thousand three, if the injury causes permanent disability less than
permanent total disability, the percentage of disability to total
disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability
determined at the maximum or minimum benefit rates as follows:
Sixty-six and two-thirds percent of the average weekly wage
earnings, wherever earned, of the injured employee at the date of
injury, not to exceed seventy percent of the average weekly wage in
West Virginia: Provided, That in no event shall an award for
permanent partial disability be subject to annual adjustments
resulting from changes in the average weekly wage in West Virginia:
Provided, however, That in the case of a claimant whose award was
granted prior to the effective date of the amendment and
reenactment of this section during the year two thousand three, the
maximum benefit rate shall be the rate applied under the prior
enactment of this section which was in effect at the time the
injury occurred.
(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 a
position is available to be offered, the award for the percentage
of partial disability shall be computed on the basis of six weeks
of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be
as provided in subdivision (b) of this section for temporary total
disability.
(f) If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage of
disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a two
percent disability.
The loss of all toes shall be considered a twenty-five percent
disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be considered
a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index fingers shall be considered a
thirty-two percent disability.
The loss of index and middle fingers shall be considered a
twenty percent disability.
The loss of middle and ring fingers shall be considered a
fifteen percent disability.
The loss of ring and little fingers shall be considered a ten
percent disability.
The loss of thumb, index and middle fingers shall be
considered a forty percent disability.
The loss of index, middle and ring fingers shall be considered
a thirty percent disability.
The loss of middle, ring and little fingers shall be
considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two
percent disability.
The loss of hand shall be considered a fifty percent
disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent
disability.
The total and irrecoverable loss of the sight of one eye shall
be considered a thirty-three percent disability. For the partial
loss of vision in one or both eyes, the percentages of disability
shall be determined by the commission, using as a basis the total
loss of one eye.
The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one or both ears, the
percentage of disability shall be determined by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, using as a basis the total loss
of hearing in both ears.
If a claimant sustains a compensable injury which results in
the total loss by severance of any of the bodily members named in
this subdivision or dies from sickness or noncompensable injury
before the commission makes the proper award for the injury, the
commission shall make the award to the claimant's dependents as
defined in this chapter, if any; the payment to be made in the same
installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of
the claimant after his or her remarriage and that this liability
shall not accrue to the estate of the claimant and is not subject
to any debts of, or charges against, the estate.
(g) If a claimant to whom has been made a permanent partial
award dies from sickness or noncompensable injury, the unpaid
balance of the award shall be paid to claimant's dependents as
defined in this chapter, if any; the payment to be made in the same
installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of
the claimant after his or her remarriage, and that this liability
shall not accrue to the estate of the claimant and is not subject
to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board has the force and effect of an
award.
(i) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section and
in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the degree of disability shall be determined
exclusively by the provisions of said 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
commission shall adopt standards for the evaluation of claimants
and the determination of a claimant's degree of whole body medical
impairment. Once the degree of medical impairment has been
determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant.
This subdivision is applicable to all injuries incurred and
diseases with a date of last exposure on or after the second day of
February, one thousand nine hundred ninety-five, to all
applications for an award of permanent partial disability made on
and after that date and to all applications for an award of
permanent partial disability that were pending before the
commission or pending in litigation but not yet submitted for
decision on and after that date. The prior provisions of this
subdivision remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the
executive director by the health care advisory panel, the executive
director shall appoint an interdisciplinary examining board
consisting of five members to evaluate claimants, including by
examination if the board elects. The interdisciplinary examining
board shall terminate upon termination of the commission and all
administrative and adjudicatory functions performed by the
interdisciplinary examining board shall be performed by the
following reviewing bodies for those claims over which they have
administrative jurisdiction: (1) The insurance commissioner or his
or her designated administrator of each of the funds set forth in
this chapter; (2) private carriers; or (3) self-insured employers.
The reviewing bodies shall employ or otherwise engage adequate
resources, including medical professionals, to perform the functions of the interdisciplinary examining board. 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 executive director. The
term of office of each member of the board shall be six years and
until his or her successor has been appointed and has qualified.
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 executive director, from time to time, shall fix the
compensation to be paid to each member of the board, and the
members are also 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 assigned by the provisions of this chapter,
consistent with the administrative policies developed by the
executive director with the approval of the board of managers.
(1) The executive director shall establish requirements for
the proper completion and support for an application for permanent
total disability benefits within an existing or a new rule no later
than the first day of January, two thousand four. Upon adoption of the rule by the board of managers, no issue of permanent total
disability may be referred to the interdisciplinary examining
board, or, any other reviewing body, unless a properly completed
and supported application for permanent total disability benefits
has been first filed Prior to the referral of any issue to the
interdisciplinary examining board, or, upon its termination, prior
to a reviewing body's adjudication of a permanent total disability
application, the commission, or reviewing body shall conduct
examinations of the claimant that it finds necessary and obtain all
pertinent records concerning the claimant's medical history and
reports of examinations and forward them to the board at the time
of the referral. The commission or reviewing body 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 or other reviewing body and shall furnish to the board or
other reviewing body any information requested. 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 may
have the claimant examined by medical specialists and vocational
rehabilitation specialists: Provided, That the employer is entitled
to only one examination on each issue present in a given claim.
Any additional examinations must be approved by the commission or other reviewing body and shall be granted only upon a showing of
good cause. The reports from all employer-conducted examinations
must be filed with the board or other reviewing body and served
upon the claimant. The board or other reviewing body may request
that those persons who have furnished reports and opinions
regarding a claimant provide it with additional information
considered necessary. Both the claimant and the employer, as well
as the commission, or other reviewing body may submit or obtain
reports from experts challenging or supporting the other reports in
the record regardless of whether or not the expert examined the
claimant or relied solely upon the evidence of record.
(2) If the board or a quorum of the board elects to examine a
claimant, the individual members shall conduct any examinations
that are pertinent to each of their specialties. If a claim
presents an issue beyond the expertise of the board, the board may
obtain advice or evaluations by other specialists. In addition, if
the board of managers determines that the number of applications
pending before the interdisciplinary examining board has exceeded
the level at which the board can review and make recommendations
within a reasonable time, the board of managers may authorize the
executive director to appoint any additional members to the board
that are necessary to reduce the backlog of applications. The
additional members shall be recommended by the health care advisory
panel. The executive director may make any appointments he or she chooses from the recommendations. The additional board members
shall not serve a set term but shall serve until the board of
managers determines that the number of pending applications has
been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters related
to the determination of permanent total disability under the
provisions of subdivision (n) of this section and to questions
related to medical cost containment, utilization review decisions
and managed care decisions arising under section three of this
article.
(4) In the event the board members or other reviewing body
elects to examine a claimant, the board or other reviewing body
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 or other reviewing body and the reasons
for the findings. Copies of the reports of all examinations made
by the board or other reviewing body shall be served upon the
parties and the commission until its termination. Each shall be
given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board or other reviewing body shall state its initial
recommendations to the commission in writing with an explanation
for each recommendation setting forth the reasons for each. The recommendations shall be served upon the parties and the commission
and each shall be afforded a thirty-day opportunity to respond in
writing to the board or other reviewing body regarding its
recommendations. The board or other reviewing body shall review
any responses and issue its final recommendations. The final
recommendations shall be effectuated by the entry of an appropriate
order by the commission, or, upon its termination, the private
carrier or self-insured employer. For all awards for permanent
total disability where the claim was filed on or after the
effective date of the amendment and reenactment of this section in
the year two thousand three, the commission or other reviewing body
shall establish the date of onset of the claimant's permanent total
disability as the date when a properly completed and supported
application for permanent total disability benefits as prescribed
in subdivision (1) of this subsection that results in a finding of
permanent total disability was filed with the commission or other
reviewing body: Provided, That upon notification of the commission
or other reviewing body by a claimant or his or her representative
that the claimant seeks to be evaluated for permanent total
disability, the commission or other reviewing body shall send the
claimant or his or her representative the proper application form.
The commission or other reviewing body shall set time limits for
the return of the application. A properly completed and supported
application returned within the time limits set by the commission or other reviewing body shall be treated as if received on the date
the commission or other reviewing body was notified the claimant
was seeking evaluation for permanent total disability: Provided,
however, That notwithstanding any other provision of this section
to the contrary, the onset date may not be sooner than the date
upon which the claimant meets the percentage thresholds of prior
permanent partial disability that are established by subsection (n)
of this section as a prerequisite to the claimant's qualification
for consideration for a permanent total disability award.
(6) Except as noted below, objections pursuant to section one,
article five of this chapter to any order shall be limited in scope
to matters within the record developed before the workers'
compensation commission and the board or other reviewing body and
shall further be limited to the issue of whether the board or other
reviewing body 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. The
preponderance of the evidence set forth in article one of this
chapter shall apply to decisions made by reviewing bodies other
than the commission instead of the clearly wrong standard. If
either party contends that the claimant's condition has changed
significantly since the review conducted by the board or other
reviewing body, the party may file a motion with the administrative law judge, together with a report supporting that assertion. Upon
the filing of the motion, the administrative law judge shall cause
a copy of the report to be sent to the examining board or other
reviewing body asking the board to review the report and provide
comments if the board chooses within sixty days of the board's
receipt of the report. The board or other reviewing body may
either supply comments or, at the board's or other reviewing body's
discretion, request that the claim be remanded to the board for
further review. If remanded, the claimant is not required to
submit to further examination by the employer's medical specialists
or vocational rehabilitation specialists. Following the remand,
the board or other reviewing body shall file its recommendations
with the administrative law judge for his or her review. If the
board or other reviewing body elects to respond with comments, the
comments shall be filed with the administrative law judge for his
or her review. Following the receipt of either the board's or
other reviewing body's recommendations or comments, the
administrative law judge shall 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 commission may submit one written opinion on
each issue pertinent to a given claim based upon a review of the
evidence of record either challenging or defending the board's or other reviewing body's findings and conclusions. Thereafter, based
upon the evidence 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.
The limitation of the scope of review otherwise provided in this
subsection is not applicable upon termination of the commission and
any objections shall be subject to article five of this chapter in
its entirety.
(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 to the compensation shall not vest in his or
her estate, except that any unpaid compensation which would have
been paid or payable to the employee up to the time of his or her
death, if he or she had lived, shall be paid to the dependents of
the injured employee if there are any dependents at the time of
death.
(m) The following permanent disabilities shall be conclusively presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n) (1) Other than for those injuries specified in subdivision
(m) of this section, in order to be eligible to apply for an award
of permanent total disability benefits for all injuries incurred
and all diseases, including occupational pneumoconiosis, regardless
of the date of last exposure, on and after the effective date of
the amendment and reenactment of this section during the year two
thousand three, a claimant: (A) Must have been awarded the sum of
fifty percent in prior permanent partial disability awards; (B)
must have suffered a single occupational injury or disease which
results in a finding by the commission that the claimant has
suffered a medical impairment of fifty percent; or (C) has
sustained a thirty-five percent statutory disability pursuant to
the provisions of subdivision (f) of this section. Upon filing an
application, the claim will be reevaluated by the examining board
or other reviewing body pursuant to subdivision (i) of this section
to determine if the claimant has suffered a whole body medical
impairment of fifty percent or more resulting from either a single
occupational injury or occupational disease or a combination of
occupational injuries and occupational diseases or has sustained a thirty-five percent statutory disability pursuant to the provisions
of subdivision (f) of this section. A claimant whose prior
permanent partial disability awards total eighty-five percent or
more shall also be examined by the board or other reviewing body
and must be found to have suffered a whole body medical impairment
of fifty percent in order for his or her request to be eligible for
further review. The examining board or other reviewing body 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 percent or has sustained a thirty-five
percent statutory disability pursuant to the provisions of
subdivision (f) of this section, the request shall be denied. Upon
a finding that the claimant has a fifty percent whole body medical
impairment or has sustained a thirty-five percent statutory
disability pursuant to the provisions of subdivision (f) of this
section, the review of the application continues as provided for in
the following paragraph of this subdivision. Those claimants whose
prior permanent partial disability awards total eighty-five percent
or more and who have been found to have a whole body medical
impairment of at least fifty percent or have sustained a thirty-
five percent statutory disability pursuant to the provisions of
subdivision (f) of this section are entitled to the rebuttable
presumption created pursuant to subdivision (d) of this section for
the remaining issues in the request.
(2) For all awards made on or after the effective date of the
amendment and reenactment of this section during the year two
thousand three, disability which renders the injured employee
unable to engage in substantial gainful activity requiring skills
or abilities which can be acquired or which are comparable to those
of any gainful activity in which he or she has previously engaged
with some regularity and over a substantial period of time shall be
considered in determining the issue of total disability. The
comparability of preinjury income to post-disability income will
not be a factor in determining permanent total disability.
Geographic availability of gainful employment within a driving
distance of seventy-five miles from the residence of the employee
or within the distance from the residence of the employee to his or
her preinjury employment, whichever is greater, will be a factor in
determining permanent total disability. For any permanent total
disability award made after the amendment and reenactment of this
section in the year two thousand three, permanent total disability
benefits shall cease at age seventy years. In addition, the
vocational standards adopted pursuant to subsection (m), section
seven, article three of this chapter shall be considered once they
are effective.
(3) In the event that a claimant, who has been found to have
at least a fifty percent whole body medical impairment or has
sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, is denied an
award of permanent total disability benefits pursuant to this
subdivision and accepts and continues to work at a lesser paying
job than he or she previously held, the claimant is eligible,
notwithstanding the provisions of section nine of this article, to
receive temporary partial rehabilitation benefits for a period of
four years. The benefits shall be paid at the level necessary to
ensure the claimant's receipt of the following percentages of the
average weekly wage earnings of the claimant at the time of injury
calculated as provided in this section and sections six-d and
fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no
event shall the benefits exceed one hundred percent of the average
weekly wage in West Virginia. In no event shall the benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection,
subsection (d) of this section or any other provision of this code
to the contrary, on any claim filed on or after the effective date
of the amendment and reenactment of this section in the year two
thousand three:
(A) No percent of whole body medical impairment existing as
the result of carpal tunnel syndrome for which a claim has been
made under this chapter may be included in the aggregation of
permanent disability under the provisions of this subsection or
subsection (d) of this section; and
(B) No percent of whole body medical impairment existing as
the result of any occupational disease, the diagnosis of which is
based solely upon symptoms rather than specific, objective and
measurable medical findings, and for which a claim has been made
under this chapter may be included in the aggregation of permanent
disability under the provisions of this subsection or subsection
(d) of this section.
(o) To confirm the ongoing permanent total disability status
of the claimant, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may elect to have any recipient of a permanent total disability
award undergo one independent medical examination during each of
the first five years that the permanent total disability award is
paid and one independent medical examination during each three-year
period thereafter until the claimant reaches the age of seventy
years: Provided, That the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, may elect to have any recipient of a permanent total
disability award under the age of fifty years undergo one independent medical examination during each year that the permanent
total disability award is paid until the recipient reaches the age
of fifty years, and thereafter one independent medical examination
during each three-year period thereafter until the claimant reaches
the age of seventy years.
§23-4-6a. Benefits and mode of payment to employees and
dependents for occupational pneumoconiosis;
further adjustment of claim for occupational
pneumoconiosis.
If an employee is found to be permanently disabled due to
occupational pneumoconiosis, as defined in section one of this
article, the percentage of permanent disability is determined by
the degree of medical impairment that is found by the occupational
pneumoconiosis board. The commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, shall enter an order setting forth the findings of the
occupational pneumoconiosis board with regard to whether the
claimant has occupational pneumoconiosis and the degree of medical
impairment, if any, resulting therefrom. That order is the final
decision of the commission for purposes of section one, article
five of this chapter. If a decision is objected to, the office of
judges shall affirm the decision of the occupational pneumoconiosis
board made following hearing unless the decision is clearly wrong
in view of the reliable, probative and substantial evidence on the whole record. Compensation is paid therefor in the same manner and
at the same rate as is provided for permanent disability under the
provisions of subdivisions (d), (e), (g), (h), (i), (j), (k), (m)
and (n), section six of this article: Provided, That for any
employee who applies for occupational pneumoconiosis benefits whose
award was granted on or after the effective date of the amendment
and reenactment of this section during the year two thousand three,
there shall be no permanent partial disability awarded based solely
upon a diagnosis of occupational pneumoconiosis, it being the
intent of the Legislature to eliminate any permanent partial
disability awards for occupational pneumoconiosis without a
specific finding of measurable impairment.
If the employee dies from occupational pneumoconiosis, the
benefits shall be as provided for in section ten of this article;
as to the benefits, sections eleven to fourteen, inclusive, of this
article apply.
In cases of permanent disability or death due to occupational
pneumoconiosis, as defined in section one of this article,
accompanied by active tuberculosis of the lungs, compensation shall
be payable as for disability or death due to occupational
pneumoconiosis alone.
The provisions of section sixteen of this article and sections
two, three, four and five, article five of this chapter providing
for the further adjustment of claims are applicable to the claim of any claimant who receives a permanent partial disability award for
occupational pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by
either a single incident of trauma or by exposure to hazardous
noise in the course of and resulting from employment, the degree of
permanent partial disability, if any, shall be determined in
accordance with the provisions of this section and awards made in
accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz shall be determined for the injured ear and
the total shall be divided by four to ascertain the average decibel
loss;
(2) The percent of monaural hearing impairment for the injured
ear shall be calculated by multiplying by one and six-tenths
percent the difference by which the aforementioned average decibel
loss exceeds twenty-seven and one-half decibels, up to a maximum of
one hundred percent hearing impairment, which maximum is reached at
ninety decibels; and
(3) The percent of monaural hearing impairment obtained shall
be multiplied by twenty-two and one-half to ascertain the degree of permanent partial disability.
(c) The percent of permanent partial disability for a binaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz is determined for each ear and the total for
each ear shall be divided by four to ascertain the average decibel
loss for each ear;
(2) The percent of hearing impairment for each ear is
calculated by multiplying by one and six-tenths percent the
difference by which the aforementioned average decibel loss exceeds
twenty-seven and one-half decibels, up to a maximum of one hundred
percent hearing impairment, which maximum is reached at ninety
decibels;
(3) The percent of binaural hearing impairment shall be
calculated by multiplying the smaller percentage (better ear) by
five, adding this figure to the larger percentage (poorer ear) and
dividing the sum by six; and
(4) The percent of binaural hearing impairment obtained shall
be multiplied by fifty-five to ascertain the degree of permanent
partial disability.
