__________*__________
Saturday, June 14, 2003
The House of Delegates met at 8:30 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, June 13, 2003, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Resolutions Introduced
Mr. Speaker, Mr. Kiss, and Delegate Trump [By Request of the Executive] offered the
following resolution, which was read by its title as follows:
H. C. R. 201 - "Providing for the issuance of not to exceed three billion nine hundred
million dollars of bonds pursuant to article eight, chapter twelve of the code of West Virginia."
Resolved by the Legislature of West Virginia:
That pension bonds in the principal amount not to exceed three billion nine hundred million
dollars are authorized to be sold by the Governor during the time period set forth in section four,
article eight, chapter twelve of the code of West Virginia; and, be it
Further Resolved, That the terms of the bonds shall be determined by the Governor and as
set forth in the trust indenture approved by the Governor; and, be it
Further Resolved, That the Governor shall sell the bonds herein mentioned at such time or times, in such amounts, not exceeding the aggregate principal amount described above, at such
prices during the fiscal year as he may determine necessary to provide funds for the purposes set
forth below: Provided, That before the sale of any such bonds the Governor shall deliver the written
findings required by section five, article eight, chapter twelve of the code of West Virginia; and, be
it
Further Resolved, That the maximum costs associated with the issuance of the bonds,
excluding fees for bond insurance, credit enhancement and liquidity facilities, plus underwriter's
discount and any other costs associated with the issuance shall not exceed, in the aggregate, the sum
of one percent (1%) of the aggregate principal amount of bonds issued, the payment of such costs
to be subject to final approval by the review committee established pursuant to section four, article
eight, chapter twelve of the code of West Virginia; and, be it
Further Resolved, That the net proceeds of sales of all bonds herein authorized shall be paid
to the Consolidated Public Retirement Board pursuant to section seven, article eight, chapter twelve
of the code of West Virginia and used for the purposes set forth in article eight of said chapter; and,
be it,
Further Resolved, That this resolution shall supercede in all respects Senate Concurrent
Resolution 35 adopted during the two thousand three regular session of the Legislature.
At the request of Delegate Staton, and by unanimous consent, reference of the resolution (H.
C. R. 201) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were taken (Roll
No. 783), and there were--yeas 82, nays 7, absent and not voting 11, with the nays and absent and
not voting being as follows:
Nays: Armstead, Blair, Border, Carmichael, Louisos, Spencer and Walters.
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton, Thompson, R. M. and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the resolution (H. C. R. 201) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
proceeded to the Twelfth Order of Business for the purpose of considering bills on Second Reading.
House Calendar
Second Reading
S. B. 2004, Continuing equal pay commission; on second reading, coming up in regular
order, was read a second time and ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 784), and there were--yeas 89, nays
none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton, Thompson, R. M. and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 785),
and there were--yeas 89, nays none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton, Thompson, R. M. and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 2004) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 786), and there were--yeas 89, nays
none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton, Thompson, R. M. and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 2004) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 2007, Amending state excess lottery revenue fund; on second reading, coming up in
regular order, was, at the request of Delegate Staton, and by unanimous consent, temporarily
postponed.
S. B. 2009, Continuing funding of Hatfield-McCoy regional recreation authority projects;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 787), and there were--yeas 90, nays
none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
Delegate Browning requested to be excused from voting on the passage of S. B. 2009 under
the provisions of House Rule 49.
The Speaker stated that Delegate Browning had no apparent direct personal or pecuniary
interest in the bill and, that he served merely as a member of the board, and that he would be
required to vote thereon.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 788),
and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being
as follows:
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 2009) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 789), and there were--yeas 90, nays
none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Ferrell, Frederick, Hatfield, Iaquinta, Perdue,
Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 2009) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 2010, Relating to economic opportunity districts; on second reading, coming up in
regular order, was read a second time.
On motion of Delegate Staton, the bill was amended on page two, by striking out everything
following the enacting clause and in inserting lieu thereof the following:
That section two, article two, chapter five-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; that sections two, three, six, seven,
eight, nine, ten, twelve, fourteen, fifteen, seventeen and nineteen, article twenty-two, chapter seven
of said code be amended and reenacted; that sections two, three, six, seven, eight, nine, ten, eleven,
twelve, fourteen, fifteen, sixteen, seventeen and nineteen, article thirty-eight, chapter eight of said
code be amended and reenacted; that section eleven-a, article ten, chapter eleven of said code be
amended and reenacted; that section thirty-two, article fifteen-b of said chapter be amended and
reenacted; and that said article fifteen-b be further amended by adding thereto four new sections,
designated sections thirty-three, thirty-four, thirty-five and thirty-six, all to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-2. Council for community and economic development; members, appointment and
expenses; meetings; appointment and compensation of director.
(a) The council for community and economic development, within the West Virginia
development office, is a body corporate and politic, constituting a public corporation and
government instrumentality. Membership on the council consists of:
(1) No less than nine nor more than eleven members to be appointed by the governor, with
the advice and consent of the Senate, representing community or regional interests, including
economic development, commerce, banking, manufacturing, the utility industry, the mining
industry, the telecommunications/data processing industry, small business, labor, tourism or
agriculture: Provided, That one member appointed pursuant to this subsection shall be a member
of a regional planning and development council. Of the members representing community or
regional interests, there shall be at least three members from each congressional district of the state
and they shall be appointed in such a manner as to provide a broad geographical distribution of
members of the council;
(2) Two Four at-large members to be appointed by the governor with the advice and consent
of the Senate;
(3) One member to be appointed by the governor from a list of two persons recommended
by the speaker of the House of Delegates: Provided, That on and after the effective date of the
amendment and reenactment of this section in the year two thousand three, this subdivision shall be
of no force or effect and the term of the member previously appointed pursuant to this subdivision
shall expire;
(4) One member to be appointed by the governor from a list of two persons recommended
by the president of the Senate: Provided, That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this subdivision shall be of no force or
effect and the term of the member previously appointed pursuant to this subdivision shall expire;
(5)The president of the West Virginia economic development council; and
(6) The chair, or his or her designee, of the tourism commission created pursuant to the
provisions of section eight of this article.