(d) No permanent partial disability benefits shall be granted
for tinnitus, psychogenic hearing loss, recruitment or hearing loss
above three thousand hertz.
(e) An additional amount of permanent partial disability shall
be granted for impairment of speech discrimination, if any, to
determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added
together and the result divided by two to calculate the average
percentage of speech discrimination, and the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination obtained. To determine the
additional amount for monaural impairment, the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination in the injured ear.
TABLE
% Of Speech Discrimination% of Permanent Partial Disability
90% . . . and up to and including........100%0%
80% . . . and up to but not including.....90%1%
70% . . . and up to but not including.....80%3%
60% . . . and up to but not including.....70%4%
0% . . . and up to but not including.....60%5%
(f) No temporary total disability benefits shall be granted
for noise-induced hearing loss.
(g) An application for benefits alleging a noise-induced
hearing loss shall set forth the name of the employer or employers and the time worked for each. The commission shall allocate to and
divide any charges resulting from the claim among the employers
with whom the claimant sustained exposure to hazardous noise for as
much as sixty days during the period of three years immediately
preceding the date of last exposure. The allocation is based upon
the time of exposure with each employer. In determining the
allocation, the commission shall consider all the time of
employment by each employer during which the claimant was exposed
and not just the time within the three-year period under the same
allocation as is applied in occupational pneumoconiosis cases.
(h) The commission shall provide, consistent with current
practice, for prompt referral the claims for evaluation, for all
medical reimbursement and for prompt authorization of hearing
enhancement devices.
(i) The provisions of this section and the amendments to
section six of this article insofar as applicable to permanent
partial disabilities for hearing loss are operative as to any claim
filed after thirty days from the effective date of this section.
(j) Effective upon termination of the commission, the
administrative duties governing hearing loss claims shall transfer
to the insurance commissioner.
§23-4-7. Release of medical information to employer; legislative
findings; effect of application for benefits;
duty of employer.
(a) The Legislature hereby finds and declares that two of the
primary objectives of the workers' compensation system established
by this chapter are to provide benefits to an injured claimant
promptly and to effectuate his or her return to work at the
earliest possible time; that the prompt dissemination of medical
information to the commission and employer as to diagnosis,
treatment and recovery is essential if these two objectives are to
be achieved; that claimants are increasingly burdened with the task
of contacting their treating physicians to request the furnishing
of detailed medical information to the commission and their
employers; that the commission is increasingly burdened with the
administrative responsibility of providing copies of medical
reports to the employer involved, whereas in other states the
employer can obtain the necessary medical information direct from
the treating physician; that much litigation is occasioned in this
state because of a lack of medical information having been received
by the employer as to the continuing disability of a claimant; and
that detailed narrative reports from the treating physician are
often necessary in order for the commission, the claimant's
representatives and the employer to evaluate a claim and determine
whether additional or different treatment is indicated.
(b) In view of the foregoing findings, a claimant irrevocably
agrees by the filing of his or her application for benefits that
any physician may release to and orally discuss with the claimant's employer, or its representative, or with a representative of the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, from time to time,
the claimant's medical history and any medical reports pertaining
to the occupational injury or disease and to any prior injury or
disease of the portion of the claimant's body to which a medical
impairment is alleged containing detailed information as to the
claimant's condition, treatment, prognosis and anticipated period
of disability and dates as to when the claimant will reach or has
reached his or her maximum degree of improvement or will be or was
released to return to work. For the exclusive purposes of this
chapter, the patient-physician privilege of confidentiality is
waived with regard to the physician's providing this medical
information to the commission, the employer or to the employer's
representative. Whenever a copy of any medical report is obtained
by the employer or its representative and the physician has not
also forwarded a copy of the medical report to the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, the employer shall forward a
copy of the medical report to the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, within ten days from the date the employer
received the medical report from the physician.
§23-4-7a. Monitoring of injury claims; legislative findings; review of medical evidence; recommendation of
authorized treating physician; independent
medical evaluations; temporary total disability
benefits and the termination thereof; mandatory
action; additional authority; suspension of
benefits.
(a) The Legislature hereby finds and declares that injured
claimants should receive the type of treatment needed as promptly
as possible; that overpayments of benefits with the resultant
hardship created by the requirement of repayment should be
minimized; and that to achieve these two objectives it is essential
that the commission establish and operate a systematic program for
the monitoring of injury claims where the disability continues
longer than might ordinarily be expected.
(b) In view of the foregoing findings, the commission, in
consultation with the health care advisory panel, shall establish
guidelines as to the anticipated period of disability for the
various types of injuries. Each injury claim in which temporary
total disability continues beyond the anticipated period of
disability established for the injury involved shall be reviewed by
the commission. If satisfied, after reviewing the medical
evidence, that the claimant would not benefit by an independent
medical evaluation, the commission shall mark the claim file
accordingly and shall diary the claim file as to the next date for required review which shall not exceed sixty days. If the
commission concludes that the claimant might benefit by an
independent medical evaluation, the commission shall proceed as
specified in subsections (d) and (e) of this section.
(c) When the authorized treating physician concludes that the
claimant has either reached his or her maximum degree of
improvement or is ready for disability evaluation, or when the
claimant has returned to work, the authorized treating physician
may recommend a permanent partial disability award for residual
impairment relating to and resulting from the compensable injury,
and the following provisions govern and control:
(1) If the authorized treating physician recommends a
permanent partial disability award of fifteen percent or less, the
commission shall enter an award of permanent partial disability
benefits based upon the recommendation and all other available
information. The claimant's entitlement to temporary total
disability benefits ceases upon the entry of the award unless
previously terminated under the provisions of subsection (e) of
this section.
(2) If, however, the authorized treating physician recommends
a permanent partial disability award in excess of fifteen percent,
or recommends a permanent total disability award, the claimant's
entitlement to temporary total disability benefits ceases upon the
receipt by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable,
of the medical report. The commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall refer the claimant to a physician or
physicians of its selection for independent evaluation prior to the
entry of a permanent disability award: Provided, That unless the
claimant has returned to work, the claimant shall thereupon receive
benefits which shall be at the permanent partial disability rate as
provided in subdivision (e), section six of this article until the
entry of a permanent disability award or until the claimant returns
to work. The amount of benefits paid prior to the receipt of the
independent evaluation report shall be considered and determined to
be payment of the permanent disability award granted, if any. In
the event that benefits actually paid exceed the amount granted by
the permanent partial disability award, the claimant is entitled to
no further benefits by the award and the excess paid shall be an
overpayment. For all awards made or nonawarded partial benefits
paid the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may only
recover the amount of overpaid benefits or expenses by withholding,
in whole or in part, future disability benefits payable to the
individual in the same or other claims and credit the amount
against the overpayment until it is repaid in full.
(d) When the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable,
concludes that an independent medical evaluation is indicated, or
that a claimant may be ready for disability evaluation in
accordance with other provisions of this chapter, the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall refer the claimant to a
physician or physicians of its selection for examination and
evaluation. If the physician or physicians selected recommend
continued, additional or different treatment, the recommendation
shall be relayed to the claimant and the claimant's treating
physician and the recommended treatment may be authorized by the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable.
(e) Notwithstanding any provision in subsection (c) of this
section, the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, shall
enter a notice suspending the payment of temporary total disability
benefits but providing a reasonable period of time during which the
claimant may submit evidence justifying the continued payment of
temporary total disability benefits when:
(1) The physician or physicians selected by the commission
conclude that the claimant has reached his or her maximum degree of
improvement;
(2) When the authorized treating physician advises the commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, that the claimant
has reached his or her maximum degree of improvement or that he or
she is ready for disability evaluation and when the authorized
treating physician has not made any recommendation with respect to
a permanent disability award as provided in subsection (c) of this
section;
(3) When other evidence submitted to the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, justifies a finding that the claimant has
reached his or her maximum degree of improvement; or
(4) When other evidence submitted or otherwise obtained
justifies a finding that the claimant has engaged or is engaging in
abuse, including, but not limited to, physical activities
inconsistent with his or her compensable workers' compensation
injury.
In all cases, a finding by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, that the claimant has reached his or her
maximum degree of improvement terminates the claimant's entitlement
to temporary total disability benefits regardless of whether the
claimant has been released to return to work. Under no
circumstances shall a claimant be entitled to receive temporary
total disability benefits either beyond the date the claimant is released to return to work or beyond the date he or she actually
returns to work.
In the event that the medical or other evidence indicates that
claimant has a permanent disability, unless he or she has returned
to work, the claimant shall thereupon receive benefits which shall
be at the permanent partial disability rate as provided in
subdivision (e), section six of this article until entry of a
permanent disability award, pursuant to an evaluation by a
physician or physicians selected by the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, or until the claimant returns to work.
The amount of benefits shall be considered and determined to be
payment of the permanent disability award granted, if any. In the
event that benefits actually paid exceed the amount granted under
the permanent disability award, the claimant is entitled to no
further benefits by the order.
(f) Notwithstanding the anticipated period of disability
established pursuant to the provisions of subsection (b) of this
section, whenever in any claim temporary total disability continues
longer than one hundred twenty days from the date of injury (or
from the date of the last preceding examination and evaluation
pursuant to the provisions of this subsection or pursuant to the
directions of the commission under other provisions of this
chapter), the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable,
shall refer the claimant to a physician or physicians of the
commission's selection for examination and evaluation in accordance
with the provisions of subsection (d) of this section and the
provisions of subsection (e) of this section are fully applicable:
Provided, That the requirement of mandatory examinations and
evaluations pursuant to the provisions of this subsection shall not
apply to any claimant who sustained a brain stem or spinal cord
injury with resultant paralysis or an injury which resulted in an
amputation necessitating a prosthetic appliance.
(g) The provisions of this section are in addition to and in
no way in derogation of the power and authority vested in the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, by other provisions
of this chapter or vested in the employer to have a claimant
examined by a physician or physicians of the employer's selection
and at the employer's expense, or vested in the claimant or
employer to file a protest, under other provisions of this chapter.
(h) All evaluations and examinations performed by physicians
shall be performed in accordance with the protocols and procedures
established by the health care advisory panel pursuant to section
three-b of this article: Provided, That the physician may exceed
these protocols when additional evaluation is medically necessary.
(i) The commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, may
suspend benefits being paid to a claimant if the claimant refuses,
without good cause, to undergo the examinations or needed
treatments provided for in this section until the claimant submits
to the examination or needed treatments. The executive director
shall propose rules for approval by the commission to implement the
provisions of this subsection.
§23-4-7b. Trial return to work.
(a) The Legislature hereby finds and declares that it is in
the interest of employees, employers and the commission that
injured employees be encouraged to return to work as quickly as
possible after an injury and that appropriate protections be
afforded to injured employees who return to work on a trial basis.
(b) Notwithstanding any other provisions of this chapter to
the contrary, the injured employee shall not have his or her
eligibility to receive temporary total disability benefits
terminated when he or she returns to work on a trial basis as set
forth in this section. An employee is eligible to return to work
on a trial basis when he or she is released to work on a trial
basis by the treating physician.
(c) When an injured employee returns to work on a trial basis,
the employer shall provide a trial return-to-work notification to
the commission. Upon receipt of the notification, the commission
shall note the date of the first day of work pursuant to the trial return and shall continue the claimant's eligibility for temporary
total disability benefits, but shall temporarily suspend the
payment of temporary total disability benefits during the period
actually worked by the injured employee. The claim shall be closed
on a temporary total disability basis either when the injured
employee or the authorized treating physician notifies the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, that the injured
employee is able to perform his or her job or automatically at the
end of a period of three months from the date of the first day of
work unless the employee notifies the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, that he or she is unable to perform the
duties of the job, whichever occurs first. If the injured employee
is unable to continue working due to the compensable injury for a
three-month period, the injured employee shall provide notice and
temporary total disability benefits shall be reinstated immediately
and he or she shall be referred for a rehabilitation evaluation as
provided in section nine of this article. No provision of this
section shall be construed to prohibit the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, from referring the injured employee for
any permanent disability evaluation required or permitted by any
other provision of this article.
(d) Nothing in this section shall prevent the employee from
returning to work without a trial return-to-work period.
(e) Nothing in this section shall be construed to require an
injured employee to return to work on a trial basis.
(f) The provisions of this section shall be terminated and be
of no further force and effect on the first day of July, two
thousand seven.
§23-4-8. Physical examination of claimant.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may,
after due notice to the employer and claimant, whenever in its
opinion it is necessary, order a claimant of compensation for a
personal injury other than occupational pneumoconiosis to appear
for examination before a medical examiner or examiners selected by
the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable; and the claimant
and employer, respectively, each have the right to select a
physician of the claimant's or the employer's own choosing and at
the claimant's or the employer's own expense to participate in the
examination. All examinations shall be performed in accordance
with the protocols and procedures established by the health care
advisory panel pursuant to section three-b of this article:
Provided, That the physician may exceed these protocols when
additional evaluation is medically necessary. The claimant and employer shall, respectively, be furnished with a copy of the
report of examination made by the medical examiner or examiners
selected by the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable.
The respective physicians selected by the claimant and employer
have the right to concur in any report made by the medical examiner
or examiners selected by the commission, or each may file with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, a separate report,
which separate report shall be considered by the commission in
passing upon the claim. If the compensation claimed is for
occupational pneumoconiosis, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, may, after due notice to the employer, and
whenever in the commission's opinion it is necessary, order a
claimant to appear for examination before the occupational
pneumoconiosis board provided for in section eight-a of this
article. In any case the claimant is entitled to reimbursement for
loss of wages, and to reasonable traveling and other expenses
necessarily incurred by him or her in obeying the order.
Where the claimant is required to undergo a medical
examination or examinations by a physician or physicians selected
by the employer, as aforesaid or in connection with any claim which
is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable traveling and other expenses in
connection with the examination or examinations, not to exceed the
expenses paid when a claimant is examined by a physician or
physicians selected by the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable.
§23-4-8a. Occupational pneumoconiosis board; composition; term of
office; duties; quorum; remuneration.
The occupational pneumoconiosis board shall consist of five
licensed physicians who shall be appointed by the executive
director. Effective upon termination of the commission, the
physicians shall be appointed by the insurance commissioner:
Provided, That those physicians serving as of the termination of
the commission shall continue to serve until replaced. No person
shall be appointed as a member of the board, or as a consultant
thereto, who has not by special study or experience, or both,
acquired special knowledge of pulmonary diseases. All members of
the occupational pneumoconiosis board shall be physicians of good
professional standing admitted to practice medicine and surgery in
this state. Two members shall be roentgenologists. One member of
the board shall be designated annually as chairman by the executive
director. The term of office of each member of the board shall be
six years. The five members of the existing board in office on the
effective date of this section shall continue to serve until their terms expire and until their successors have been appointed and
have qualified. Any member of the board may be appointed to any
number of terms. The function of the board is to determine all
medical questions relating to cases of compensation for
occupational pneumoconiosis under the direction and supervision of
the executive director and, effective upon termination of the
commission, the insurance commissioner. Any three members of the
board constitute a quorum for the transaction of its business if at
least one of the members present is a roentgenologist. The
executive director and, effective upon termination of the
commission, the insurance commissioner, shall, from time to time,
fix the compensation to be paid each member of the board. Members
are also entitled to reasonable and necessary traveling and other
expenses incurred while actually engaged in the performance of
their duties. In fixing the compensation of board members, the
executive director or the insurance commissioner shall take into
consideration the number of claimants a member of the board
actually examines, the actual time spent by members in discharging
their duties and the recommendation of the board of managers and
governor as to reasonable reimbursement per unit of time expended
based on comparative data for physicians within the state in the
same medical specialties.
§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.
The occupational pneumoconiosis board, upon reference to it by an appropriate party of a case of occupational pneumoconiosis,
shall notify the employee, or in case he or she is dead, the
claimant, and the employer, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
to appear before the board at a time and place stated in the
notice. If the employee is living, he or she shall appear before
the board at the time and place specified and submit to the
examination, including clinical and X-ray examinations, required by
the board. If a physician licensed to practice medicine in the
state makes an affidavit that the employee is physically unable to
appear at the time and place designated by the board, the board
shall, on notice to the proper parties, change the place and time
as may reasonably facilitate the hearing or examination of the
employee or may appoint a qualified specialist in the field of
respiratory disease to examine the claimant on behalf of the board.
The employee, or in case he or she is dead, the claimant, and
employer shall also produce as evidence to the board all reports of
medical and X-ray examinations which may be in their respective
possession or control, showing the past or present condition of the
employee. If the employee is dead, the notice of the board shall
further require that the claimant produce necessary consents and
permits so that an autopsy may be performed, if the board so
directs. When in the opinion of the board an autopsy is considered
necessary accurately and scientifically to ascertain and determine the cause of death, the autopsy examination shall be ordered by the
board, which shall designate a duly licensed physician, a
pathologist or any other specialists determined necessary by the
board, to make the examination and tests to determine the cause of
death and certify his or her or their written findings, in
triplicate, to the board. The findings shall be public records.
In the event that a claimant for compensation for the death refuses
to consent and permit the autopsy to be made, all rights for
compensation are forfeited.
The employee, or if he or she be dead, the claimant, and the
employer, shall be entitled to be present at all examinations
conducted by the board and to be represented by attorneys and
physicians.
§23-4-8c. Occupational pneumoconiosis board; reports and
distribution thereof; presumption; findings
required of board; objection to findings;
procedure thereon; limitations on refilings;
consolidation of claims.
(a) The occupational pneumoconiosis board, as soon as
practicable, after it has completed its investigation, shall make
its written report, to the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, of its findings and conclusions on every medical
question in controversy and the commission shall send one copy of the report to the employee or claimant and one copy to the
employer. The board shall also return to and file with the
commission all the evidence as well as all statements under oath,
if any, of the persons who appeared before it on behalf of the
employee or claimant, or employer, and also all medical reports and
X-ray examinations produced by or on behalf of the employee or
claimant, or employer.
(b) If it can be shown that the claimant or deceased employee
has been exposed to the hazard of inhaling minute particles of dust
in the course of and resulting from his or her employment for a
period of ten years during the fifteen years immediately preceding
the date of his or her last exposure to such hazard and that the
claimant or deceased employee has sustained a chronic respiratory
disability, it shall be presumed that the claimant is suffering or
the deceased employee was suffering at the time of his or her death
from occupational pneumoconiosis which arose out of and in the
course of his or her employment. This presumption is not
conclusive.
(c) The findings and conclusions of the board shall set forth,
among other things, the following:
(1) Whether or not the claimant or the deceased employee has
contracted occupational pneumoconiosis and, if so, the percentage
of permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was sufficient to have caused the claimant's or deceased employee's
occupational pneumoconiosis or to have perceptibly aggravated an
existing occupational pneumoconiosis or other occupational disease;
and
(3) What, if any, physician appeared before the board on
behalf of the claimant or employer and what, if any, medical
evidence was produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of the
findings and conclusions of the board, the party shall file with
the commission or, on or after the first day of July, one thousand
nine hundred ninety-one, with the office of judges, within thirty
days from receipt of the copy to that party, unless for good cause
shown the commission or chief administrative law judge extends the
time, the party's objections to the findings and conclusions of the
board in writing, specifying the particular statements of the
board's findings and conclusions to which such party objects. The
filing of an objection within the time specified is a condition of
the right to litigate the findings and therefore jurisdictional.
After the time has expired for the filing of objections to the
findings and conclusions of the board, the commission or
administrative law judge shall proceed to act as provided in this
chapter. If after the time has expired for the filing of
objections to the findings and conclusions of the board no
objections have been filed, the report of a majority of the board of its findings and conclusions on any medical question shall be
taken to be plenary and conclusive evidence of the findings and
conclusions stated in the report. If objection has been filed to
the findings and conclusions of the board, notice of the objection
shall be given to the board, and the members of the board joining
in the findings and conclusions shall appear at the time fixed by
the commission or office of judges for the hearing to submit to
examination and cross-examination in respect to the findings and
conclusions. At the hearing, evidence to support or controvert the
findings and conclusions of the board shall be limited to
examination and cross-examination of the members of the board and
to the taking of testimony of other qualified physicians and
roentgenologists.
(e) In the event that a claimant receives a final decision
that he or she has no evidence of occupational pneumoconiosis, the
claimant is barred for a period of three years from the date of the
occupational pneumoconiosis board's decision or until his or her
employment with the employer who employed the claimant at the time
designated as the claimant's last date of exposure in the denied
claim has terminated, whichever is sooner, from filing a new claim
or pursuing a previously filed, but unruled upon, claim for
occupational pneumoconiosis or requesting a modification of any
prior ruling finding him or her not to be suffering from
occupational pneumoconiosis. For the purposes of this subsection, a claimant's employment shall be considered to be terminated if,
for any reason, he or she has not worked for that employer for a
period in excess of ninety days. Any previously filed, but unruled
upon, claim shall be consolidated with the claim in which the
board's decision is made and shall be denied together with the
decided claim. The provisions of this subsection shall not be
applied in any claim where doing so would, in and of itself, later
cause a claimant's claim to be forever barred by the provisions of
section fifteen of this article.
(f) Effective upon termination of the commission, the
insurance commissioner shall assume all administrative powers and
responsibilities necessary to administer sections eight-a, eight-b
and eight-c of this article.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist employees to return to
suitable gainful employment after an injury. In order to encourage
workers to return to employment and to encourage and assist
employers in providing suitable employment to injured employees, it
is a priority of the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
to achieve early identification of individuals likely to need
rehabilitation services and to assess the rehabilitation needs of
these injured employees. It is the goal of rehabilitation to return injured employees to employment which is comparable in work
and pay to that which the individual performed prior to the injury.
If a return to comparable work is not possible, the goal of
rehabilitation is to return the individual to alternative suitable
employment, using all possible alternatives of job modification,
restructuring, reassignment and training, so that the individual
will return to productivity with his or her employer or, if
necessary, with another employer. The Legislature further finds
that it is the shared responsibility of the employer, the employee,
the physician and the commission to cooperate in the development of
a rehabilitation process designed to promote reemployment for the
injured employee.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in
temporary disability as determined by the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall at the earliest possible time
determine whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitation
services and if it is determined that the employee can be
physically and vocationally rehabilitated and returned to
remunerative employment by the provision of rehabilitation services including, but not limited to, vocational or on-the-job training,
counseling, assistance in obtaining appropriate temporary or
permanent work site, work duties or work hours modification, by the
provision of crutches, artificial limbs or other approved
mechanical appliances, or medicines, medical, surgical, dental or
hospital treatment or other services which the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, in its sole discretion
determines will directly assist the employee's return to
employment, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall immediately develop a rehabilitation plan for the employee
and, after due notice to the employer, expend an amount necessary
for that purpose: Provided, That the expenditure for vocational
rehabilitation shall not exceed twenty thousand dollars for any one
injured employee: Provided, however, That no payment shall be made
for such vocational rehabilitation purposes as provided in this
section unless authorized by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, prior to the rendering of the physical or
vocational rehabilitation, except that payments shall be made for
reasonable medical expenses without prior authorization if
sufficient evidence exists which would relate the treatment to the
injury and the attending physician or physicians have requested authorization prior to the rendering of the treatment: Provided
further, That payment for physical rehabilitation, including the
purchase of prosthetic devices and other equipment and training in
use of the devices and equipment, are considered expenses within
the meaning of section three of this article and are subject to the
provisions of sections three, three-b and three-c of this article.
The provision of any rehabilitation services may be pursuant to a
rehabilitation plan to be developed and monitored by a
rehabilitation professional for each injured employee or by such
other provider as determined by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable. Notwithstanding any other provision of
this section to the contrary, the commission may determine under
rules promulgated by the board of managers that a rehabilitation
plan or any component thereof is not appropriate for an injured
employee.
(c) In every case in which the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, orders physical or vocational
rehabilitation of a claimant as provided in this section, the
claimant shall, during the time he or she is receiving any
vocational rehabilitation or rehabilitative treatment that renders
him or her totally disabled during the period of rehabilitation, be
compensated on a temporary total disability basis for that period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's
average weekly wage earnings are less than the average weekly wage
earnings earned by the injured employee at the time of the injury,
he or she shall receive temporary partial rehabilitation benefits
calculated as follows: The temporary partial rehabilitation benefit
shall be seventy percent of the difference between the average
weekly wage earnings earned at the time of the injury and the
average weekly wage earnings earned at the new employment, both to
be calculated as provided in sections six, six-d and fourteen of
this article as the calculation is performed for temporary total
disability benefits, subject to the following limitations: In no
event are the benefits subject to the minimum benefit amounts
required by the provisions of subdivision (b), section six of this
article, nor may the benefits exceed the temporary total disability
benefits to which the injured employee would be entitled pursuant
to sections six, six-d and fourteen of this article during any
period of temporary total disability resulting from the injury in
the claim: Provided, That no temporary total disability benefits
shall be paid for any period for which temporary partial
rehabilitation benefits are paid: Provided, however, That the
aggregate award of temporary total rehabilitation or temporary
partial rehabilitation benefits for a single injury for which an
award of temporary total rehabilitation or temporary partial rehabilitation benefits is made on or after the effective date of
the amendment and reenactment of this section in the year two
thousand three shall be for a period not exceeding fifty-two weeks
unless the payment of temporary total rehabilitation disability
benefits is in conjunction with an approved vocational
rehabilitation plan for retraining, in which event the payment
period of temporary total rehabilitation disability benefits may be
extended for a period not to exceed a total of one hundred four
weeks. The amount of temporary partial rehabilitation benefits
payable under this subsection shall be reviewed every ninety days
to determine whether the injured employee's average weekly wage in
the new employment has changed and, if the change has occurred, the
amount of benefits payable under this subsection shall be adjusted
prospectively. Temporary partial rehabilitation benefits shall
only be payable when the injured employee is receiving vocational
rehabilitation services in accordance with a rehabilitation plan
developed under this section and no payment of temporary partial
rehabilitation benefits shall be made after the claimant has
received the vocational training provided under the rehabilitation
plan.
(e) The executive director, in consultation with the board of
managers, shall propose for promulgation rules for the purpose of
developing a comprehensive rehabilitation program which will assist
injured workers to return to suitable gainful employment after an injury in a manner consistent with the provisions and findings of
this section. The rules shall provide definitions for
rehabilitation facilities and rehabilitation services pursuant to
this section. Notwithstanding any other provision of this chapter
to the contrary, and in addition to the provisions of section three
of this article authorizing employers to participate in a managed
health care plan, including a managed health care plan that
provides physical and vocational rehabilitation services, an
employer may contract directly with one or more providers of
vocational rehabilitation services to be the employer's preferred
provider of vocational rehabilitation services for its employees
who receive injuries compensable under the provisions of this
chapter and the rules promulgated under this section may require
those employees to use the preferred providers.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his or her employment,
causes death, and disability is continuous from the date of the
injury until the date of death, or if death results from
occupational pneumoconiosis or from any other occupational disease,
the benefits shall be in the amounts and to the persons as follows:
(a) If there are no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of this article;
(b) If there are dependents as defined in subdivision (d) of
this section, the dependents shall be paid for as long as their
dependency continues in the same amount that was paid or would have
been paid the deceased employee for total disability had he or she
lived. The order of preference of payment and length of dependence
shall be as follows:
(1) A dependent widow or widower until death or remarriage of
the widow or widower, and any child or children dependent upon the
decedent until each child reaches eighteen years of age or where
the child after reaching eighteen years of age continues as a full-
time student in an accredited high school, college, university,
business or trade school, until the child reaches the age of
twenty-five years, or if an invalid child, to continue as long as
the child remains an invalid. All persons are jointly entitled to
the amount of benefits payable as a result of employee's death;
(2) A wholly dependent father or mother until death; and
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee;
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of
death, the payment shall be fifty dollars a month to continue for
the portion of the period of six years after the death, determined
by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, but no
partially dependent person shall receive compensation payments as
a result of the death of more than one employee.
Compensation under this subdivision and subdivision (b) of
this section shall, except as may be specifically provided to the
contrary in those subdivisions, cease upon the death of the
dependent, and the right to the compensation shall not vest in his
or her estate.
(d) "Dependent", as used in this chapter, means a widow,
widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided in this section,
invalid child or posthumous child, who, at the time of the injury
causing death, is dependent, in whole or in part, for his or her
support upon the earnings of the employee, stepchild under eighteen
years of age, or under twenty-five years of age when a full-time
student as provided in this section, child under eighteen years of
age legally adopted prior to the injury causing death, or under
twenty-five years of age when a full-time student as provided in
this section, father, mother, grandfather or grandmother, who, at
the time of the injury causing death, is dependent, in whole or in
part, for his or her support upon the earnings of the employee; and
invalid brother or sister wholly dependent for his or her support
upon the earnings of the employee at the time of the injury causing
death; and
(e) If a person receiving permanent total disability benefits
dies from a cause other than a disabling injury leaving any
dependents as defined in subdivision (d) of this section, an award
shall be made to the dependents in an amount equal to one hundred
four times the weekly benefit the worker was receiving at the time
of his or her death and be paid either as a lump sum or in periodic
payments, at the option of the dependent or dependents.
§23-4-11. To whom death benefits paid.
The benefits, in case of death, shall be paid to one or more
dependents of the decedent, or to any other persons, for the
benefit of all of the dependents, as may be determined by the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, who may apportion
the benefits among the dependents in the manner as they consider
just and equitable. Payment to a dependent subsequent in right may
be made if the commission considers proper and it operates to
discharge all other claims for the benefits.
§23-4-12. Application of benefits.
The dependent or person to whom benefits are paid shall apply
the benefits to the use of the several beneficiaries of the
benefits according to their respective claims upon the decedent for
support, in compliance with the finding and direction of the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable.
§23-4-14. Computation of benefits.
(a) The average weekly wage earnings, wherever earned, of the
injured person at the date of injury and the average weekly wage in
West Virginia as determined by the commission, and, effective the
first day of January, two thousand six, the insurance
commissioner, in effect at the date of injury, shall be taken as
the basis upon which to compute the benefits.
(1) In cases involving occupational pneumoconiosis or other
occupational diseases, the "date of injury" is the date of the last
exposure to the hazards of occupational pneumoconiosis or other
occupational diseases.
(2) In computing benefits payable on account of occupational
pneumoconiosis, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall deduct the amount of all prior workers' compensation benefits
paid to the same claimant on account of silicosis, but a prior
silicosis award shall not, in any event, preclude an award for
occupational pneumoconiosis otherwise payable under this article.
(b)(1) Until the first day of July, one thousand nine hundred
ninety-four, the expression "average weekly wage earnings, wherever
earned, of the injured person, at the date of injury", within the
meaning of this chapter, shall be computed based upon the daily
rate of pay at the time of the injury or upon the average pay
received during the two months, six months or twelve months immediately preceding the date of the injury, whichever is most
favorable to the injured employee, except for the purpose of
computing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(2) On and after the first day of July, one thousand nine
hundred ninety-four, the expression "average weekly wage earnings,
wherever earned, of the injured person, at the date of injury",
within the meaning of this chapter, shall be computed based upon
the daily rate of pay at the time of the injury or upon the weekly
average derived from the best quarter of wages out of the preceding
four quarters of wages as reported to the commission pursuant to
subsection (b), section two, article two of this chapter, whichever
is most favorable to the injured employee, except for the purpose
of computing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(c) The expression "average weekly wage in West Virginia",
within the meaning of this chapter, is the average weekly wage in
West Virginia as determined by the commissioner of the bureau of
employment programs in accordance with the provisions of sections
ten and eleven, article six, chapter twenty-one-a of this code and
other applicable provisions of said chapter.
(d) In any claim for injuries, including occupational pneumoconiosis and other occupational diseases, occurring on or
after the first day of July, one thousand nine hundred seventy-one,
any award for temporary total, permanent partial or permanent total
disability benefits or for dependent benefits shall be paid at the
weekly rates or in the monthly amount in the case of dependent
benefits applicable to the claimant in effect on the date of the
injury. In no event shall an award for permanent total disability
be subject to annual adjustments resulting from changes in the
average weekly wage in West Virginia.
§23-4-15. Application for benefits.
(a) To entitle any employee or dependent of a deceased
employee to compensation under this chapter, other than for
occupational pneumoconiosis or other occupational disease, the
application for compensation shall be made on the form or forms
prescribed by the commission and, effective upon termination of the
commission, the insurance commissioner, and filed with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, within six months
from and after the injury or death, as the case may be, and unless
filed within the six months period, the right to compensation under
this chapter is forever barred, such time limitation being hereby
declared to be a condition of the right and hence jurisdictional,
and all proofs of dependency in fatal cases must also be filed with
the commission within six months from and after the death. In case the employee is mentally or physically incapable of filing the
application, it may be filed by his or her attorney or by a member
of his or her family.
(b) To entitle any employee to compensation for occupational
pneumoconiosis under the provisions of this subsection, the
application for compensation shall be made on the form or forms
prescribed by the commission and effective upon termination of the
commission, the insurance commissioner, and filed with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, within three years
from and after the last day of the last continuous period of sixty
days or more during which the employee was exposed to the hazards
of occupational pneumoconiosis or within three years from and after
a diagnosed impairment due to occupational pneumoconiosis was made
known to the employee by a physician and unless filed within the
three-year period, the right to compensation under this chapter is
forever barred, such time limitation being hereby declared to be a
condition of the right and hence jurisdictional, or, in the case of
death, the application shall be filed by the dependent of the
employee within one year from and after the employee's death, and
such time limitation is a condition of the right and hence
jurisdictional.
(c) To entitle any employee to compensation for occupational
disease other than occupational pneumoconiosis under the provisions of this section, the application for compensation shall be made on
the form or forms prescribed by the commission and, effective upon
termination of the commission, the insurance commissioner, and
filed with the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
within three years from and after the day on which the employee was
last exposed to the particular occupational hazard involved or
within three years from and after the employee's occupational
disease was made known to him or her by a physician or which he or
she should reasonably have known, whichever last occurs, and unless
filed within the three-year period, the right to compensation under
this chapter shall be forever barred, such time limitation being
hereby declared to be a condition of the right and therefore
jurisdictional, or, in case of death, the application shall be
filed as aforesaid by the dependent of the employee within one year
from and after the employee's death, and such time limitation is a
condition of the right and hence jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
Notwithstanding any other provisions of this chapter,
nonresident alien beneficiaries are entitled to the same benefits
as citizens of the United States: Provided, That the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, in its discretion may make, and
the beneficiary shall accept, commutation of the benefits into a lump sum settlement and payment. Nonresident alien beneficiaries
within the meaning of this section means persons not citizens of
the United States residing outside of the territorial limits of the
United States at the time of the injury with respect to which
benefits are awarded.
§23-4-15b. Determination of nonmedical questions by commission;
claims for occupational pneumoconiosis; hearing.
(a) If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the last day
of the last continuous period of sixty days' exposure to the
hazards of occupational pneumoconiosis, the commission shall
determine whether the claimant was exposed to the hazards of
occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within three
years prior to the filing of his or her claim, whether in the state
of West Virginia the claimant was exposed to such hazard over a
continuous period of not less than two years during the ten years
immediately preceding the date of his or her last exposure to the
hazard and whether the claimant was exposed to the hazard over a
period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure to the
hazard. If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the
employee's occupational pneumoconiosis was made known to the employee by a physician, the commission shall determine whether the
claimant filed his or her application within that period and
whether in the state of West Virginia the claimant was exposed to
the hazard over a continuous period of not less than two years
during the ten years immediately preceding the date of last
exposure to the hazard and whether the claimant was exposed to the
hazard over a period of not less than ten years during the fifteen
years immediately preceding the date of last exposure to the
hazard. If a claim for occupational pneumoconiosis benefits is
filed by a dependent of a deceased employee, the commission shall
determine whether the deceased employee was exposed to the hazards
of occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within ten
years prior to the filing of the claim, whether in the state of
West Virginia the deceased employee was exposed to the hazard over
a continuous period of not less than two years during the ten years
immediately preceding the date of his or her last exposure to the
hazard and whether the claimant was exposed to the hazard over a
period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure to the
hazard. The commission shall also determine other nonmedical facts
that, in the commission's opinion, are pertinent to a decision on
the validity of the claim.