In addition, the president of the Senate and the speaker of the House of Delegates, or his or
her designee, shall serve as ex officio nonvoting members.
(b) The governor shall appoint the appointed members of the council to four-year terms.
Any member whose term has expired shall serve until his or her successor has been duly appointed
and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any
Except as otherwise provided in this section, any member is eligible for reappointment. In cases of
any vacancy in the office of a member, the vacancy shall be filled by the governor in the same
manner as the original appointment.
(c) Members of the council are not entitled to compensation for services performed as
members, but are entitled to reimbursement for all reasonable and necessary expenses actually
incurred in the performance of their duties. A majority of the voting members constitute a quorum
for the purpose of conducting business. The council shall elect its chair for a term to run concurrent
with the term of office of the member elected as chair. The chair is eligible for successive terms in
that position.
(d) The council shall employ an executive director of the West Virginia development office
who is qualified for the position by reason of his or her extensive education and experience in the
field of professional economic development. The executive director shall serve at the will and
pleasure of the council. The salary of the director shall be fixed by the council. The director shall
have overall management responsibility and administrative control and supervision within the West
Virginia development office. It is the intention of the Legislature that the director provide
professional and technical expertise in the field of professional economic and tourism development
in order to support the policy-making functions of the council, but that the director not be a public
officer, agent, servant or contractor within the meaning of section thirty-eight, article VI of the constitution of West Virginia and not be a statutory officer within the meaning of section one, article
two, chapter five-f of this code. Subject to the provisions of the contract provided for in section four
of this article, the director may hire and fire economic development representatives employed
pursuant to the provisions of section five of this article.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-2. Legislative findings and declaration of purpose.
The Legislature finds that many significant business opportunities initiated within the
counties of this state face financial and other economic obstacles. This adversely affects the
economic and general well-being of the citizens of those counties.
The Legislature further finds that there are undeveloped, underdeveloped or seriously
deteriorated development areas within certain counties of this state which are uniquely situated
relative to large populations in other states or to other specific economic recreational or cultural
activities or facilities which will attract large populations from this state and other states who would
be likely to make substantial retail purchases of tangible personal property and services offered in
modern and modernized structures and facilities constructed, supplemented, reconstructed or
repaired in such undeveloped, underdeveloped or seriously deteriorated areas within certain counties
of this state. The Legislature further finds that economic inducements provided by the state are
necessary and appropriate to enable the construction, supplementation, reconstruction and repair of
such modern and modernized structures and facilities in such undeveloped, underdeveloped or
seriously deteriorated areas within certain counties of this state. Establishment of economic
opportunity development districts within counties of the state, in accordance with the purpose and
powers set forth in this article, will serve a public purpose and promote the health, safety, prosperity, security and general welfare of all citizens in the state. It will also promote the establishment and
vitality of significant business opportunities within counties while serving as an effective means for
developing or restoring and promoting retail and other business activity within the economic
opportunity development districts created herein. This will be of special benefit to the tax base of
the counties within which any economic development district is created under pursuant to this article
and will specifically generate substantial incremental increases in excise taxes on sales within such
economic opportunity development districts of tangible personal property and services and thereby
and otherwise will stimulate economic growth and job creation.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic development established in
section two, article two, chapter five-b of this code;
(2) "County commission" means the governing body of a county of this state;
(3) "Development expenditures" means payments for governmental functions, programs,
activities, facility construction, improvements and other goods and services which a district board
is authorized to perform or provide under section five of this article;
(4) "District" means an economic opportunity development district created pursuant to this
article;
(5) "District board" means a district board created pursuant to section ten of this article; and
(6) "Eligible property" means any taxable or exempt real property located in a district
established pursuant to this article. and
(7) "Gross annual district tax revenue amount" means the total amount of consumers sales
and service tax actually remitted to the tax commissioner by retailers maintaining places of business within the district with respect to sales made and services rendered by retailers from a location
within the district for the twelve full calendar months immediately preceding the filing of an
application pursuant to section seven of this article
§7-22-6. Notice; hearing.
(a) General. -- A county commission desiring to create an economic opportunity
development district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall be published as a Class I-0 legal
advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place of the hearing, the notice must also
state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The proposed geographic boundaries of the property proposed to be included in the
district; and
(5) The proposed method of financing any costs involved, including the base and rate of
special district excise tax that may be imposed upon sales of tangible personal property and taxable
services from business locations situated within the proposed district.
(c) Opportunity to be heard. -- At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owner of real property situated in the
proposed district and any residents of the county.
(d) Application to council. -- If the county commission, following the public hearing,
determines it advisable and in the public interest to establish an economic opportunity development district, it shall apply to the council for community and economic development for approval of the
economic opportunity development district project pursuant to the procedures provided in section
seven of this article.
§7-22-7. Application to council for community and economic development for approval of an
economic opportunity development district project.