The commission shall enter an order with respect to nonmedical findings within ninety days following receipt by the commission of
both the claimant's application for occupational pneumoconiosis
benefits and the physician's report filed in connection with the
claimant's application and shall give each interested party notice
in writing of these findings with respect to all the nonmedical
facts. The findings and actions of the commission are final unless
the employer, employee, claimant or dependent, within thirty days
after receipt of the notice, objects to the findings, and unless an
objection is filed within the thirty-day period, the findings are
forever final, the time limitation is a condition of the right to
litigate the findings and therefor jurisdictional. Upon receipt of
an objection, the chief administrative law judge shall set a
hearing as provided in section nine, article five of this chapter.
In the event of an objection to the findings by the employer, the
claim shall, notwithstanding the fact that one or more hearings may
be held with respect to the objection, mature for reference to the
occupational pneumoconiosis board with like effect as if the
objection had not been filed. If the administrative law judge
concludes after the protest hearings that the claim should be
dismissed, a final order of dismissal shall be entered. The final
order is subject to appeal in accordance with the provisions of
sections ten and twelve, article five of this chapter. If the
administrative law judge concludes after the protest hearings that
the claim should be referred to the occupational pneumoconiosis board for its review, the order entered shall be interlocutory only
and may be appealed only in conjunction with an appeal from a final
order with respect to the findings of the occupational
pneumoconiosis board.
(b) The administrative duties required to be performed by the
commission pursuant to section fifteen-b of this article, and all
applicable exempt legislative rules shall transfer from the
commission to the insurance commissioner effective upon
termination of the commission.
§23-4-16. Jurisdiction over case continuous; modification of
finding or order; time limitation on awards;
reimbursement of claimant for expenses;
reopening cases involving permanent total
disability; promulgation of rules.
(a) The power and jurisdiction of the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, over each case is continuing and the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, may, in accordance
with the provisions of this section and after due notice to the
employer, make modifications or changes with respect to former
findings or orders that are justified. Upon and after the second
day of February, one thousand nine hundred ninety-five, the period
in which a claimant may request a modification, change or reopening of a prior award that was entered either prior to or after that
date shall be determined by the following subdivisions of this
subsection. Any request that is made beyond that period shall be
refused.
(1) Except as provided in section twenty-two of this article,
in any claim which was closed without the entry of an order
regarding the degree, if any, of permanent disability that a
claimant has suffered, or in any case in which no award has been
made, any request must be made within five years of the closure.
During that time period, only two requests may be filed.
(2) Except as stated below, in any claim in which an award of
permanent disability was made, any request must be made within five
years of the date of the initial award. During that time period,
only two requests may be filed. With regard to those occupational
diseases, including occupational pneumoconiosis, which are
medically recognized as progressive in nature, if any such request
is granted by the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
a new five-year period begins upon the date of the subsequent
award. With the advice of the health care advisory panel, the
executive director and the board of managers shall by rule
designate those progressive diseases which are customarily the
subject of claims.
(3) No further award may be made in fatal cases except within two years after the death of the employee.
(4) With the exception of the items set forth in subsection
(d), section three of this article, in any claim in which medical
or any type of rehabilitation service has not been rendered or
durable medical goods or other supplies have not been received for
a period of five years, no request for additional medical or any
type of rehabilitation benefits shall be granted nor shall any
medical or any type of rehabilitation benefits or any type of goods
or supplies be paid for by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, if they were provided without a prior
request. For the exclusive purposes of this subdivision, medical
services and rehabilitation services shall not include any
encounter in which significant treatment was not performed.
(b) In any claim in which an injured employee makes
application for a further period of temporary total disability, if
the application is in writing and filed within the applicable time
limit stated above, the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, shall pass upon the request within thirty days of the
receipt of the request. If the decision is to grant the request,
the order shall provide for the receipt of temporary total
disability benefits. In any case in which an injured employee
makes application for a further award of permanent partial disability benefits or for an award of permanent total disability
benefits, if the application is in writing and filed within the
applicable time limit as stated above, the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, shall pass upon the request within thirty
days of its receipt and, if the commission determines that the
claimant may be entitled to an award, the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, shall refer the claimant for further
examinations that are necessary.
(c) If the application is based on a report of any medical
examination made of the claimant and submitted by the claimant to
the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, in support of
his or her application and the claim is opened for further
consideration and additional award is later made, the claimant
shall be reimbursed for the expenses of the examination. The
reimbursement shall be made by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, to the claimant, in addition to all other
benefits awarded, upon due proof of the amount thereof being
furnished by the claimant, but shall in no case exceed the sum
fixed pursuant to the applicable schedule of maximum reasonable
fees.
(d) The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, has
continuing power and jurisdiction over claims in which permanent
total disability awards have been made after the eighth day of
April, one thousand nine hundred ninety-three.
(1) The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, shall
continuously monitor permanent total disability awards and may,
from time to time, after due notice to the claimant, reopen a claim
for reevaluation of the continuing nature of the disability and
possible modification of the award. At such times as the
commission may determine, the commission may require the claimant
to provide documents and other information to the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, including, but not limited to,
tax returns, financial records and affidavits demonstrating level
of income, recreational activities, work activities, medications
used and physicians or other medical or rehabilitation providers
treating or prescribing medication or other services for the
claimant; require the claimant to appear under oath before the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, or its duly
authorized representative and answer questions; and suspend or
terminate any benefits of a claimant who willfully fails to provide the information or appear as required: Provided, That the
commission shall develop, implement and complete a program as soon
as reasonably possible that requires each person receiving
permanent total disability benefits on the effective date of the
amendment and reenactment of this section in the year two thousand
three, and each person who is awarded those benefits thereafter, to
submit the tax returns and the affidavit described herein at least
once: Provided, however, That this requirement does not restrict
the commission's authority to require the information that may be
required herein at such other times as the commission may
determine. The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may reopen a claim for reevaluation when, in its sole discretion,
it concludes that there exists good cause to believe that the
claimant no longer meets the eligibility requirements under
subdivision (n), section six of this article. The eligibility
requirements, including any vocational standards, shall be applied
as those requirements are stated at the time of a claim's
reopening.
(2) Upon reopening a claim under this subsection, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, may take evidence,
have the claimant evaluated, make findings of fact and conclusions
of law and shall vacate, modify or affirm the original permanent total disability award as the record requires. The claimant's
former employer shall not be a party to the reevaluation, but shall
be notified of the reevaluation and may submit any information as
the employer may elect. In the event the claimant retains his or
her award following the reevaluation, the claimant's reasonable
attorneys' fees incurred in defending the award shall be paid by
the workers' compensation commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable. In addition, the workers' compensation commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall reimburse a prevailing
claimant for his or her costs in obtaining one evaluation on each
issue during the course of the reevaluation with the reimbursement
being made from the fund. The board of managers shall adopt
criteria for the determination of reasonable attorneys' fees.
(3) This subsection shall not be applied to awards made under
the provisions of subdivision (m), section six of this article.
The claimant may seek review of the final order as otherwise
provided in article five of this chapter for review of orders
granting or denying permanent disability awards.
(4) The commission shall establish by rule criteria for
review, reopening and reevaluating a claim under this subsection.
The commission shall at least quarterly provide a report of the
exercise of its authority to continuously monitor permanent total disability awards under this section to the joint committee on
government and finance and the joint commission on economic
development.
(e) A claimant may have only one active request for a
permanent disability award pending in a claim at any one time. Any
new request that is made while another is pending shall be
consolidated into the former request.
§23-4-16a. Interest on benefits.
Whenever any award of temporary total, permanent partial or
permanent total disability benefits or dependent benefits is made
on or after the first day of July, one thousand nine hundred
seventy-one, and a protest is filed to the award or an appeal is
taken from the award by an employer only and not by the claimant or
dependent and the award is not ultimately denied or reduced
following the protest or appeal, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall add interest to the award at the
simple rate of six percent per annum from the date the award would
have been payable had the protest or appeal not been filed or
taken, exclusive of any period for which a continuance was granted
upon motion of any party other than the protesting or appealing
employer. Any interest payable shall be charged to the account of
the protesting or appealing employer to the extent that the
benefits upon which such interest is computed are charged to the account of the employer.
§23-4-17. Commutation of periodical benefits.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, under
special circumstances and when it is considered advisable, may
commute periodical benefits to one or more lump-sum payments. Upon
the application of any claimant who has received an award of
partial or total disability, who is not a citizen of the United
States and desires to reside permanently beyond the territorial
limits of the United States, or upon the application of an alien
dependent of a deceased employee with respect of whose death award
of compensation has been made, the dependent residing in the
territorial limits of the United States at the time of the
decedent's death, and desiring to reside permanently beyond the
territorial limits of the United States, the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, may commute into one lump-sum payment the
periodical payments to which the claimant or dependent would be
entitled, but at the rate of one-half the amount that would be
payable to a citizen of the United States under like circumstances.
The lump-sum payment at the rate specified in this section
discharges all liability with respect to the award, but in no event
shall the award be paid until the claimant or dependent has
actually arrived and domiciled himself or herself outside the territorial limits of the United States, except a sufficient
portion of the award to pay transportation and other necessary
expenses.
§23-4-20. Postmortem examinations.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may,
after due notice to the employer and claimant, whenever it
considers it necessary, order an autopsy and may designate a duly
licensed physician to make the postmortem examination or
examinations that are necessary to determine the cause of the
deceased employee's death. The physician shall file with the
commission a written report of his or her findings. The claimant
and the employer, respectively, have the right to select a
physician of his, her or its own choosing and, at his or her or its
own expense, to participate in the postmortem examination. The
respective physicians selected by the claimant and the employer
have the right to concur in any report made by the physician
selected by the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
or each may file with the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, a separate report. In any case, including silicosis
cases, in which either the employer or a claimant requests that an
autopsy be performed, the autopsy shall be directed as provided in this section. In the event that a claimant for compensation for
the death refuses to consent and permit the autopsy to be made all
rights to compensation shall be forfeited.
§23-4-24. Permanent total disability awards; retirement age;
limitations on eligibility and the introduction
of evidence; effects of other types of awards;
procedures; requests for awards; jurisdiction.
(a) Notwithstanding any provision of this chapter to the
contrary, except as stated below, no claimant shall be awarded
permanent total disability benefits arising under subdivision (d)
or (n), section six of this article or section eight-c of this
article who terminates active employment and is receiving full old-
age retirement benefits under the Social Security Act, 42 U.S.C.
§401 and 402. Any claimant shall be evaluated only for the
purposes of receiving a permanent partial disability award premised
solely upon the claimant's impairments. This subsection is not
applicable in any claim in which the claimant has completed the
submission of his or her evidence on the issue of permanent total
disability prior to the later of the following: Termination of
active employment or the initial receipt of full old-age retirement
benefits under the Social Security Act. Once the claimant has
terminated active employment and has begun to receive full old-age
social security retirement benefits, the claimant may not produce
additional evidence of permanent total disability nor shall the claim be remanded for the production of the evidence.
(b) The workers' compensation commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, has the sole and exclusive jurisdiction to
initially hear and decide any claim or request pertaining, in whole
or in part, to subdivision (d) or (n), section six of this article.
Any claim or request for permanent total disability benefits
arising under said subdivisions shall first be presented to the
commission as part of the initial claim filing or by way of an
application for modification or adjustment pursuant to section
sixteen of this article. The office of judges may consider a claim
only after the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of
disability benefits for wages earned by
claimant.
(a) After the eighth day of April, one thousand nine hundred
ninety-three, a reduction in the amount of benefits as specified in
subsection (b) of this section shall be made whenever benefits are
being paid for a permanent total disability award regardless of
when the benefits were awarded. This section is not applicable to
the receipt of medical benefits or the payment for medical
benefits, the receipt of permanent partial disability benefits, the receipt of benefits by partially or wholly dependent persons, or to
the receipt of benefits pursuant to the provisions of subsection
(e), section ten of this article. Prior to the application of this
section to any claimant, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall give the claimant notice of the
effect of this section upon a claimant's award if and when the
claimant later earns wages.
(b) Whenever applicable benefits are paid to a claimant with
respect to the same time period in which the claimant has earned
wages as a result of his or her employment, the following reduction
in applicable benefits shall be made. The claimant's applicable
monthly benefits and monthly net wages received from the current
employment shall be added together. If the total exceeds by more
than one hundred twenty percent of the amount of the claimant's
monthly net wages earned during his or her last employment prior to
the award of permanent total disability benefits, the excess shall
be reduced by one dollar for each two dollars that the claimant's
monthly benefits and monthly net wages exceed the one hundred
twenty percent level: Provided, That in no event shall applicable
benefits be reduced below the minimum weekly benefits as provided
in subdivisions (b) and (d), section six of this article.
ARTICLE 4A. DISABLED WORKERS' RELIEF FUND.
§23-4A-1. Disabled workers' relief fund created.
(a) For the relief of persons who are receiving benefits
pursuant to a permanent total disability award in amounts less than
thirty-three and one-third percent of the average weekly wage for
the state of West Virginia per month, and for the relief of widows
who are receiving benefits on account of the death of an employee
in amounts less than thirty-three and one-third percent of the
average weekly wage in the state of West Virginia per month, and
for the relief of children of employees deceased before one
thousand nine hundred sixty-seven, who are under the age of twenty-
three and who are full-time students, and for the relief of other
persons who are receiving dependents' benefits on account of the
death of an employee in amounts less than the specific monetary
amounts set forth in section ten, article four of this chapter and
in effect as of the first day of July, one thousand nine hundred
seventy-three, there is continued a separate fund, heretofore known
as the "Disabled Workmen's Relief Fund", and which shall hereafter
be known as the "Disabled Workers' Relief Fund", which shall
consist of any sums that are, from time to time, made available to
carry out the objects and purposes of this article. The fund shall
be in the custody of the state treasurer and disbursements from the
fund shall be made upon requisition signed by the executive
director to those persons entitled to participate in the fund and
in such amounts to each participant that are provided in section
three of this article.
(b) Effective upon termination of the commission, the
"Disabled Workers' Relief Fund" shall be administered by the
successor to the commission and the administrative duties assigned
to the executive director shall be transferred to the chief
executive officer of the successor to the commission.
§23-4A-4. Mode of payment.
Payments to an individual entitled to participate in the
disabled workers' relief fund may be made from said fund by
separate check or may be made from said fund and from the workers'
compensation fund and, effective upon termination of the
commission, the old fund, by one check, but each such check drawn
on the two funds shall be so written as to show plainly the
payments made from each fund. No disbursements shall be made from
the workers' compensation fund or the old fund on account of any
provisions of this article.
§23-4A-9. Transfer of authority to the insurance commissioner.
Effective upon termination of the commission, the authority to
make the annual transfer as required in section eight of this
article shall transfer to the insurance commissioner.
ARTICLE 4B. COAL WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-9. Novation to the successor of the commission.
Upon the termination of the commission, all assets,
obligations and liabilities resulting from this article are
transferred to the successor of the commission. The state treasurer and all other departments, agencies and boards shall
cooperate to ensure this novation occurs in a expedient and orderly
fashion. Thereafter, the company shall offer insurance to provide
for the benefits required by this article until at least the
thirtieth day of June, two thousand eight.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-5. Administration.
Until the termination of the commission, the employers' excess
liability fund shall be administered by the executive director, who
shall employ any employees that are necessary to discharge his or
her duties and responsibilities under this article. All payments
of salaries and expenses of the employees and all expenses peculiar
to the administration of this article shall be made by the state
treasurer from the employers' excess liability fund upon
requisitions signed by the executive director.
§23-4C-6. Novation to the successor of the commission.
Upon the termination of the commission, all assets,
obligations and liabilities resulting from this article are
transferred to the successor of the commission. Thereafter, the
company shall offer insurance to provide for the benefits required
by this article until at least the thirtieth day of June, two
thousand eight. The state treasurer and all other departments,
agencies and boards shall cooperate to ensure this novation occurs
in an expedient and orderly fashion.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The workers' compensation commission, the successor to the
commission, other private insurance carriers and self-insured
employers may hear and determine all questions within their
jurisdiction. In matters arising under articles three and four of
this chapter, the commission, the successor to the commission,
other private insurance carriers and self-insured employers shall
promptly review and investigate all claims. The parties to a claim
shall file the information in support of their respective positions
as they consider proper. In addition, the commission, the
successor to the commission, other private insurance carriers and
self-insured employers may develop additional information that it
considers to be necessary in the interests of fairness to the
parties and in keeping with their fiduciary obligations With regard
to any issue which is ready for a decision, the commission, the
successor to the commission, other private insurance carriers and
self-insured employers shall explain the basis of its decisions.
(b) Except with regard to interlocutory matters and those
matters set forth in subsection (d) of this section, upon making
any decision, upon making or refusing to make any award or upon
making any modification or change with respect to former findings or orders, as provided by section sixteen, article four of this
chapter, the commission, the successor to the commission, other
private insurance carriers and self-insured employers shall give
notice, in writing, to the employer, employee, claimant or
dependant as the case may be, of its action. The notice shall
state the time allowed for filing an objection to the finding. The
action of the commission, the successor to the commission, other
private insurance carriers and self-insured employers is final
unless the employer, employee, claimant or dependant shall, within
thirty days after the receipt of the notice, object in writing, to
the finding. Unless an objection is filed within the thirty-day
period, the finding or action is final. This time limitation is a
condition of the right to litigate the finding or action and hence
jurisdictional. Any objection shall be filed with the office of
judges with a copy served upon the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, and other parties in accordance
with the procedures set forth in sections eight and nine of this
article. In all instances where a private carrier, self-insured
employer or a third-party administrator has made claims decisions
as authorized in this chapter, they shall provide claimants notice
of all claims decisions as provided by rules for self-
administration promulgated by the board of managers and shall be
bound by each requirement imposed upon the commission by this article.
(c) Where a finding or determination of the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, is protested only
by the employer, and the employer does not prevail in its protest,
and in the event the claimant is required to attend a hearing by
subpoena or agreement of counsel or at the express direction of the
commission or office of judges, then the claimant in addition to
reasonable traveling and other expenses shall be reimbursed for
loss of wages incurred by the claimant in attending the hearing.
(d) The commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is
applicable may amend, correct or set aside any order or decision on
any issue entered by it which, at the time of issuance or any time
thereafter, is discovered to be defective or clearly erroneous or
the result of mistake, clerical error or fraud, or otherwise not
supported by the evidence. Jurisdiction to take this action
continues until the expiration of two years from the date of entry
of an order unless the order is sooner affected by appellate
action: Provided, That corrective actions in the case of fraud may
be taken at any time.
(e) All objections to orders of the commission, the successor
to the commission, other private insurance carriers and self-
insured employers, whichever is applicable shall be styled in the name of the issuing entity. All appeals prosecuted from the office
of judges shall be in the name of the issuing party. In all
actions under this article, the workers' compensation commission
shall be the party in interest unless the parties to the appeal are
limited to a claimant and a self-insured employer.
§23-5-2. Application by employee for further adjustment of claim;
objection to modification; hearing.
In any case where an injured employee makes application in
writing for a further adjustment of his or her claim under the
provisions of section sixteen, article four of this chapter and the
application discloses cause for a further adjustment, the
commission shall, after due notice to the employer, make the
modifications, or changes with respect to former findings or orders
in the claim that are justified. Any party dissatisfied with any
modification or change made by the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, is, upon proper and timely
objection, entitled to a hearing, as provided in section nine of
this article.
§23-5-3. Refusal to reopen claim; notice; objection.
If it appears to the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, that an application filed under
section two of this article fails to disclose a progression or aggravation in the claimant's condition, or some other fact or
facts which were not previously considered in its former findings
and which would entitle the claimant to greater benefits than the
claimant has already received, the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, shall, within a reasonable
time, notify the claimant and the employer that the application
fails to establish a prima facie cause for reopening the claim.
The notice shall be in writing stating the reasons for denial and
the time allowed for objection to the decision of the commission.
The claimant may, within thirty days after receipt of the notice,
object in writing to the finding. Unless the objection is filed
within the thirty-day period, no objection shall be allowed. This
time limitation is a condition of the right to objection and hence
jurisdictional. Upon receipt of an objection, the office of judges
shall afford the claimant an evidentiary hearing as provided in
section nine of this article.
§23-5-4. Application by employer for modification of award;
objection to modification; hearing.
In any case in which an employer makes application in writing
for a modification of any award previously made to an employee of
the employer, the commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable, shall make a decision upon the application. If the application discloses cause for a further
adjustment, the commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is
applicable, shall, after due notice to the employee, make the
modifications or changes with respect to former findings or orders
that are justified. Any party dissatisfied with any modification
or change made or by the denial of an application for modification
is, upon proper and timely objection, entitled to a hearing as
provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any case it appears to the commission, the successor to
the commission, other private insurance carriers and self-insured
employers, whichever is applicable, that the application filed
pursuant to section four of this article fails to disclose some
fact or facts which were not previously considered by the
commission in its former findings, and which would entitle the
employer to any modification of the previous award, the commission
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, shall, within
sixty days from the receipt of the application, notify the claimant
and employer that the application fails to establish a just cause
for modification of the award. The notice shall be in writing
stating the reasons for denial and the time allowed for objection
to the decision of the commission, the successor to the commission, other private insurance carriers and self-insured employers,
whichever is applicable. The employer may, within thirty days
after receipt of the notice, object in writing to the decision.
Unless the objection is filed within the thirty-day period, no
objection shall be allowed. This time limitation is a condition of
the right to objection and hence jurisdictional. Upon receipt of
the objection, the office of judges shall afford the employer an
evidentiary hearing as provided in section nine of this article.
§23-5-7. Compromise and settlement.
With the exception of medical benefits for nonorthopedic
occupational disease claims, the claimant, the employer and the
workers' compensation commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable, may negotiate a final settlement of any
and all issues in a claim wherever the claim is in the
administrative or appellate processes. If the employer is not
active in the claim, the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, may negotiate a final
settlement of any and all issues in a claim except for medical
benefits for nonorthopedic occupational disease claims with the
claimant and said settlement shall be made a part of the claim
record. Except in cases of fraud, no issue that is the subject of
an approved settlement agreement may be reopened by any party, including the commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is
applicable. Any settlement agreement may provide for a lump-sum
payment or a structured payment plan, or any combination thereof,
or any other basis as the parties may agree. If a self-insured
employer later fails to make the agreed-upon payment, the
commission shall assume the obligation to make the payments and
shall recover the amounts paid or to be paid from the self-insurer
employer and its serties or guarantors or both as provided in
section five and five-a, article two of this chapter.
Each settlement agreement shall provide the toll free number
of the West Virginia State Bar Association and shall provide the
injured worker with five business days to revoke the executed
agreement. The insurance commissioner may void settlement
agreements entered into by an unrepresented injured worker which
are determined to be unconscionable pursuant to criteria
established by rule of the commissioner.
The amendments to this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-nine shall apply to all settlement agreements executed after
the effective date.
§23-5-8. Designation of office of administrative law judges;
powers of chief administrative law judge.
(a) The workers' compensation office of administrative law judges previously created pursuant to chapter twelve, acts of the
Legislature, one thousand nine hundred ninety, second extraordinary
session, is hereby continued and designated to be an integral part
of the workers' compensation system of this state. The office of
judges shall be under the supervision of a chief administrative law
judge who shall be appointed by the governor with the advice and
consent of the Senate.
(b) The chief administrative law judge shall be a person who
has been admitted to the practice of law in this state and shall
also have had at least four years of experience as an attorney.
The chief administrative law judge's salary shall be set by the
workers' compensation board of managers. The salary shall be
within the salary range for comparable chief administrative law
judges as determined by the state personnel board created by
section six, article six, chapter twenty-nine of this code. The
chief administrative law judge may only be removed by a vote of
two-thirds of the members of the workers' compensation board of
managers. Upon transfer of the office of judges to the insurance
commissioner, the chief administrative law judge shall continue to
serve as chief administrative law judge until the thirty-first day
of December, two thousand seven. Thereafter, appointments of the
chief administrative law judge shall be for terms of four years
beginning the first day of January, two thousand eight, and the
chief administrative law judge may be removed only for cause by the vote of four members of the Industrial Council. No other provision
of this code purporting to limit the term of office of any
appointed official or employee or affecting the removal of any
appointed official or employee is applicable to the chief
administrative law judge.
(c) The chief administrative law judge shall employ
administrative law judges and other personnel that are necessary
for the proper conduct of a system of administrative review of
orders issued by the workers' compensation commission which orders
have been objected to by a party. The employees shall be in the
classified service of the state. Qualifications, compensation and
personnel practice relating to the employees of the office of
judges, other than the chief administrative law judge, shall be
governed by the provisions of this code and rules of the classified
service pursuant to article six, chapter twenty-nine of this code.
All additional administrative law judges shall be persons who have
been admitted to the practice of law in this state and shall also
have had at least two years of experience as an attorney. The
chief administrative law judge shall supervise the other
administrative law judges and other personnel which collectively
shall be referred to in this chapter as the office of judges.
(d) The administrative expense of the office of judges shall
be included within the annual budget of the workers' compensation
commission and, upon termination of the commission, the insurance commissioner.
(e) The office of judges shall, from time to time, promulgate
rules of practice and procedure for the hearing and determination
of all objections to findings or orders of the workers'
compensation commission. The office of judges shall not have the
power to initiate or to promulgate legislative rules as that phrase
is defined in article three, chapter twenty-
nine-
a of this code. Any
rules adopted pursuant to this section which are applicable to the
provisions of this article are not subject to sections nine through
sixteen, inclusive, article three, chapter twenty-
nine-
a of this code.
The office of judges shall follow the remaining provisions of said
chapter for giving notice to the public of its actions and the
holding of hearings or receiving of comments on the rules.
(f) The chief administrative law judge has the power to hear
and determine all disputed claims in accordance with the provisions
of this article, establish a procedure for the hearing of disputed
claims, take oaths, examine witnesses, issue subpoenas, establish
the amount of witness fees, keep records and make reports that are
necessary for disputed claims and exercise any additional powers,
including the delegation of powers to administrative law judges or
hearing examiners that are necessary for the proper conduct of a
system of administrative review of disputed claims. The chief
administrative law judge shall make reports that are requested of
him or her by the workers' compensation board of managers.
(g) Effective upon termination of the commission, the office
of judges and the board of review shall be transferred to the
insurance commissioner, which shall have the oversight and
administrative authority heretofore provided to the executive
director and the board of managers.
§23-5-9. Hearings on objections to commission or self-insured
employer decisions; mediation; remand.
(a) Objections to a decision of the workers' compensation
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, made pursuant to the provisions of section one of this
article shall be filed with the office of judges. Upon receipt of
an objection, the office of judges shall notify the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, and all other
parties of the filing of the objection. The office of judges shall
establish by rule promulgated in accordance with the provisions of
subsection (e), section eight of this article an adjudicatory
process that enables parties to present evidence in support of
their positions and provides an expeditious resolution of the
objection. The employer, the claimant and the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall be notified
of any hearing at least ten days in advance. The office of judges shall review and amend, or modify, as necessary its procedural
rules by the first day of July, two thousand seven.
(b) The office of judges shall establish a program for
mediation to be conducted in accordance with the requirements of
rule twenty-five of the West Virginia trial court rules. The
parties may agree that the result of the mediation is binding. A
case may be referred to mediation by the administrative law judge
on his or her own motion, on motion of a party or by agreement of
the parties. Upon issuance of an order for mediation, the office
of judges shall assign a mediator from a list of qualified
mediators maintained by the West Virginia state bar.
(c) The office of judges shall keep full and complete records
of all proceedings concerning a disputed claim. Subject to the
rules of practice and procedure promulgated pursuant to section
eight of this article, the record upon which the matter shall be
decided shall include any evidence submitted by a party to the
office of judges, evidence taken at hearings conducted by the
office of judges and any documents in the claim files which relate
to the subject matter of the objection. The record may include
evidence or documents submitted in electronic form or other
appropriate medium in accordance with the rules of practice and
procedure. The office of judges is not bound by the usual common
law or statutory rules of evidence.
(d) All hearings shall be conducted as determined by the chief administrative law judge pursuant to the rules of practice and
procedure promulgated pursuant to section eight of this article.
Upon consideration of the designated record, the chief
administrative law judge or other authorized adjudicator within the
office of judges shall, based on the determination of the facts of
the case and applicable law, render a decision affirming, reversing
or modifying the action protested. The decision shall contain
findings of fact and conclusions of law and shall be mailed to all
parties.
(e) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of October, two
thousand three. Until the rule is promulgated, any rules
previously promulgated shall remain in full force and effect.
(f) The office of judges may remand a claim to the commission,
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, for further
development of the facts or administrative matters as, in the
opinion of the administrative law judge, may be necessary for a
full and complete disposition of the case. The administrative law
judge shall establish a time within which the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, must report back
to the administrative law judge.
(g) The decision of the workers' compensation office of judges regarding any objections to a decision of the workers' compensation
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, is final and benefits shall be paid or denied in
accordance with the decision unless the decision is subsequently
appealed and reversed in accordance with the procedures set forth
in this article.
§23-5-10. Appeal from administrative law judge decision to appeal
board.
The employer, claimant, workers' compensation commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, may appeal to the
appeal board created in section eleven of this article for a review
of a decision by an administrative law judge. No appeal or review
shall lie unless application therefor be made within thirty days of
receipt of notice of the administrative law judge's final action or
in any event within sixty days of the date of such final action,
regardless of notice and, unless the application for appeal or
review is filed within the time specified, no such appeal or review
shall be allowed, such time limitation being hereby declared to be
a condition of the right of such appeal or review and hence
jurisdictional.
§23-5-11. Workers' compensation board of review generally.
(a) On the thirty-first day of January, two thousand four, the workers' compensation appeal board heretofore established in this
section is hereby abolished.
(b) There is hereby created the "workers' compensation board
of review", which may also be referred to as "the board of review"
or "the board". Effective the first day of February, two thousand
four, the board of review shall exercise exclusive jurisdiction
over all appeals from the workers' compensation office judges
including any and all appeals pending with the board of appeals on
the thirty-first day of January, two thousand four.
(c) The board shall consist of three members.
(d) The governor shall appoint, from names submitted by the
"workers' compensation board of review nominating committee", with
the advice and consent of the Senate, three qualified attorneys to
serve as members of the board of review. If the governor does not
select a nominee for any vacant position from the names provided by
the nominating committee, he shall notify the nominating committee
of that circumstance and the committee shall provide additional
names for consideration by the governor. A member of the board of
review may be removed by the governor for official misconduct,
incompetence, neglect of duty, gross immorality or malfeasance and
then only after notice and opportunity to respond and present
evidence. No more than two of the members of the board may be of
the same political party. The members of the board of review shall
be paid an annual salary of eighty-five thousand dollars. Members are entitled to be reimbursed for actual and necessary travel
expenses incurred in the discharge of official duties in a manner
consistent with the guidelines of the travel management office of
the department of administration.
(e) The nominating committee shall consist of the following
members: (1) The president of the West Virginia state bar who will
serve as the chairperson of the committee; (2) an active member of
the West Virginia state bar workers' compensation committee
selected by the major trade association representing employers in
this state; (3) an active member of the West Virginia state bar
workers' compensation committee selected by the highest ranking
officer of the major employee organization representing workers in
this state; (4) the dean of the West Virginia university school of
law; and (5) the chairman of the judicial investigation committee.
(f) The nominating committee is responsible for reviewing and
evaluating candidates for possible appointment to the board of
review by the governor. In reviewing candidates, the nominating
committee may accept comments from and request information from any
person or source.
(g) Each member of the nominating committee may submit up to
three names of qualified candidates for each position on the board
of review: Provided, That the member of the nominating committee
selected by the major trade organization representing employers of
this state shall submit at least one name of a qualified candidate for each position on the board who either is, or who represents,
small business employers of this state. After careful review of
the candidates, the committee shall select a minimum of one
candidate for each position on the board.
(h) No later than the first day of November, two thousand
three, the nominating committee shall present to the governor its
list of candidates for the initial board of review. The governor
shall appoint the initial board no later than the thirty-first day
of December, two thousand three: Provided, That upon the thirty-
first day of December, two thousand three, the deadline for filling
all positions of the board of review will be extended, as
necessary, if, on or before that date, the governor has timely
requested additional names from the nominating committee.
Thereafter, the nominating committee shall meet at the request of
the governor in order to make timely recommendations to the
governor for appointees to the board as the initial and subsequent
terms expire or become vacant. The recommendations shall be
submitted no later than thirty days prior to the expiration of any
term.
(i) Of the initial appointments, one member shall be appointed
for a term ending the thirty-first day of December, two thousand
six; one member shall be appointed for a term ending the thirty-
first day of December, two thousand eight; and one member shall be
appointed for a term ending the thirty-first day of December, two thousand ten. Thereafter, the appointments shall be for six-year
terms.
(j) A member of the board of review must, at the time he or
she takes office and thereafter during his or her continuance in
office, be a resident of this state, be a member in good standing
of the West Virginia state bar, have a minimum of ten years'
experience as an attorney admitted to practice law in this state
prior to appointment and have a minimum of five years' experience
in preparing and presenting cases or hearing actions and making
decisions on the basis of the record of those hearings before
administrative agencies, regulatory bodies or courts of record at
the federal, state or local level.
(k) No member of the board of review may hold any other
office, or accept any appointment or public trust, nor may he or
she become a candidate for any elective public office or nomination
thereto. Violation of this subsection requires the member to
vacate his or her office. No member of the board of review may
engage in the practice of law during his or her term of office.
(l) A vacancy occurring on the board other than by expiration
of a term shall be filled in the manner original appointments were
made, for the unexpired portion of the term.
(m) The board shall designate one of its members in rotation
to be chairman of the board for as long as the board may determine
by order made and entered of record. In the absence of the chairman, any other member designated by the members present shall
act as chairman.
(n) The board of review shall meet as often as necessary to
hold review hearings, at such times and places as the chairman may
determine. Two members shall be present in order to conduct review
hearings or other business. All decisions of the board shall be
determined by a majority of the members of the board.
(o) The board of review shall make general rules regarding the
pleading, including the form of the petition and any responsive
pleadings, practice and procedure to be used by the board.
(p) The board of review may hire a clerk and other
professional and clerical staff necessary to carry out the
requirements of this article. It is the duty of the clerk of the
board of review to attend in person, or by deputy, all the sessions
of the board, to obey its orders and directions, to take care of
and preserve in an office, kept for the purpose, all records and
papers of the board and to perform other duties as prescribed by
law or required of him or her by the board. All employees of the
board shall serve at the will and pleasure of the board. The
board's employees are exempt from the salary schedule or pay plan
adopted by the division of personnel. All personnel of the board
of review shall be under the supervision of the chairman of the
board of review.
(q) If deemed necessary by the board, the board may, through staffing or other resources, procure assistance in review of
medical portions of decisions.
(r) Upon the conclusion of any hearing, or prior thereto with
concurrence of the parties, the member shall promptly determine the
matter and make an award in accordance with his or her
determination.
(s) The award shall become a part of the commission file. A
copy of the award shall be sent forthwith by mail to all parties in
interest.
(t) The award is final when entered. The award shall contain
a statement explaining the rights of the parties to an appeal to
the board of review and the applicable time limitations involved.
(u) The board shall submit a budget to the executive director
for inclusion in the budget for the workers' compensation
commission sufficient to adequately provide for the administrative
and other operating expenses of the board.
(v) The board shall report monthly to the board of managers on
the status of all claims on appeal.
(w) Effective upon termination of the commission, the board of
review shall be transferred to the insurance commissioner which
shall have the oversight and administrative authority heretofore
provided to the executive director and the board of managers.
§23-5-12. Appeal to board; procedure; remand and supplemental
hearing.
(a) Any employer, employee, claimant or dependent, who shall
feel aggrieved at any final action of the administrative law judge
taken after a hearing held in accordance with the provisions of
section nine of this article, shall have the right to appeal to the
board created in section eleven of this article for a review of
such action. The workers' compensation commission, the successor
to the commission, other private insurance carriers and self-
insured employers, whichever is applicable, shall likewise have the
right to appeal to the board any final action taken by the
administrative law judge. The aggrieved party shall file a written
notice of appeal with the office of judges directed to the board,
within thirty days after receipt of notice of the action complained
of, or in any event, regardless of notice, within sixty days after
the date of the action complained of, and unless the notice of
appeal is filed within the time specified, no appeal shall be
allowed, the time limitation is a condition of the right to appeal
and hence jurisdictional. The office of judges shall notify the
other parties immediately upon the filing of a notice of appeal.