(a) General. -- The council for community and economic development shall receive and act
on applications filed with it by county commissions pursuant to section six of this article. Each
application must include:
(1) A true copy of the notice described in section six of this article;
(2) The total cost of the project;
_____(3) A reasonable estimate of the number of months needed to complete the project;
_____(4) A general description of the capital improvements, additional or extended services and
other proposed development expenditures to be made in the district as part of the project;
_____(3) (5) A description of the proposed method of financing the development expenditures,
together with a description of the reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the optimum economic viability of
the district following its inception: Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital market considerations;
(4) (6) A description of the sources and anticipated amounts of all financing, including, but
not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property taxes and fees;
(5) (7) A description of the financial contribution of the county commission to the funding
of development expenditures;
(6) (8) Identification of any businesses that the county commission expects to relocate their
business locations from the district to another place in the state in connection with the establishment
of the district or from another place in this state to the district: Provided, That for purposes of this
article, any entities shall be designated "relocated entities";
(7) (9) Identification of any businesses currently conducting business in the proposed
economic opportunity development district that the county commission expects to continue doing
business there after the district is created;
(8) (10) A good faith estimate of the aggregate amount of consumers sales and service tax
that was actually remitted to the tax commissioner by all business locations identified as provided
in subdivisions (6) (8) and (7) (9) of this subsection with respect to their sales made and services
rendered from their then current business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding the date of the application: Provided,
That for purposes of this article, the aggregate amount is designated as "the base tax revenue
amount"; a
(11) A good faith estimate of the gross annual district tax revenue amount; and the
(12) The proposed application of any surplus from all funding sources to further the
objectives of this article; Provided, however, That the amount of all development expenditures
proposed to be made in the first twenty-four months following the creation of the district shall be
not less than fifty million dollars
(13) The tax commissioner's certification of: (i) The amount of consumers sales and service
taxes collected from businesses located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the application will be submitted to
the council; (ii) the estimated amount of economic opportunity district excise tax that will be collected during the first twelve months after the month in which the tax commissioner would first
begin to collect that tax; and (iii) the estimated amount of economic opportunity district excise tax
that will be collected during the first thirty-six months after the month in which the tax
commissioner would first begin to collect that tax; and
(14) Any additional information the council may require.
_____(b) Review of applications. -- The council shall review all project proposals for conformance
to statutory and regulatory requirements, the reasonableness of the project's budget and timetable
for completion, and the following criteria:
_____(1) The quality of the proposed project and how it addresses economic problems in the area
in which the project will be located;
_____(2) The merits of the project determined by a cost benefit analysis that incorporates all costs
and benefits, both public and private;
_____(3) Whether the project is supported by significant private sector investment and substantial
credible evidence that but for the existence of sales tax increment financing the project would not
be feasible;
_____(4) Whether the economic opportunity district excise tax dollars will leverage or be the
catalyst for the effective use of private, other local government, state or federal funding that is
available;
_____(5) Whether there is substantial and credible evidence that the project is likely to be started
and completed in a timely fashion;
_____(6) Whether the project will, directly or indirectly, improve the opportunities, in the area
where the project will be located, for the successful establishment or expansion of other industrial
or commercial businesses;
_____(7) Whether the project will directly or indirectly assist in the creation of additional long-
term employment opportunities in the area and the quality of jobs created in all phases of the project,
to include, but not be limited to, wages and benefits;
_____(8) Whether the project will fullfill a pressing need for the area, or part of the area, in which
the economic opportunity district is located;
_____(9) Whether the county commission has a strategy for economic development in the county
and whether the project is consistent with that strategy;
_____(10) Whether the project helps to diversify the local economy;
_____(11) Whether the project is consistent with the goals of this article;
_____(12) Whether the project is economically and fiscally sound using recognized business
standards of finance and accounting; and
_____(13) The ability of the county commission and the project developer or project team to carry
out the project: Provided, That no project may be approved by the council unless the amount of all
development expenditures proposed to be made in the first twenty-four months following the
creation of the district results in capital investment of more than fifty million dollars in the district
and the county submits clear and convincing information, to the satisfaction of the council, that such
investment will be made if the council approves the project and the Legislature authorizes the county
commission to levy an excise tax on sales of goods and services made within the economic
opportunity district as provided in this article.
(b) (c) Additional criteria. -- The council for community and economic development may
establish other criteria for consideration when approving the applications. Provided, That the
(d) Action on the application. -- The council for community and economic development
shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional information requested by the council, whichever is the
later.
_____(c) (e) Certification of project. -- If the committee council for community and economic
development approves a county's economic opportunity district project application, it shall issue to
the county commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district tax
revenue amount and the estimated net annual district tax revenue amount which, for purposes of this
article, is the difference between the gross annual district tax revenue amount and the base tax
revenue amount, all of which the council has determined with respect to the district's application
based on any investigation it considers reasonable and necessary, including, but not limited to, any
relevant information the council for community and economic development requests from the tax
commissioner and the tax commissioner provides to the council: Provided, That in determining the
net annual district tax revenue amount, the council may not use a base tax revenue amount less than
that amount certified by the tax commissioner but, in lieu of confirmation from the tax
commissioner of the gross annual district tax revenue amount, the council may use the estimate of
the gross annual district tax revenue amount provided by the county commission pursuant to
subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of previously certified district. --
If the council for community and economic development approves a county's economic opportunity
district project application to expand the geographic boundaries of a previously certified district, it
shall issue to the county commission a written certificate evidencing the approval.
_____The certificate shall expressly state a base tax revenue amount, the gross annual district tax
revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax
revenue amount, all of which the council has determined with respect to the district's application
based on any investigation it considers reasonable and necessary, including, but not limited to, any
relevant information the council requests from the tax commissioner and the tax commissioner
provides to the council: Provided, That in determining the net annual district tax revenue amount,
the council may not use a base tax revenue amount less than that amount certified by the tax
commissioner but, in lieu of confirmation from the tax commissioner of the gross annual district tax
revenue amount, the council may use the estimate of the gross annual district tax revenue amount
provided by the county commission pursuant to subsection (a) of this section.