The notice of appeal shall state the ground for review and whether
oral argument is requested. The office of judges shall forthwith
make up a transcript of the proceedings before the office of judges
and certify and transmit it to the board. The certificate shall
incorporate a brief recital of the proceedings in the case and
recite each order entered and the date thereof.
(b) The board shall set a time and place for the hearing of
arguments on each claim and shall notify the interested parties
thereof. The review by the board shall be based upon the record
submitted to it and such oral argument as may be requested and
received. The board may affirm, reverse, modify or supplement the
decision of the administrative law judge and make such disposition
of the case as it determines to be appropriate. Briefs may be
filed by the interested parties in accordance with the rules of
procedure prescribed by the board. The board may affirm the order
or decision of the administrative law judge or remand the case for
further proceedings. It shall reverse, vacate or modify the order
or decision of the administrative law judge if the substantial
rights of the petitioner or petitioners have been prejudiced
because the administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of
the administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) After a review of the case, the board shall issue a written decision to be filed with the commission and a copy thereof
sent by mail to the parties.
(1) All decisions, findings of fact and conclusions of law of
the board of review shall be in writing and state with specificity
the laws and facts relied upon to sustain, reverse or modify the
administrative law judge's decision.
(2) Decisions of the board of review shall be made by a
majority vote of the board of review.
(3) A decision of the board of review is binding upon the
executive director and the commission and the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, with respect to the parties
involved in the particular appeal. The executive director, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall have the
right to seek judicial review of a board of review decision
irrespective of whether or not he or she appeared or participated
in the appeal to the board of review.
(d) Instead of affirming, reversing or modifying the decision
of the administrative law judge, the board may, upon motion of any
party or upon its own motion, for good cause shown, to be set forth
in the order of the board, remand the case to the chief
administrative law judge for the taking of such new, additional or
further evidence as in the opinion of the board may be necessary for a full and complete development of the facts of the case. In
the event the board shall remand the case to the chief
administrative law judge for the taking of further evidence, the
administrative law judge shall proceed to take new, additional or
further evidence in accordance with any instruction given by the
board within thirty days after receipt of the order remanding the
case. The chief administrative law judge shall give to the
interested parties at least ten days' written notice of the
supplemental hearing, unless the taking of evidence is postponed by
agreement of parties, or by the administrative law judge for good
cause. After the completion of a supplemental hearing, the
administrative law judge shall, within sixty days, render his or
her decision affirming, reversing or modifying the former action of
the administrative law judge. The decision shall be appealable to,
and proceeded with by the board of review in the same manner as
other appeals. In addition, upon a finding of good cause, the
board may remand the case to the workers' compensation commission,
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, for further
development. Any decision made by the commission, the successor to
the commission, other private insurance carriers and self-insured
employers, whichever applicable, following a remand shall be
subject to objection to the office of judges and not to the board.
The board may remand any case as often as in its opinion is necessary for a full development and just decision of the case.
(e) All appeals from the action of the administrative law
judge shall be decided by the board at the same session at which
they are heard, unless good cause for delay thereof be shown and
entered of record.
(f) In all proceedings before the board, any party may be
represented by counsel.
§23-5-15. Appeals from final decisions of board to supreme court
of appeals; procedure; costs.
(a) Review of any final decision of the board, including any
order of remand, may be prosecuted by either party or by the
workers' compensation commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable, to the supreme court of appeals within
thirty days from the date of the final order by filing a petition
therefor with the court against the board and the adverse party or
parties as respondents. Unless the petition for review is filed
within the thirty-day period, no appeal or review shall be allowed,
such time limitation is a condition of the right to such appeal or
review and hence jurisdictional. The clerk of the supreme court of
appeals shall notify each of the respondents and the workers'
compensation commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is
applicable, of the filing of such petition. The board shall, within ten days after receipt of the notice, file with the clerk of
the court the record of the proceedings had before it, including
all the evidence. The court or any judge thereof in vacation may
thereupon determine whether or not a review shall be granted. If
review is granted to a nonresident of this state, he or she shall
be required to execute and file with the clerk before an order or
review shall become effective, a bond, with security to be approved
by the clerk, conditioned to perform any judgment which may be
awarded against him or her. The board may certify to the court and
request its decision of any question of law arising upon the
record, and withhold its further proceeding in the case, pending
the decision of court on the certified question, or until notice
that the court has declined to docket the same. If a review is
granted or the certified question is docketed for hearing, the
clerk shall notify the board and the parties litigant or their
attorneys and the workers' compensation commission, the successor
to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, of that fact by
mail. If a review is granted or the certified question docketed,
the case shall be heard by the court in the same manner as in other
cases, except that neither the record nor briefs need be printed.
Every review granted or certified question docketed prior to thirty
days before the beginning of the term, shall be placed upon the
docket for that term. The attorney general shall, without extra compensation, represent the board in such cases. The court shall
determine the matter brought before it and certify its decision to
the board and to the commission. The cost of the proceedings on
petition, including a reasonable attorney's fee, not exceeding
thirty dollars to the claimant's attorney, shall be fixed by the
court and taxed against the employer if the latter is unsuccessful.
If the claimant, or the commission (in case the latter is the
applicant for review) is unsuccessful, the costs, not including
attorney's fees, shall be taxed against the commission, payable out
of the workers' compensation fund, or shall be taxed against the
claimant, in the discretion of the court. But there shall be no
cost taxed upon a certified question.
(b) In reviewing a decision of the board of review, the
supreme court of appeals shall consider the record provided by the
board and give deference to the board's findings, reasoning and
conclusions, in accordance with subsections (c) and (d) of this
section.
(c) If the decision of the board represents an affirmation of
a prior ruling by both the commission and the office of judges that
was entered on the same issue in the same claim, the decision of
the board may be reversed or modified by the supreme court of
appeals only if the decision is in clear violation of
constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board's material misstatement or mischaracterization of particular components of the
evidentiary record. The court may not conduct a de novo
re-weighing of the evidentiary record. If the court reverses or
modifies a decision of the board pursuant to this subsection, it
shall state with specificity the basis for the reversal or
modification and the manner in which the decision of the board
clearly violated constitutional or statutory provisions, resulted
from erroneous conclusions of law, or was based upon the board's
material misstatement or mischaracterization of particular
components of the evidentiary record.
(d) If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the office
of judges that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the supreme
court of appeals only if the decision is in clear violation of
constitutional or statutory provisions, is clearly the result of
erroneous conclusions of law, or is so clearly wrong based upon the
evidentiary record that even when all inferences are resolved in
favor of the board's findings, reasoning and conclusions, there is
insufficient support to sustain the decision. The court may not
conduct a de novo re-weighing of the evidentiary record. If the
court reverses or modifies a decision of the board pursuant to this
subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions,
resulted from erroneous conclusions of law, or was so clearly wrong
based upon the evidentiary record that even when all inferences are
resolved in favor of the board's findings, reasoning and
conclusions, there is insufficient support to sustain the decision.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide
communications protocol data; distribution of
net terminal income; remittance through
electronic transfer of funds; establishment
of accounts and nonpayment penalties;
commission control of accounting for net
terminal income; settlement of accounts;
manual reporting and payment may be required;
request for reports; examination of accounts
and records.
(a) The commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol
documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery terminals.
(b) The gross terminal income of a licensed racetrack shall
be remitted to the commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the commission. Licensed racetracks
must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the commission, the commission shall
deduct an amount sufficient to reimburse the commission for its
actual costs and expenses incurred in administering racetrack
video lottery at the licensed racetrack, and the resulting amount
after the deduction is the net terminal income. The amount
deducted for administrative costs and expenses of the commission
may not exceed four percent of gross terminal income: Provided,
That any amounts deducted by the commission for its actual costs
and expenses that exceeds its actual costs and expenses shall be
deposited into the state lottery fund. For all fiscal years
beginning on or after the first day of July, two thousand one,
the commission shall not receive an amount of gross terminal
income in excess of the amount of gross terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income
received during the fiscal year ending on the thirtieth day of
June, two thousand one, shall be deposited into the fund
established in section eighteen-a, article twenty-two of this
chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after the first
day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, shall be divided as set out in section ten-b of
this article. The licensed racetrack's share is in lieu of all
lottery agent commissions and is considered to cover all costs
and expenses required to be expended by the licensed racetrack in
connection with video lottery operations. The division shall be
made as follows:
(1) The commission shall receive thirty percent of net
terminal income, which shall be paid into the state lottery fund
as provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen
percent of net terminal income at a licensed racetrack shall be
deposited in the special fund established by the licensee, and
used for payment of regular purses in addition to other amounts
provided for in article twenty-three, chapter nineteen of this code, on and after the first day of July, two thousand five, the
rate shall be seven percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Beginning the first day of July, one thousand nine
hundred ninety-nine, and thereafter, any amount in excess of the
two percent received during the fiscal year one thousand nine
hundred ninety-nine by a county in which a racetrack is located
that has participated in the West Virginia thoroughbred
development fund since on or before the first day of January, one
thousand nine hundred ninety-nine shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, said fifty percent to be divided
among the municipalities on a per capita basis as determined by
the most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine
hundred ninety-nine, and thereafter, any amount in excess of the
two percent received during the fiscal year one thousand nine
hundred ninety-nine by a county in which a racetrack other than
a racetrack described in paragraph (A) of this proviso is located
and where the racetrack has been located in a municipality within the county since on or before the first day of January, one
thousand nine hundred ninety-nine shall be divided, if
applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any other county other that a county
described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the licensed racing
association by making a deposit into a special fund to be
established by the racing commission to be used for payment into
the pension plan for all employees of the licensed racing
association;
(5) The West Virginia thoroughbred development fund created
under section thirteen-b, article twenty-three, chapter nineteen
of this code and the West Virginia greyhound breeding development
fund created under section ten of said article shall receive an
equal share of a total of not less than one and one-half percent
of the net terminal income: Provided, That for any racetrack
which does not have a breeder's program supported by the
thoroughbred development fund or the greyhound breeding development fund, the one and one-half percent provided for in
this subdivision shall be deposited in the special fund
established by the licensee and used for payment of regular
purses, in addition to other amounts provided in subdivision (2)
of this subsection and article twenty-three, chapter nineteen of
this code.
(6) The West Virginia racing commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code.
(7) A licensee shall receive forty-seven percent of net
terminal income.
(8) (A) The tourism promotion fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income: Provided, That for the
fiscal year beginning the first day of July, two thousand three,
the tourism commission shall transfer from the tourism promotion
fund five million dollars of the three percent of the net
terminal income described in this section and section ten-b of
this article into the fund administered by the West Virginia
economic development authority pursuant to section seven, article
fifteen, chapter thirty-one of this code, five million dollars
into the capitol renovation and improvement fund administered by
the department of administration pursuant to section six, article four, chapter five-a of this code and five million dollars into
the tax reduction and federal funding increased compliance fund;
and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this three percent
of net terminal income and the three percent of net terminal
income described in paragraph (B), subdivision (8), subsection
(a), section ten-b of this article shall be distributed as
provided in this paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the tourism promotion fund created under
section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal
income described in this section and in section ten-b of this
article shall be deposited into the development office promotion
fund created under section three-b, article two, chapter five-b
of this code;
(iii) 0.5 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the research challenge fund created under
section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income described in this section and in section ten-b of this
article shall be deposited into the capitol renovation and
improvement fund administered by the department of administration
pursuant to section six, article four, chapter five-a of this
code; and
(v) 0.0625 percent of the total amount of net terminal
income described in this section and in section ten-b of this
article shall be deposited into the 2004 capitol complex parking
garage fund administered by the department of administration
pursuant to section five-a, article four, chapter five-a of this
code;
(9) On and after the first day of July, two thousand five,
seven percent of net terminal income shall be deposited into the
workers' compensation debt reduction fund created in section
five, article two-d, chapter twenty-three of this code; and
(10) The remaining one percent of net terminal income shall
be deposited as follows:
(A) For the fiscal year beginning the first day of July, two
thousand three, the veterans memorial program shall receive one
percent of the net terminal income until sufficient moneys have
been received to complete the veterans memorial on the grounds of
the state capitol complex in Charleston, West Virginia. The
moneys shall be deposited in the state treasury in the division
of culture and history special fund created under section three, article one-i, chapter twenty-nine of this code: Provided, That
only after sufficient moneys have been deposited in the fund to
complete the veterans memorial and to pay in full the annual
bonded indebtedness on the veterans memorial, not more than
twenty thousand dollars of the one percent of net terminal income
provided for in this subdivision shall be deposited into a
special revenue fund in the state treasury, to be known as the
"John F. 'Jack' Bennett Fund". The moneys in this fund shall be
expended by the division of veterans affairs to provide for the
placement of markers for the graves of veterans in perpetual
cemeteries in this state. The division of veterans affairs shall
promulgate legislative rules pursuant to the provisions of
article three, chapter twenty-nine-a of this code specifying the
manner in which the funds are spent, determine the ability of the
surviving spouse to pay for the placement of the marker and
setting forth the standards to be used to determine the priority
in which the veterans grave markers will be placed in the event
that there are not sufficient funds to complete the placement of
veterans grave markers in any one year, or at all. Upon payment
in full of the bonded indebtedness on the veterans memorial, one
hundred thousand dollars of the one percent of net terminal
income provided for in this subdivision shall be deposited in the
special fund in the division of culture and history created under
section three, article one-i, chapter twenty-nine of this code and be expended by the division of culture and history to
establish a West Virginia veterans memorial archives within the
cultural center to serve as a repository for the documents and
records pertaining to the veterans memorial, to restore and
maintain the monuments and memorial on the capitol grounds:
Provided, however, That five hundred thousand dollars of the one
percent of net terminal income shall be deposited in the state
treasury in a special fund of the department of administration,
created under section five, article four, chapter five-a of this
code, to be used for construction and maintenance of a parking
garage on the state capitol complex; and the remainder of the one
percent of net terminal income shall be deposited in equal
amounts in the capitol dome and improvements fund created under
section two, article four, chapter five-a of this code and
cultural facilities and capitol resources matching grant program
fund created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day
of June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net
terminal income shall be deposited in the state treasury in a
special fund of the department of administration, created under
section five, article four, chapter five-a of this code, to be
used for construction and maintenance of a parking garage on the
state capitol complex; and
(ii) The remainder of the one percent of net terminal income
and all of the one percent of net terminal income described in
paragraph (B), subdivision (9), subsection (a), section ten-b of
this article twenty-two-a shall be distributed as follows: The
net terminal income shall be deposited in equal amounts into the
capitol dome and capitol improvements fund created under section
two, article four, chapter five-a of this code and the cultural
facilities and capitol resources matching grant program fund
created under section three, article one, chapter twenty-nine of
this code until a total of one million five hundred thousand
dollars is deposited into the cultural facilities and capitol
resources matching grant program fund; thereafter, the remainder
shall be deposited into the capitol dome and capitol improvements
fund.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from
its operation of video lottery machines, to be electronically
transferred by the commission on dates established by the
commission. Upon a licensed racetrack's failure to maintain this
balance, the commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is
made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax
delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the
commission.
(e) The commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income
generated by the licensee's video lottery terminals. Each
licensed racetrack shall report to the commission any
discrepancies between the commission's statement and each
terminal's mechanical and electronic meter readings. The
licensed racetrack is solely responsible for resolving income
discrepancies between actual money collected and the amount shown
on the accounting meters or on the commission's billing
statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the
commission the maintenance log which includes current mechanical
meter readings and the audit ticket which contains electronic
meter readings generated by the terminal's software. If the
meter readings and the commission's records cannot be reconciled,
final disposition of the matter shall be determined by the
commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the commission
notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal
to the total amount of cash inserted into each video lottery
terminal operated by a licensee, minus the total value of game
credits which are cleared from the video lottery terminal in
exchange for winning redemption tickets, and remit the amount as
generated from its terminals during the reporting period. The
remittance shall be sealed in a properly addressed and stamped
envelope and deposited in the United States mail no later than
noon on the day when the payment would otherwise be completed
through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive
additional reports of play transactions for their respective
video lottery terminals and other marketing information not
considered confidential by the commission. The commission may
charge a reasonable fee for the cost of producing and mailing any
report other than the billing statements.
(i) The commission has the right to examine all accounts,
bank accounts, financial statements and records in a licensed
racetrack's possession, under its control or in which it has an
interest and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
commission.
§29-22A-10b. Distribution of excess net terminal income.