_____(d) (g) Promulgation of rules. -- The council for community and economic development may
promulgate rules to implement the economic opportunity development district project application
approval process and to describe the criteria and procedures it has established in connection
therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but
shall be filed with the secretary of state.
§7-22-8. Establishment of the economic opportunity development district fund.
(a) General. -- There is hereby created a special revenue account in the state treasury
designated the "economic opportunity development district fund" which is an interest-bearing
account and shall be invested in the manner described in section nine-c, article six, chapter twelve
of this code with the interest income a proper credit to the fund.
(b) District subaccount. -- A separate and segregated subaccount within the account shall
be established for each economic opportunity development district that is approved by the council.
and authorized by the Legislature pursuant to subdivision (3) of this subsection. Funds In addition
to the economic opportunity district excise tax levied and collected as provided in this article, funds paid into the account for the credit of any subaccount may also be derived from the following
sources:
(1) All interest or return on the investment accruing to the subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received
from any governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for this purpose.
§7-22-9. Authorization to levy special district excise tax.
(a) General. -- County commissions have no inherent authority to levy taxes and have only
that authority expressly granted to them by the Legislature. Because a special district excise tax has
the effect of diverting, for a specified period of years, tax dollars that otherwise would go into the
general revenue fund of this state The Legislature is specifically extended, and intends by this
article, to exercise certain relevant powers expressed in article X, section six-a of the constitution
of this state as follows: (1) The Legislature may appropriate state funds for use in matching or
maximizing grants-in-aid for public purposes from the United States or any department, bureau,
commission or agency thereof, or any other source, to any county, municipality or other political
subdivision of the state, under such circumstances and subject to such terms, conditions and
restrictions as the Legislature may prescribe by law; and (2) the Legislature may impose a state tax
or taxes or dedicate a state tax or taxes or any portion thereof for the benefit of and use by counties,
municipalities or other political subdivisions of the state for public purposes, the proceeds of any
such imposed or dedicated tax or taxes or portion thereof to be distributed to such counties,
municipalities or other political subdivisions of the state under such circumstances and subject to
such terms, conditions and restrictions as the Legislature may prescribe.
_____Because a special district excise tax would have the effect of diverting, for a specified period of years, tax dollars which to the extent, if any, are not essentially incremental to tax dollars
currently paid into the general revenue fund of the state, the Legislature finds that in order to
substantially ensure that such special district excise taxes will not adversely impact the current level
of the general revenue fund of the state, it is necessary for the Legislature to separately consider and
act upon each and every economic development district which is proposed, including the unique
characteristics of location, current condition and activity of and within the area included in such
proposed economic opportunity development district and that for such reasons a statute more general
in ultimate application is not feasible for accomplishment of the intention and purpose of the
Legislature in enacting this article. Therefore, no economic opportunity development district excise
tax may be levied by a county commission until after the Legislature expressly authorizes the county
commission to levy a special district excise tax on sales of tangible personal property and services
made within district boundaries approved by the Legislature.
(b) Authorizations. -- The Legislature authorizes the following county commission to levy
special district excise taxes on sales of tangible personal property and services made from business
locations in the following economic opportunity development districts:
The Ohio County commission may levy a special district excise tax for the benefit of the
"Fort Henry" economic opportunity development project district which comprises three hundred
contiguous acres of land.
§7-22-10. Ordinance to create district as approved by council and authorized by the
Legislature.
(a) General. -- If an economic opportunity development district project has been approved
by the council and the levying of a special district excise tax for the district has been authorized by
the Legislature, all in accordance with this article, the county commission may create the district by order entered of record as provided for in article one of this chapter: Provided, That the county
commission may not amend, alter or change in any manner the boundaries of the economic
opportunity development district authorized by the Legislature. In addition to all other
requirements, the order shall contain the following:
(1) The name of the district and a description of its boundaries;
(2) A summary of any proposed services to be provided and capital improvements to be
made within the district and a reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that may be imposed upon sales by
businesses for the privilege of operating within the district, which tax shall be passed on to and paid
by the consumer, and the manner in which the taxes will be imposed, administered and collected,
all of which shall be in conformity with the requirements of this article; and
(4) The district board members' terms, their method of appointment and a general description
of the district board's powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its organization and operations not
inconsistent with any applicable laws;
(B) To elect its own officers, to appoint committees and to employ and fix compensation for
personnel necessary for its operations;
(C) To enter into contracts with any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and not-for-profit organizations and
generally to do any and all things necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this article;
(D) To amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon the terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the district board and any person,
agency, government entity, agency or instrumentality, firm, partnership, limited partnership, limited
liability company or corporation;
(E) To, unless otherwise provided for in, and subject to the provisions of any contracts or
leases to operate, repair, manage, and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use thereof and incidental thereto to
provide services, such as retail stores and restaurants, and to effectuate incidental purposes, grant
leases, permits, concessions or other authorizations to any person or persons upon the terms and
conditions for consideration and for the term of duration as agreed upon by the district board and
any person, agency, governmental department, firm or corporation;
(F) To delegate any authority given to it by law to any of its officers, committees, agents or
employees;
(G) To apply for, receive and use grants-in-aid, donations and contributions from any source
or sources and to accept and use bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction or in any other lawful manner
and hold title thereto in its own name and to sell, lease or otherwise dispose of all or part of any real
property which it may own, either by contract or at public auction, upon the approval by the district
board;
(I) To purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of any
personal property which it may own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that there exists a continuing need for redevelopment expenditures and that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable notes and other evidences of
indebtedness therefor, on the terms as the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the district's rights in its subaccount of the
downtown district redevelopment economic opportunity development district fund;
(K) To acquire (either directly or on behalf of the municipality) an interest in any entity or
entities that own any real property situate in the district, to contribute capital to any entity or entities
and to exercise the rights of an owner with respect thereto; and
(L) To expend its funds in the execution of the powers and authority given in this section,
which expenditures, by the means authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use, in the public interest and for the
general welfare of the people of West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing within the state.
(b) Additional contents of order. -- The county commission's order shall also state the
general intention of the county commission to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order. -- Upon entry of an order establishing an economic
opportunity development district excise tax, a certified copy of the order shall be mailed to the state
auditor, as ex officio the chief inspector and supervisor of public offices, the state treasurer and the
tax commissioner.
§7-22-12. Special district excise tax authorized.
(a) General. -- The county commission of a county, authorized by the Legislature to levy
a special district excise tax for the benefit of an economic opportunity development district, may, by order entered of record, impose that tax on the privilege of selling tangible personal property and
rendering select services in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section
shall be identical to the base of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the
district: Provided, That except for the exemption provided in section nine-f of said article, all
exemptions and exceptions from the consumers sales and service tax shall also apply to the special
district excise tax and sales of gasoline and special fuel shall not be subject to special district excise
tax but shall remain subject to the tax levied by said article fifteen.
(c) Tax rate. -- The rate of a special district excise tax levied pursuant to this section shall
be stated in an order entered of record by the county commission and equal to the general rate of tax
on each dollar of gross proceeds from sales of tangible personal property and services subject to the
tax levied by section three, article fifteen, chapter eleven of this code. The tax on fractional parts
of a dollar shall be levied and collected in conformity with the provision of section three of said
article.
(d) Collection by tax commissioner. -- The order of the county commission imposing a
special district excise tax shall provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen, chapter eleven of this code is
administered, assessed, collected and enforced.
(e) Deposit of net tax collected. --
(1) The order of the county commission imposing a special district excise tax shall provide
that the tax commissioner deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the county commission's subaccount therein for the economic opportunity development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this article except as provided in
subsection (f) of this section.
(2) The state treasurer shall withhold from the county commission's subaccount in the
economic opportunity development district fund and shall deposit in the general revenue fund of this
state, on or before the twentieth day of each calendar month next following the effective date of a
special district excise tax, a sum equal to one twelfth of the base tax revenue amount last certified
by the council pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the authority
of this section shall be effective on the first day of the calendar month that begins on or sixty days
after the date of adoption of an order entered of record imposing the tax or at the first day of any
later date calendar month expressly designated in the ordinance order. that begins on the first day
of a calendar month
(g) Copies of order. -- Upon entry of an order levying a special district excise tax, a certified
copy of the order shall be mailed to the state auditor, as ex officio the chief inspector and supervisor
of public offices, the state treasurer and the tax commissioner.
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity development district may not
be amended to include additional contiguous property until after the amendment is approved by the
council in the same manner as an application to approve the establishment of the district is acted
upon under section seven of this article and the amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included in the district unless it is situated
within the boundaries of the county and is contiguous to the then current boundaries of the district.
(c) Public hearing required. --
(1) The county commission of any county desiring to amend its order shall designate a time
and place for a public hearing upon the proposal to include additional property. The notice shall
meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county commission shall afford the
opportunity to be heard to any owners of real property either currently included in or proposed to
be added to the existing district and to any other residents of the county.
(d) Application to council. -- Following the hearing, the county commission may, by
resolution, apply to the council for community and economic development to approve inclusion of
the additional property in the district.
(e) Consideration by council. -- Before the council for community and economic
development approves inclusion of the additional property in the district, the council shall determine
the amount of taxes levied by article fifteen, chapter eleven of this code that were collected by
businesses located in the area the county commission proposes to add to the district in the same
manner as the base amount of tax was determined when the district was first created. The state
treasurer shall also deposit one twelfth of this additional tax base amount into the general revenue
fund each month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council approves amending the boundaries of
the district, the Legislature must amend section nine of this article to allow levy of the special
district excise tax on business located in geographic area to be included in the district. After the
Legislature amends said section, the county commission may then amend its order: Provided, That
the order may not be effective any earlier than the first day of the calendar month that begins thirty
sixty days after the effective date of the act of the Legislature authorizing the levy on the special district excise tax on businesses located in the geographic area to be added to the boundaries of the
district for which the tax is levied or a later date as set forth in the order of the county commission.
(g) Collection of special district excise tax. -- All businesses included in a district because
of the boundary amendment shall on the effective date of the order, determined as provided in
subsection (f) of this section, collect the special district excise tax on all sales on tangible property
or services made from locations in the district on or after the effective date of the county
commission's order or a later date as set forth in the order.
§7-22-15. Abolishment and dissolution of district; notice; hearing.
(a) General. -- Except upon the express written consent of the council for community and
economic development and of all the holders or obligees of any indebtedness or other instruments
the proceeds of which were applied to any development or redevelopment expenditures or any
indebtedness the payment of which is secured by revenues payable into the fund provided under
section eight of this article or by any public property, a district may only be abolished by the county
commission when there is no outstanding indebtedness, the proceeds of which were applied to any
development or redevelopment expenditures or the payment of which is secured by revenues
payable into the fund provided under section eight of this article, or by any public property, and
following a public hearing upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing required by subsection (a) of
this section shall be provided by first-class mail to all owners of real property within the district and
shall be published as a Class I-0 legal advertisement in compliance with article three, chapter fifty-
nine of this code at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the abolishment of any economic
opportunity development district, any funds or other assets, contractual rights or obligations, claims against holders of indebtedness or other financial benefits, liabilities or obligations existing after full
payment has been made on all existing contracts, bonds, notes or other obligations of the district are
transferred to and assumed by the county commission. Any funds or other assets transferred shall
be used for the benefit of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a district pursuant to this section,
its reinstatement requires compliance with all requirements and procedures set forth in this article
for the initial development, approval, establishment and creation of an economic opportunity
development district.