(a) For all years beginning on or after the first day of
July, two thousand one, any amount of net terminal income
generated annually by a licensed racetrack in excess of the
amount of net terminal income generated by that licensed
racetrack during the fiscal year ending on the thirtieth day of
June, two thousand one, shall be divided as follows:
(1) The commission shall receive forty-one percent of net
terminal income, which the commission shall deposit in the state
excess lottery revenue fund created in section eighteen-a,
article twenty-two of this chapter;
(2) Until the first day of July, two thousand five, eight
percent of net terminal income at a licensed racetrack shall be
deposited in the special fund established by the licensee and
used for payment of regular purses in addition to other amounts
provided for in article twenty-three, chapter nineteen of this
code; on and after the first day of July, two thousand five, the
rate shall be four percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Any amount by which the total amount under this section
and subdivision (3), subsection (c), section ten of this article
is in excess of the two percent received during fiscal year one
thousand nine hundred ninety-nine by a county in which a
racetrack is located that has participated in the West Virginia
thoroughbred development fund since on or before the first day of
January, one thousand nine hundred ninety-nine, shall be divided
as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, the fifty percent to be divided
among the municipalities on a per capita basis as determined by
the most recent decennial United States census of population; and
(B) Any amount by which the total amount under this section
and subdivision (3), subsection (c), section ten of this article
is in excess of the two percent received during fiscal year one
thousand nine hundred ninety-nine by a county in which a
racetrack other than a racetrack described in paragraph (A) of
this proviso is located and where the racetrack has been located
in a municipality within the county since on or before the first
day of January, one thousand nine hundred ninety-nine, shall be
divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any county other than a county
described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the licensed racing
association by making a deposit into a special fund to be
established by the racing commission to be used for payment into
the pension plan for all employees of the licensed racing
association;
(5) The West Virginia thoroughbred development fund created
under section thirteen-b, article twenty-three, chapter nineteen
of this code and the West Virginia greyhound breeding development
fund created under section ten, article twenty-three, chapter
nineteen of this code shall receive an equal share of a total of
not less than one and one-half percent of the net terminal
income: Provided, That for any racetrack which does not have a
breeder's program supported by the thoroughbred development fund
or the greyhound breeding development fund, the one and one-half
percent provided for in this subdivision shall be deposited in
the special fund established by the licensee and used for payment
of regular purses, in addition to other amounts provided for in subdivision (2) of this subsection and article twenty-three,
chapter nineteen of this code;
(6) The West Virginia racing commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-two percent of net
terminal income;
(8) The tourism promotion fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income: Provided, That for each
fiscal year beginning after the thirtieth day of June, two
thousand four, this three percent of net terminal income shall be
distributed pursuant to the provisions of paragraph (B),
subdivision (8), subsection (c), section ten of this article;
(9) On and after the first day of July, two thousand five,
four percent of net terminal income shall be deposited into the
workers' compensation debt reduction fund created in section
five, article two-d, chapter twenty-three of this code:
Provided, That in any fiscal year when the amount of money
generated by this subdivision together with the total allocation
transferred by the operation of subdivision (9), subsection (c),
section ten of this article totals eleven million dollars, all
subsequent distributions under this subdivision (9) shall be deposited in the special fund established by the licensee, and
used for payment of regular purses in addition to other amounts
provided for in article twenty-three, chapter nineteen of this
code; and
(10) (A) One percent of the net terminal income shall be
deposited in equal amounts in the capitol dome and improvements
fund created under section two, article four, chapter five-a of
this code and cultural facilities and capitol resources matching
grant program fund created under section three, article one of
this chapter; and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this one percent of
net terminal income shall be distributed pursuant to the
provisions of subparagraph (ii), paragraph (B), subdivision (9),
subsection (c), section ten of this article.
(b) The commission may establish orderly and effective
procedures for the collection and distribution of funds under
this section in accordance with the provisions of this section
and section ten of this article.
CHAPTER 33. INSURANCE.
ARTICLE 1. DEFINITIONS.
§33-1-2. Insurer.
Insurer is every person engaged in the business of making contracts of insurance. Insurer includes private carrier as that
term is used in chapter twenty-three of this code.
§33-1-10. Kinds of insurance defined.
The following definitions of kinds of insurance are not
mutually exclusive and, if reasonably adaptable thereto, a
particular coverage may be included under one or more of such
definitions:
(a) Life insurance. -- Life insurance is insurance on human
lives including endowment benefits, additional benefits in the
event of death or dismemberment by accident or accidental means,
additional benefits for disability and annuities.
(b) Accident and sickness. -- Accident and sickness
insurance is insurance against bodily injury, disability or death
by accident or accidental means, or the expense thereof, or
against disability or expense resulting from sickness and
insurance relating thereto. Group credit accident and health
insurance may also include loss of income insurance which is
insurance against the failure of a debtor to pay his or her
monthly obligation due to involuntary loss of employment. For
the purposes of this definition, involuntary loss of employment
means the debtor loses employment income (salary or wages) as a
result of unemployment caused by individual or mass layoff,
general strikes, labor disputes, lockout or termination by
employer for other than willful or criminal misconduct. Any or all of the above-mentioned perils may be included in an insurance
policy, at the discretion of the policyholder.
(c) Fire. -- Fire insurance is insurance on real or
personal property of every kind and interest therein, against
loss or damage from any or all hazard or cause, and against loss
consequential upon such loss or damage, other than noncontractual
liability for any such loss or damage. Fire insurance shall also
include miscellaneous insurance as defined in paragraph (12),
subdivision (e) of this section.
(d) Marine insurance is insurance:
(1) Against any and all kinds of loss or damage to vessels,
craft, aircraft, cars, automobiles and vehicles of every kind, as
well as all goods, freight, cargoes, merchandise, effects,
disbursements, profits, moneys, bullion, precious stones,
securities, chooses in action, evidences of debt, valuable
papers, bottomry and respondentia interests and all other kinds
of property and interests therein, in respect to, appertaining to
or in connection with any and all risks or perils of navigation,
transit or transportation, including war risks, on or under any
seas or other waters, on land (above or below ground), or in the
air, or while being assembled, packed, crated, baled, compressed
or similarly prepared for shipment or while awaiting the same or
during any delays, storage, transshipment, or reshipment incident
thereto, including marine builders' risks and all personal property floater risks;
(2) Against any and all kinds of loss or damage to person
or to property in connection with or appertaining to a marine,
inland marine, transit or transportation insurance, including
liability for loss of or damage to either, arising out of or in
connection with the construction, repair, operation, maintenance
or use of the subject matter of such insurance (but not including
life insurance or surety bonds nor insurance against loss by
reason of bodily injury to the person arising out of the
ownership, maintenance or use of automobiles);
(3) Against any and all kinds of loss or damage to precious
stones, jewels, jewelry, gold, silver and other precious metals,
whether used in business or trade or otherwise and whether the
same be in course of transportation or otherwise;
(4) Against any and all kinds of loss or damage to bridges,
tunnels and other instrumentalities of transportation and
communication (excluding buildings, their furniture and
furnishings, fixed contents and supplies held in storage) unless
fire, windstorm, sprinkler leakage, hail, explosion, earthquake,
riot or civil commotion or any or all of them are the only
hazards to be covered;
(5) Against any and all kinds of loss or damage to piers,
wharves, docks and ships, excluding the risks of fire, windstorm,
sprinkler leakage, hail, explosion, earthquake, riot and civil commotion and each of them;
(6) Against any and all kinds of loss or damage to other
aids to navigation and transportation, including dry docks and
marine railways, dams and appurtenant facilities for control of
waterways; and
(7) Marine protection and indemnity insurance, which is
insurance against, or against legal liability of the insured for,
loss, damage or expense arising out of, or incident to, the
ownership, operation, chartering, maintenance, use, repair or
construction of any vessel, craft or instrumentality in use in
ocean or inland waterways, including liability of the insured for
personal injury, illness or death or for loss of or damage to the
property of another person.
(e) Casualty. -- Casualty insurance includes:
(1) Vehicle insurance, which is insurance against loss of
or damage to any land vehicle or aircraft or any draft or riding
animal or to property while contained therein or thereon or being
loaded therein or therefrom, from any hazard or cause, and
against any loss, liability or expense resulting from or incident
to ownership, maintenance or use of any such vehicle, aircraft or
animal; together with insurance against accidental death or
accidental injury to individuals, including the named insured,
while in, entering, alighting from, adjusting, repairing or
cranking, or caused by being struck by any vehicle, aircraft or draft or riding animal, if such insurance is issued as a part of
insurance on the vehicle, aircraft or draft or riding animal;
(2) Liability insurance, which is insurance against legal
liability for the death, injury or disability of any human being,
or for damage to property; and provisions for medical, hospital,
surgical, disability benefits to injured persons and funeral and
death benefits to dependents, beneficiaries or personal
representatives of persons killed, irrespective of legal
liability of the insured, when issued as an incidental coverage
with or supplemental to liability insurance;
(3) Burglary and theft insurance, which is insurance
against loss or damage by burglary, theft, larceny, robbery,
forgery, fraud, vandalism, malicious mischief, confiscation, or
wrongful conversion, disposal or concealment, or from any attempt
at any of the foregoing, including supplemental coverages for
medical, hospital, surgical and funeral benefits sustained by the
named insured or other person as a result of bodily injury during
the commission of a burglary, robbery or theft by another; also
insurance against loss of or damage to moneys, coins, bullion,
securities, notes, drafts, acceptances or any other valuable
papers and documents resulting from any cause;
(4) Personal property floater insurance, which is insurance
upon personal effects against loss or damage from any cause;
(5) Glass insurance, which is insurance against loss or damage to glass, including its lettering, ornamentation and
fittings;
(6) Boiler and machinery insurance, which is insurance
against any liability and loss or damage to property or interest
resulting from accidents to or explosion of boilers, pipes,
pressure containers, machinery or apparatus and to make
inspection of and issue certificates of inspection upon boilers,
machinery and apparatus of any kind, whether or not insured;
(7) Leakage and fire extinguishing equipment insurance,
which is insurance against loss or damage to any property or
interest caused by the breakage or leakage of sprinklers, hoses,
pumps and other fire extinguishing equipment or apparatus, water
mains, pipes and containers, or by water entering through leaks
or openings in buildings, and insurance against loss or damage to
such sprinklers, hoses, pumps and other fire extinguishing
equipment or apparatus;
(8) Credit insurance, which is insurance against loss or
damage resulting from failure of debtors to pay their obligations
to the insured. Credit insurance shall include loss of income
insurance which is insurance against the failure of a debtor to
pay his or her monthly obligation due to involuntary loss of
employment. For the purpose of this definition, involuntary loss
of employment means the debtor loses employment income (salary or
wages) as a result of unemployment caused by individual or mass layoff, general strikes, labor disputes, lockout or termination
by employer for other than willful or criminal misconduct; any or
all of the above-mentioned perils may be included in an insurance
policy, at the discretion of the policyholder;
(9) Malpractice insurance, which is insurance against legal
liability of the insured and against loss, damage or expense
incidental to a claim of such liability, and including medical,
hospital, surgical and funeral benefits to injured persons,
irrespective of legal liability of the insured arising out of the
death, injury or disablement of any person, or arising out of
damage to the economic interest of any person, as the result of
negligence in rendering expert, fiduciary or professional
service;
(10) Entertainment insurance, which is insurance
indemnifying the producer of any motion picture, television,
radio, theatrical, sport, spectacle, entertainment or similar
production, event or exhibition against loss from interruption,
postponement or cancellation thereof due to death, accidental
injury or sickness of performers, participants, directors or
other principals;
(11) Mine subsidence insurance as provided for in article
thirty of this chapter;
(12) Miscellaneous insurance, which is insurance against
any other kind of loss, damage or liability properly a subject of insurance and not within any other kind of insurance as defined
in this chapter, if such insurance is not disapproved by the
commissioner as being contrary to law or public policy; and
(13) Federal flood insurance, which is insurance provided
by the federal insurance administration or by private insurers
through the write your own program within the national flood
insurance program, instituted by the federal insurance
administration pursuant to the provision of 42 U.S.C. §4071, on
real or personal property of every kind and interest therein,
against loss or damage from flood or mudslide and against loss
consequential to such loss or damage, other than noncontractual
liability for any loss or damage.
(14) Workers' compensation insurance, which is insurance
providing all compensation and benefits required by chapter
twenty-three of this code.
(f) Surety. -- Surety insurance includes:
(1) Fidelity insurance, which is insurance guaranteeing the
fidelity of persons holding positions of public or private trust;
(2) Insurance guaranteeing the performance of contracts,
other than insurance policies, and guaranteeing and executing
bonds, undertakings and contracts of surety ship: Provided, That
surety insurance does not include the guaranteeing and executing
of bonds by professional bondsmen in criminal cases or by
individuals not in the business of becoming a surety for compensation upon bonds;
(3) Insurance indemnifying banks, bankers, brokers,
financial or moneyed corporations or associations against loss,
resulting from any cause, of bills of exchange, notes, bonds,
securities, evidences of debt, deeds, mortgages, warehouse
receipts or other valuable papers, documents, money, precious
metals and articles made therefrom, jewelry, watches, necklaces,
bracelets, gems, precious and semiprecious stones, including any
loss while they are being transported in armored motor vehicles
or by messenger, but not including any other risks of
transportation or navigation, and also insurance against loss or
damage to such an insured's premises or to his furnishings,
fixtures, equipment, safes and vaults therein, caused by
burglary, robbery, theft, vandalism or malicious mischief, or any
attempt to commit such crimes; and
(4) Title insurance, which is insurance of owners of
property or others having an interest therein, or liens or
encumbrances thereon, against loss by encumbrance, defective
title, invalidity or adverse claim to title.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-10. Rules and regulations.
(a) The commissioner is authorized to promulgate and adopt
rules relating to insurance as are necessary to discharge his or
her duties and exercise his or her powers and to effectuate the provisions of this chapter, protect and safeguard the interests
of policyholders and the public of this state.
(b) The commissioner is authorized to promulgate rules
necessary to discharge his or her duties relating to workers'
compensation insurance as set forth in chapter twenty-three of
this code, which shall be exempt from the provisions of chapter
twenty-nine-a, article three of this code, except that these
rules shall be filed with the Secretary of State's Office.
(c) Prior to assuming regulatory authority over workers'
compensation insurance pursuant to article two-c, chapter twenty-
three of this code, the commissioner shall review and revise all
applicable rules to reflect the assumption of this new regulatory
authority: Provided, That all such revisions shall be exempt from
the provisions of chapter twenty-nine-a, article three, except
that the amended rules shall be filed with the Secretary of
State's Office.
§33-2-20. Authority of insurance commissioner to regulate
workers compensation industry; authority of
insurance commissioner to administer chapter
twenty-three.
(a) Upon the termination of the Workers' Compensation
Commission pursuant to chapter twenty-three of this code, the
powers and duties heretofore imposed upon the Workers'
Compensation Commission as they relate to general administration of the provisions of chapter twenty-three of this code are hereby
transferred to and imposed upon the insurance commissioner.
(b) Unless otherwise specified in chapter twenty-three,
upon termination of the Workers' Compensation Commission, the
duties imposed upon the Workers' Compensation Commission as they
relate to the award and payment of disability and death benefits
and the review of claims in articles four and five, chapter
twenty-three of this code, will be imposed upon the employers
mutual insurance company established pursuant to article two-c,
chapter twenty-three of this code, a private carrier offering
workers' compensation insurance in this state and self-insured
employers. Whenever reference is made to the Workers'
Compensation Commissioner in those articles, the duty prescribed
shall apply to the employers mutual insurance company, a private
carrier or self-insured employer, as applicable.
(c) From the effective date of this enactment, the
insurance commissioner shall regulate all insurers licensed to
transact workers' compensation insurance in this state and all of
the provisions of this chapter shall apply to such insurers,
unless otherwise exempted by statute.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-2. Definitions.
As used in this article:
(1) "Benefits" mean money payments, goods, services or other thing of value paid in response to a claim filed with an
insurer based upon a policy of insurance;
(2) "Business of insurance" means the writing of insurance,
including the writing of workers' compensation insurance under
the provisions of chapter twenty-three of this code, self-
insurance by an employer or employer group for workers'
compensation risk including the risk of catastrophic injuries
under the provisions of chapter twenty-three of this code or the
reinsuring of risks by an insurer, including acts necessary or
incidental to writing insurance or reinsuring risks and the
activities of persons who act as or are officers, directors,
agents or employees of insurers, or who are other persons
authorized to act on their behalf;
(3) "Claim" means an application or request for payment or
benefits provided under the terms of a policy of insurance;
(4) "Commissioner" means the insurance commissioner of
West Virginia or his or her designee;
(5) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified
in, this state or another state, to provide health care or
professional health care services, including, but not limited to,
a physician, osteopathic physician, hospital, dentist, registered
or licensed practical nurse, optometrist, pharmacist, podiatrist,
chiropractor, physical therapist or psychologist;
(6) "Insurance" means a contract or arrangement in which a
person undertakes to:
(A) Pay or indemnify another person as to loss from certain
contingencies called "risks", including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit
to another person in connection with ascertainable risk
contingencies;
(C) Pay an annuity to another person;
(D) Act as surety; or
(E) Self-insurance for workers' compensation risk including
the risk of catastrophic injuries under the provisions of chapter
twenty-three of this code.
(7) "Insurer" means a person entering into arrangements or
contracts of insurance or reinsurance. Insurer includes, but is
not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers' mutual fire
companies, fraternal benefit society, reciprocal or
interinsurance exchange, nonprofit medical care corporation,
nonprofit health care corporation, nonprofit hospital service
association, nonprofit dental care corporation, health
maintenance organization, captive insurance company, risk
retention group or other insurer, regardless of the type of
coverage written, including the writing of workers' compensation
insurance or self insurance under the provisions of chapter twenty-three of this code, benefits provided or guarantees made
by each. A person is an insurer regardless of whether the person
is acting in violation of laws requiring a certificate of
authority or regardless of whether the person denies being an
insurer;
(8) "Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock
company, a trust, trustees, an unincorporated organization, or
any similar business entity or any combination of the foregoing.
"Person" also includes hospital service corporations, medical
service corporations and dental service corporations as defined
in article twenty-four of this chapter, health care corporations
as defined in article twenty-five of this chapter, or a health
maintenance organization organized pursuant to article
twenty-five-a of this chapter;
(9) "Policy" means an individual or group policy, group
certificate, contract or arrangement of insurance or reinsurance,
coverage by a self-insured employer or employer group for its
workers' compensation risk including its risk of catastrophic
injuries or reinsurance, affecting the rights of a resident of
this state or bearing a reasonable relation to this state,
regardless of whether delivered or issued for delivery in this
state;
(10) "Reinsurance" means a contract, binder of coverage (including placement slip) or arrangement under which an insurer
procures insurance for itself in another insurer as to all or
part of an insurance risk of the originating insurer;
(11) "Statement" means any written or oral representation
made to any person, insurer or authorized agency. A statement
includes, but is not limited to, any oral report or
representation; any insurance application, policy, notice or
statement; any proof of loss, bill of lading, receipt for
payment, invoice, account, estimate of property damages, or other
evidence of loss, injury or expense; any bill for services,
diagnosis, prescription, hospital or doctor record, X-ray, test
result or other evidence of treatment, services or expense; and
any application, report, actuarial study, rate request or other
document submitted or required to be submitted to any authorized
agency. A statement also includes any written or oral
representation recorded by electronic or other media; and
(12) "Unit" means the insurance fraud unit established
pursuant to the provisions of this article acting collectively or
by its duly authorized representatives.