§7-22-17. Security for bonds.
(a) General. -- Unless the county commission shall otherwise determine in the resolution
authorizing the issuance of the bonds or notes under the authority of this article, there is hereby
created a statutory lien upon the subaccount created pursuant to section eight of this article and all
special district excise tax revenues collected for the benefit of the district pursuant to section eleven-
a, article ten, chapter eleven of this code for the purpose of securing the principal of the bonds or
notes and the interest thereon.
(b) Security for debt service. -- The principal of and interest on any bonds or notes issued
under the authority of this article shall be secured by a pledge of the special district excise tax
revenues derived from the economic opportunity development district project by the county
commission issuing the bonds or notes to the extent provided in the resolution adopted by the county
commission authorizing the issuance of the bonds or notes.
(c) Trust indenture. --
(1) In the discretion and at the option of the county commission, the bonds and notes may
also be secured by a trust indenture by and between the county commission and a corporate trustee, which may be a trust company or bank having trust powers, within or without the state of West
Virginia.
(2) The resolution authorizing the bonds or notes and fixing the details thereof may provide
that the trust indenture may contain provisions for the protection and enforcing the rights and
remedies of the bondholders as are reasonable and proper, not in violation of law, including
covenants setting forth the duties of the county commission in relation to the construction,
acquisition or financing of an economic opportunity development district project, or part thereof or
an addition thereto, and the improvement, repair, maintenance and insurance thereof and for the
custody, safeguarding and application of all moneys and may provide that the economic opportunity
development district project shall be constructed and paid for under the supervision and approval
of the consulting engineers or architects employed and designated by the county commission or, if
directed by the county commission in the resolution, by the district board, and satisfactory to the
purchasers of the bonds or notes, their successors, assigns or nominees who may require the security
given by any contractor or any depository of the proceeds of the bonds or notes or the revenues
received from the district project be satisfactory to the purchasers, their successors, assigns or
nominees.
(3) The indenture may set forth the rights and remedies of the bondholders, the county
commission or trustee and the indenture may provide for accelerating the maturity of the revenue
bonds, at the option of the bondholders or the county commission issuing the bonds, upon default
in the payment of the amounts due under the bonds.
(4) The county commission may also provide by resolution and in the trust indenture for the
payment of the proceeds of the sale of the bonds or notes and the revenues from the economic
opportunity development district project to any depository it determines, for the custody and investment thereof and for the method of distribution thereof, with safeguards and restrictions it
determines to be necessary or advisable for the protection thereof and upon the filing of a certified
copy of the resolution or of the indenture for record in the office of the clerk of the county
commission of the county in which the economic opportunity development project is located, the
resolution has the same effect, as to notice, as the recordation of a deed of trust or other recordable
instrument.
(5) In the event that more than one certified resolution or indenture is recorded, the security
interest granted by the first recorded resolution or indenture has priority in the same manner as an
earlier filed deed of trust except to the extent the earlier recorded resolution or indenture provides
otherwise.
(d) Mortgage or deed of trust. --
(1) In addition to or in lieu of the indenture provided for in subsection (c) of this section, the
principal of and interest on the bonds or notes may, but need not, be secured by a mortgage or deed
of trust covering all or any part of the economic opportunity development district project from which
the revenues pledged are derived and the same may be secured by an assignment or pledge of the
income received from the economic opportunity development district project.
(2) The proceedings under which bonds or notes are authorized to be issued, when secured
by a mortgage or deed of trust, may contain the same terms, conditions and provisions provided for
herein when an indenture is entered into between the county commission and a trustee and any
mortgage or deed of trust may contain any agreements and provisions customarily contained in
instruments securing bonds or notes, including, without limiting the generality of the foregoing,
provisions respecting the fixing and collection of revenues from the economic opportunity
development district project covered by the proceedings or mortgage, the terms to be incorporated in any lease, sale or financing agreement with respect to the economic opportunity development
district project, the improvement, repair, maintenance and insurance of the downtown
redevelopment economic opportunity district project, the creation and maintenance of special funds
from the revenues received from the economic opportunity development district project and the
rights and remedies available in event of default to the bondholders or note holders, the county
commission, or to the trustee under an agreement, indenture, mortgage or deed of trust, all as the
county commission body considers advisable and shall not be in conflict with the provisions of this
article or any existing law: Provided, That in making any agreements or provisions, a county
commission shall not have the power to incur original indebtedness by indenture, ordinance order,
resolution, mortgage or deed of trust except with respect to the economic opportunity development
district project and the application of the revenues therefrom and shall not have the power to incur
a pecuniary liability or a charge upon its general credit or against its taxing powers unless approved
by the voters in accordance with article one, chapter thirteen of this code or as otherwise permitted
by the constitution of this state.
(e) Enforcement of obligations. --
(1) The proceedings authorizing any bonds and any indenture, mortgage or deed of trust
securing the bonds may provide that, in the event of default in payment of the principal of or the
interest on the bonds, or notes, or in the performance of any agreement contained in the proceedings,
indenture, mortgage or deed of trust, payment and performance may be enforced by the appointment
of a receiver in equity with power to charge and collect rents or other amounts and to apply the
revenues from the economic opportunity development district project in accordance with the
proceedings or the provisions of the agreement, indenture, mortgage or deed of trust.
(2) Any agreement, indenture, mortgage or deed of trust may provide also that, in the event of default in payment or the violation of any agreement contained in the mortgage or deed of trust,
the agreement, indenture, mortgage or deed of trust may be foreclosed either by sale at public outcry
or by proceedings in equity and may provide that the holder or holders of any of the bonds secured
thereby may become the purchaser at any foreclosure sale, if the highest bidder therefor.
(f) No pecuniary liability. -- No breach of any agreement, indenture, mortgage or deed of
trust shall impose any pecuniary liability upon a municipality county or any charge upon its general
credit or against its taxing powers.
§7-22-19. Refunding bonds.
(a) Any bonds issued under this article and at any time outstanding may at any time, and
from time to time, be refunded by a county commission by the issuance of its refunding bonds in
amount as the county commission considers necessary to refund the principal of the bonds to be
refunded, together with any unpaid interest thereon; to make any improvements or alterations in the
downtown redevelopment economic opportunity development district project; and any premiums
and commissions necessary to be paid in connection therewith.
(b) Any refunding may be effected whether the bonds to be refunded shall have then matured
or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds
thereof for the redemption of the bonds to be refunded thereby, or by exchange of the refunding
bonds for the bonds to be refunded thereby: Provided, That the holders of any bonds to be refunded
shall not be compelled without their consent to surrender their bonds for payment or exchange prior
to the date on which they are payable or, if they are called for redemption, prior to the date on which
they are by their terms subject to redemption.
(c) Any refunding bonds issued under the authority of this article is subject to the provisions
contained in section sixteen of this article and shall be secured in accordance with the provisions of section seventeen of this article.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-2. Legislative findings and declaration of purpose.
The Legislature finds that many significant business opportunities initiated within
municipalities of this state face financial and other economic obstacles.
The Legislature further finds that there are undeveloped, underdeveloped or seriously
deteriorated development areas within certain municipalities of this state which are uniquely situated
relative to large populations in other states or to other specific economic recreational or cultural
activities or facilities which will attract large populations from this state and other states who would
be likely to make substantial retail purchases of tangible personal property and services offered in
modern and modernized structures and facilities constructed, supplemented, reconstructed or
repaired in such undeveloped, underdeveloped or seriously deteriorated areas within certain
municipalities of this state. The Legislature further finds that economic inducements provided by
the state are necessary and appropriate to enable the construction, supplementation, reconstruction
and repair of such modern and modernized structures and facilities in such undeveloped,
underdeveloped or seriously deteriorated areas within certain municipalities of this state. This
adversely affects the economic and general well-being of the citizens of those municipalities.
Establishment of economic opportunity development districts within municipalities of the state, in
accordance with the purpose and powers set forth in this article, will serve a public purpose and
promote the health, safety, prosperity, security and general welfare of all citizens in the state. It will
also promote the establishment and vitality of significant business opportunities within those
municipalities while serving as an effective means for developing or restoring and promoting retail and other business activity within the economic opportunity development districts created herein.
This will be of special benefit to the tax base of the municipalities within which any economic
development district is created under pursuant to this article and will specifically generate
substantial incremental increases in excise taxes on sales within such economic opportunity
development districts of tangible personal property and services and thereby and otherwise will
stimulate economic growth and job creation.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic development established in
section two, article two, chapter five-b of this code;
(2) "County commission" means the governing body of a county of this state;
(3) (2) "Development expenditures" means payments for governmental functions, programs,
activities, facility construction, improvements and other goods and services which a district board
is authorized to perform or provide under section five of this article;
(4) (3) "District" means an economic opportunity development district created pursuant to
this article;
(5) (4) "District board" means a district board created pursuant to section ten of this article;
(6) (5) "Eligible property" means any taxable or exempt real property located in a district
established pursuant to this article; and
_____(7) "Gross annual district tax revenue amount" means the total amount of consumers sales
and service tax actually remitted to the tax commissioner by retailers maintaining places of business
within the district with respect to sales made and services rendered by retailers from a location
within the district for the twelve full calendar months immediately preceding the filing of an application pursuant to section seven of this article; and
(8) (6) "Municipality" is a word of art and shall mean, for the purposes of this article, only
Class I and Class II cities as classified in article one, section three of this chapter.
§8-38-6. Notice; hearing.
(a) General. -- A municipality desiring to create an economic opportunity development
district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall be published as a Class I-0 legal
advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place of the hearing, the notice must also
state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The proposed geographic boundaries of the property proposed to be included in the
district; and
(5) The proposed method of financing any costs involved, including the base and rate of
special district excise tax that may be imposed upon sales of tangible personal property and taxable
services from business locations situated within the proposed district.
(c) Opportunity to be heard. -- At the time and place set forth in the notice, the municipality
shall afford the opportunity to be heard to any owner of real property situated in the proposed district
and any residents of the municipality.
(d) Application to council. -- If the municipality, following the public hearing, determines
it advisable and in the public interest to establish an economic opportunity development district, it shall apply to the council for community and economic development for approval of the economic
opportunity development district project pursuant to the procedures provided in section seven of this
article.
§8-38-7. Application to council for community and economic development for approval of an
economic opportunity development district project.