ARTICLE 41. PRIVILEGES AND IMMUNITY.
§33-41-8. Creation of insurance fraud unit; purpose; duties;
personnel qualifications.
(a) There is established the West Virginia insurance fraud
unit within the office of the insurance commissioner of West Virginia. The commissioner may employ full-time supervisory,
legal and investigative personnel for the unit, who shall be
qualified by training and experience in the areas of detection,
investigation or prosecution of fraud within and against the
insurance industry to perform the duties of their positions. The
director of the fraud unit shall be a full-time position and
shall be appointed by the commissioner and serve at his or her
will and pleasure. The commissioner shall provide office space,
equipment, supplies, clerical and other staff that is necessary
for the unit to carry out its duties and responsibilities under
this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the
unit has cause to believe violations of the provisions of this
chapter, the provisions of chapter twenty-three, the provisions
of article three, chapter sixty-one of this code relating to the
business of insurance have been or are being committed;
(2) Review reports or complaints of alleged fraud related
to the business of insurance activities from federal, state and
local law-enforcement and regulatory agencies, persons engaged in
the business of insurance and the general public to determine
whether the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent
activity related to the business of insurance and undertake independent studies to determine the extent of fraudulent
insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of
this article and to employ legal counsel, investigators, auditors
and clerical support personnel and other personnel as the
commissioner determines necessary from time to time to accomplish
the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts
in criminal matters;
(4) Share records and evidence with federal, state or local
law-enforcement or regulatory agencies, and enter into
interagency agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the
information the insurance fraud unit seeks to obtain is located
outside this state, the person from whom the information is
sought may make the information available to the insurance fraud
unit to examine at the place where the information is located.
The insurance fraud unit may designate representatives, including
officials of the state in which the matter is located, to inspect
the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from officials of other states;
(7) The fraud unit may initiate investigations and
participate in the development of, and if necessary, the
prosecution of any health care provider, including a provider of
rehabilitation services, suspected of fraudulent activity related
to the business of insurance;
(8) Specific personnel, designated by the commissioner,
shall be permitted to operate vehicles owned or leased for the
state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the commissioner may
carry firearms in the course of their official duties after
meeting specialized qualifications established by the governor's
committee on crime, delinquency and correction, which shall
include the successful completion of handgun training provided to
law-enforcement officers by the West Virginia state police:
Provided, That nothing in this subsection shall be construed to
include any person designated by the commissioner as a
law-enforcement officer as that term is defined by the provisions
of section one, article twenty-nine, chapter thirty of this code;
and
(10) The insurance fraud unit shall not be subject to the
provisions of article nine-a, chapter six of this code and the
investigations conducted by the insurance fraud unit and the materials placed in the files of the unit as a result of any such
investigation are exempt from public disclosure under the
provisions of chapter twenty-nine-b of this code.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent
to defraud submits a materially false statement in support of a
claim for insurance benefits or payment pursuant to a policy of
insurance or who conspires to do so is guilty of a crime and is
subject to the penalties set forth in the provisions of this
section.
(b) Any person who commits a violation of the provisions of
subsection (a) of this section where the benefit sought exceeds
one thousand dollars in value is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility
for not less than one nor more than ten years, fined not more
than ten thousand dollars, or both or in the discretion of the
circuit court confined in a county or regional jail for not more
than one year and so fined.
(c) Any person who commits a violation of the provisions of
subsection (a) of this section where the benefit sought is one
thousand dollars or less in value, is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in a county or
regional jail for not more than one year, fined not more than two
thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is
subject to the restitution provisions of article eleven-a,
chapter sixty-one of this code.
(e) In addition to the foregoing provisions, the offenses
enumerated in sections twenty-four-e through twenty-four-h,
inclusive, article three, chapter sixty-one of this code are
applicable to matters concerning workers' compensation insurance.
(f) The circuit court may award to the unit or other
law-enforcement agency investigating a violation of this section
or other criminal offense related to the business of insurance
its cost of investigation.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-24e. Omission to subscribe for workers' compensation
insurance; failure to file a premium tax
report or pay premium taxes; false testimony
or statements; failure to file reports;
penalties; asset forfeiture; venue.
(1) Failure to subscribe:
(A) Responsible person. Any person who individually or as
owner, partner, president, other officer, or manager of a sole
proprietorship, firm, partnership, company, corporation or
association, who, as a person who is responsible for and who is
required by specific assignment, duty or legal duty, which is either expressed or inherent in laws which require the employer's
principals to be informed and to know the facts and laws
affecting the business organization and to make internal policy
and decisions which ensure that the individual and organization
comply with the general laws and provisions of chapter twenty-
three of this code, knowingly and willfully fails to subscribe
for and maintain workers' compensation insurance shall be guilty
of a felony and, upon conviction, shall be imprisoned in a state
correctional facility not less than one nor more than ten years,
or in the discretion of the court, be confined in a county or
regional jail not more than one year and shall be fined not more
than two thousand five hundred dollars.
(B) Any corporation, association or partnership who, as an
employer as defined in chapter twenty-three of this code,
knowingly and willfully fails to subscribe for and maintain
workers' compensation insurance shall be guilty of a felony and,
upon conviction, shall be fined not less than two thousand five
hundred dollars nor more than ten thousand dollars.
(2) Failure to pay:
(A) Any person who individually or as owner, partner,
president, other officer or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person as defined in this section, knowingly and
willfully fails to make premium tax payments to the workers' compensation fund or premiums to a private carrier as required by
chapter twenty-three of this code, shall be guilty of the larceny
of the premium owed and, if the amount is one thousand dollars or
more, such person shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility not less than one nor more than ten years or, in the
discretion of the court, be confined in a county or regional jail
not more than one year and shall be fined not more than two
thousand five hundred dollars. If the amount is less than one
thousand dollars, such person shall be guilty of a misdemeanor
and, upon conviction thereof, shall be confined in a county or
regional jail for a term not to exceed one year or fined an
amount not to exceed two thousand five hundred dollars, or both,
in the discretion of the court.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to make premium tax payments
to the workers' compensation fund or premiums to a private
carrier as required by chapter twenty-three of this code shall be
guilty of the larceny of the premium owed, and, if the amount is
one thousand dollars or more, such corporation, association,
company or partnership shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than two thousand
five hundred dollars nor more than ten thousand dollars. If the amount is less than one thousand dollars, such corporation,
association, company or partnership shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed two thousand five hundred dollars.
(C) Any person who individually or as owner, partner,
president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person, as defined in this section, knowingly and
willfully and with fraudulent intent sells, transfers or
otherwise disposes of substantially all of the employer's assets
for the purpose of evading the payment of workers' compensation
premium taxes to the workers' compensation fund, or premiums to
a private carrier as required by chapter twenty-three of this
code, shall be guilty of the larceny of the premium owed and, if
the amount is one thousand dollars or more, such person shall be
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than one nor
more than ten years or, in the discretion of the court, be
confined in a county or regional jail not more than one year and
shall be fined not more than two thousand five hundred dollars.
If the amount is less than one thousand dollars, such person
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for a term not to
exceed one year or fined an amount not to exceed two thousand five hundred dollars, or both, in the discretion of the court.
(D) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully and with fraudulent intent sells,
transfers or otherwise disposes of substantially all of the
employer's assets for the purpose of evading the payment of
workers' compensation premium taxes to the workers' compensation
fund, or premiums to a private carrier as required by chapter
twenty-three of this code shall be guilty of the larceny of the
premium owed, and, if the amount is one thousand dollars or more,
such corporation, association, company or partnership shall be
guilty of a felony and, upon conviction thereof, shall be fined
not less than two thousand five hundred dollars nor more than ten
thousand dollars. If the amount is less than one thousand
dollars, such corporation, association, company or partnership
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined an amount not to exceed two thousand five hundred
dollars.
(3) Failure to file premium tax reports:
(A) Any person who individually or as owner, partner,
president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person as defined in this section, knowingly and
willfully fails to file a premium tax report with the workers' compensation fund or a premium report to a private carrier as
required by chapter twenty-three of this code, shall be guilty of
a felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility not less than one nor more than ten
years, or in the discretion of the court, be confined in a county
or regional jail for a term not to exceed one year and shall be
fined not more than two thousand five hundred dollars.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to file a premium tax report
with the workers' compensation fund or a premium report to a
private carrier as required by chapter twenty-three of this code,
shall be guilty of a felony and, upon conviction thereof, shall
be fined not less than two thousand five hundred dollars nor more
than ten thousand dollars.
(4) Failure to file other reports:
(A) Any person, individually or as owner, partner,
president or other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association who, as a
responsible person as defined in this section, knowingly and
willfully fails to file any report, other than a premium tax
report, required by such chapter shall be guilty of a misdemeanor
and, upon conviction thereof, shall be confined in a county or
regional jail for a term not to exceed one year or fined an amount not to exceed two thousand five hundred dollars, or both,
in the discretion of the court.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to file any report, other
than a premium tax report, with the workers' compensation fund or
insurance commissioner as required by chapter twenty-three of
this code, shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed two thousand five
hundred dollars.
(5) False testimony or statements:
Any person, individually or as owner, partner, president,
other officer, or manager of a sole proprietorship, firm,
partnership, company, corporation or association who, as a
responsible person as defined in this section, knowingly and
willfully makes a false report or statement under oath,
affidavit, certification or by any other means respecting any
information required to be provided under chapter twenty-three of
this code shall be guilty of a felony and, upon conviction
thereof, shall be confined in a state correctional facility for
a definite term of imprisonment which is not less than one year
nor more than three years or fined not less than one thousand
dollars nor more than ten thousand dollars, or both, in the
discretion of the court. In addition to any other penalty imposed, the court shall order any defendant convicted under this
section to make full restitution of all moneys paid by or due to
the workers' compensation fund, insurance commissioner or
private carrier as the result of a violation of this section.
The restitution ordered shall constitute a judgment against the
defendant and in favor of the state of West Virginia workers'
compensation commission, insurance commissioner or private
carrier.
(6) Asset forfeiture:
(A) The court, in imposing sentence on a person or entity
convicted of an offense under this section, shall order the
person or entity to forfeit property, real or personal, that
constitutes or is derived, directly or indirectly, from gross
proceeds traceable to the commission, insurance commissioner or
private carrier of the offense. Any person or entity convicted
under this section shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A) of this subsection, the
term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain,
inventory, safeguard, maintain, advertise, sell or dispose of
property under seizure, detention, forfeiture or of any other
necessary expenses incident to the seizure, detention,
forfeiture, or disposal of such property, including payment for:
(I) Contract services;
(II) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary
to dispose of such properties in an effort to maximize the return
from such properties; and
(III) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph;
(ii) The compromise and payment of valid liens and
mortgages against property that has been forfeited, subject to
the discretion of the workers' compensation fund to determine the
validity of any such lien or mortgage and the amount of payment
to be made, and the employment of attorneys and other personnel
skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on
forfeited real property that accrued between the date of the
violation giving rise to the forfeiture and the date of the
forfeiture order.
(7) Venue:
Venue for prosecution of any violation of this section
shall be either the county in which the defendant's principal
business operations are located or in Kanawha County where the
workers' compensation fund is located.
§61-3-24f. Wrongfully seeking workers' compensation; false
testimony or statements; penalties; venue.
(1) Any person who shall knowingly and with fraudulent
intent secure or attempt to secure compensation from the workers'
compensation fund, a private carrier or from a self-insured
employer:
(A) That is larger in amount than that to which he or she
is entitled; or
(B) That is longer in term than that to which he or she is
entitled; or
(C) To which he or she is not entitled, shall be guilty of
a larceny and, if the amount is one thousand dollars or more,
such person shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility not
less than one nor more than ten years or, in the discretion of
the court, be confined in a county or regional jail not more than
one year and shall be fined not more than two thousand five
hundred dollars. If the amount is less than one thousand
dollars, such person shall be guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional
jail for a term not to exceed one year or fined an amount not to
exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(2) Any person who shall knowingly and willfully make a false report or statement under oath, affidavit, certification or
by any other means respecting any information required to be
provided under chapter twenty-three of this code shall be guilty
of a felony and, upon conviction thereof, shall be confined in a
state correctional facility for a definite term of imprisonment
which is not less than one year nor more than three years or
fined not less than one thousand dollars nor more than ten
thousand dollars, or both, in the discretion of the court.
(3) In addition to any other penalty imposed, the court
shall order any person convicted under this section to make full
restitution of all moneys paid by the workers' compensation fund,
private carrier or self-insured employer as the result of a
violation of this section. The restitution ordered shall
constitute a judgment against the defendant and in favor of the
state of West Virginia workers' compensation commission, private
carrier or self-insured employer.
(4) If the person so convicted is receiving compensation
from such fund, private carrier or employer, he or she shall,
from and after such conviction, cease to receive such
compensation as a result of any alleged injury or disease.
Venue for prosecution of any violation of this section
shall either be the county in which the claimant resides, the
county in which the claimant is employed or working, or in
Kanawha County where the workers' compensation fund is located.
§61-3-24g. Workers' compensation health care offenses; fraud;
theft or embezzlement; false statements;
penalties; notice; prohibition against
providing future services; penalties; asset
forfeiture; venue.
(1) Any person who knowingly and willfully executes, or
attempts to execute, a scheme or artifice:
(A) To defraud the workers' compensation fund, private
carrier or a self-insured employer in connection with the
delivery of or payment for workers' compensation health care
benefits, items or services;
(B) To obtain, by means of false or fraudulent pretenses,
representations, or promises any of the money or property owned
by or under the custody or control of the workers' compensation
fund, private carrier or a self-insured employer in connection
with the delivery of or payment for workers' compensation health
care benefits, items or services; or
(C) To make any charge or charges against any injured
employee or any other person, firm or corporation which would
result in a total charge for the treatment or service rendered in
excess of the maximum amount set forth in the workers'
compensation commission's schedule of maximum reasonable amounts
to be paid for the treatment or services issued pursuant to
subsection (a), section three article four, chapter twenty-three of this code is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less
than one year nor more than ten years or, in the discretion of
the court, be confined in a county or regional jail not more than
one year and shall be fined not more than two thousand five
hundred dollars.
(2) Any person who, in any matter involving a health care
program related to workers' compensation insurance, knowingly and
willfully:
(A) Falsifies, conceals or covers up by any trick, scheme or
device a material fact; or
(B) Makes any materially false, fictitious or fraudulent
statement or representation, or makes or uses any materially
false writing or document knowing the same to contain any
materially false, fictitious or fraudulent statement or entry, is
guilty of a felony and, upon conviction thereof, shall be
confined in a state correctional facility for a definite term of
imprisonment which is not less than one year nor more than three
years or fined not less than one thousand dollars nor more than
ten thousand dollars, or both, in the discretion of the court.
(3) Any person who willfully embezzles, steals or otherwise
unlawfully converts to the use of any person other than the
rightful owner, or intentionally misapplies any of the moneys,
funds, securities, premiums, credits, property or other assets of a health care program related to the provision of workers'
compensation insurance, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than one year nor more than ten years or
fined not less than ten thousand dollars, or both, in the
discretion of the court.
(4) Any health care provider who fails, in violation of
subsection (5) of this section to post a notice, in the form
required by the workers' compensation commission, in the
provider's public waiting area that the provider cannot accept
any patient whose treatment or other services or supplies would
ordinarily be paid for from the workers' compensation fund,
private carrier or by a self-insured employer unless the patient
consents, in writing, prior to the provision of the treatment or
other services or supplies, to make payment for that treatment or
other services or supplies himself or herself, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined one
thousand dollars.
(5) Any person convicted under the provisions of this
section shall, after such conviction, be barred from providing
future services or supplies to injured employees for the purposes
of workers' compensation and shall cease to receive payment for
services or supplies. In addition to any other penalty imposed,
the court shall order any defendant convicted under this section to make full restitution of all moneys paid by or due to the
workers' compensation fund, private carrier or self-insured
employer as the result of a violation of this section. The
restitution ordered shall constitute a judgment against the
defendant and in favor of the state of West Virginia workers'
compensation commission, insurance commissioner, private carrier
or self-insured employer.
(6) (A) The court, in imposing sentence on a person
convicted of an offense under this section, shall order the
person to forfeit property, real or personal, that constitutes or
is derived, directly or indirectly, from gross proceeds traceable
to the commission of the offense. Any person convicted under
this section shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A) of this subsection, the
term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain,
inventory, safeguard, maintain, advertise, sell or dispose of
property under seizure, detention or forfeiture, or of any other
necessary expenses incident to the seizure, detention, forfeiture
or disposal of the property, including payment for:
(I) Contract services;
(II) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary
to dispose of the properties in an effort to maximize the return from the properties; and
(III) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph;
(ii) The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the
discretion of the workers' compensation fund to determine the
validity of the lien or mortgage and the amount of payment to be
made, and the employment of attorneys and other personnel skilled
in state real estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on
forfeited real property that accrued between the date of the
violation giving rise to the forfeiture and the date of the
forfeiture order.
(7) Venue for prosecution of any violation of this section
shall be either the county in which the defendant's principal
business operations are located or in Kanawha County where the
workers' compensation fund is located.
§61-3-24h. Providing false documentation to workers'
compensation to the insurance commissioner
or a private carrier of workers' compensation
insurance; altering documents or certificates from workers' compensation; penalties; venue.
(1) Any person, firm, partnership, company, corporation
association or medical provider who submits false documentation
to workers' compensation, the insurance commissioner or a
private carrier of workers' compensation insurance with the
intent to defraud the workers' compensation commission, the
insurance commissioner or a private carrier of workers'
compensation insurance shall be guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a term not to
exceed one year or fined an amount not to exceed two thousand
five hundred dollars, or both, in the discretion of the court.
(2) Any person, firm, partnership, company, corporation,
association or medical provider who alters, falsifies, defaces,
changes or modifies any certificate or other document which would
indicate good standing with the workers' compensation commission,
insurance commissioner or private carrier concerning workers'
compensation insurance coverage or endorsement by workers'
compensation for medical services shall be guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
jail for a term not to exceed one year or fined an amount not to
exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(3) Venue for prosecution of any violation of this section
shall be either the county in which the claimant resides, a defendant's principal business operations are located, or in
Kanawha County where the workers' compensation fund is located.