(a) General. -- The council for community and economic development shall receive and act
on applications filed with it by municipalities pursuant to section six of this article. Each application
must include:
(1) A true copy of the notice described in section six of this article;
(2) The total cost of the project;
_____(3) A reasonable estimate of the number of months needed to complete the project;
_____(4) A general description of the capital improvements, additional or extended services and
other proposed development expenditures to be made in the district as part of the project;
_____(3) (5) A description of the proposed method of financing the development expenditures,
together with a description of the reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the optimum economic viability of
the district following its inception: Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital market considerations;
(4) (6) A description of the sources and anticipated amounts of all financing, including, but
not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property taxes and fees;
(5) (7) A description of the financial contribution of the municipality to the funding of
development expenditures;
(6) (8) Identification of any businesses that the municipality expects to relocate their business
locations from the district to another place in the state in connection with the establishment of the
district or from another place in this state to the district: Provided, That for purposes of this article,
any entities shall be designated "relocated entities";
(7) (9) Identification of any businesses currently conducting business in the proposed
economic opportunity development district that the municipality expects to continue doing business
there after the district is created;
(8) (10) A good faith estimate of the aggregate amount of consumers sales and service tax
that was actually remitted to the tax commissioner by all business locations identified as provided
in subdivisions (6) (8) and (7) (9) of this subsection with respect to their sales made and services
rendered from their then current business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding the date of the application: Provided,
That for purposes of this article, the aggregate amount is designated as "the base tax revenue
amount"; a
(11) A good faith estimate of the gross annual district tax revenue amount; and the
(12) The proposed application of any surplus from all funding sources to further the
objectives of this article; Provided, however, That the amount of all development expenditures
proposed to be made in the first twenty-four months following the creation of the district shall be
not less than fifty million dollars
(13) The tax commissioner's certification of: (i) The amount of consumers sales and service
taxes collected from businesses located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the application will be submitted to
the council; (ii) the estimated amount of economic opportunity district excise tax that will be collected during the first twelve months after the month in which the tax commissioner would first
begin to collect that tax; and (iii) the estimated amount of economic opportunity district excise tax
that will be collected during the first thirty-six months after the month in which the tax
commissioner would first begin to collect that tax; and
(14) Any additional information the council may require.____(b) Review of applications. --
The council shall review all project proposals for conformance to statutory and regulatory
requirements, the reasonableness of the project's budget and timetable for completion, and the
following criteria:
_____(1) The quality of the proposed project and how it addresses economic problems in the area
in which the project will be located;
_____(2) The merits of the project determined by a cost benefit analysis that incorporates all costs
and benefits, both public and private;
_____(3) Whether the project is supported by significant private sector investment and substantial
credible evidence that but for the existence of sales tax increment financing the project would not
be feasible;
_____(4) Whether the economic opportunity development district excise tax dollars will leverage
or be the catalyst for the effective use of private, other local government, state or federal funding
that is available;
_____(5) Whether there is substantial and credible evidence that the project is likely to be started
and completed in a timely fashion;
_____(6) Whether the project will, directly or indirectly, improve the opportunities, in the area
where the project will be located, for the successful establishment or expansion of other industrial
or commercial businesses;
_____(7) Whether the project will directly or indirectly assist in the creation of additional long-
term employment opportunities in the area and the quality of jobs created in all phases of the project,
to include, but not be limited to, wages and benefits;
_____(8) Whether the project will fullfill a pressing need for the area, or part of the area, in which
the economic opportunity district is located;
_____(9) Whether the municipality has a strategy for economic development in the municipality
and whether the project is consistent with that strategy;
_____(10) Whether the project helps to diversify the local economy;
_____(11) Whether the project is consistent with the goals of this article;
_____(12) Whether the project is economically and fiscally sound using recognized business
standards of finance and accounting; and
_____(13) The ability of the municipality and the project developer or project team to carry out
the project: Provided, That no project may be approved by the council unless the amount of all
development expenditures proposed to be made in the first twenty-four months following the
creation of the district results in capital investment of more than fifty million dollars in the district
and the municipality submits clear and convincing information, to the satisfaction of the council,
that such investment will be made if the council approves the project and the Legislature authorizes
the municipality to levy an excise tax on sales of goods and services made within the economic
opportunity development district as provided in this article.
_____(b) (c) Additional criteria. -- The council for community and economic development may
establish other criteria for consideration when approving the applications. Provided, That the
(d) Action on the application. -- The council for community and economic development
shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional information requested by the council, whichever is the
later.
_____(c) (e) Certification of project. -- If the committee council for community and economic
development approves a municipality's economic opportunity district project application, it shall
issue to the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district tax
revenue amount and the estimated net annual district tax revenue amount which, for purposes of this
article, is the difference between the gross annual district tax revenue amount and the base tax
revenue amount, all of which the council for community and economic development has determined
with respect to the district's application based on any investigation it considers reasonable and
necessary, including, but not limited to, any relevant information the council for community and
economic development requests from the tax commissioner and the tax commissioner provides to
the council: Provided, That in determining the net annual district tax revenue amount, the council
may not use a base tax revenue amount less than that amount certified by the tax commissioner but,
in lieu of confirmation from the tax commissioner of the gross annual district tax revenue amount,
the council may use the estimate of the gross annual district tax revenue amount provided by the
municipality pursuant to subsection (a) of this section.
(e) Certification of enlargement of geographic boundaries of previously certified district.
-- If the council for community and economic development approves a municipality's economic
opportunity district project application to expand the geographic boundaries of a previously certified
district, it shall issue to the municipality a written certificate evidencing the approval.
_____The certificate shall expressly state a base tax revenue amount, the gross annual district tax
revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax
revenue amount, all of which the council has determined with respect to the district's application
based on any investigation it considers reasonable and necessary, including, but not limited to, any
relevant information the council requests from the tax commissioner and the tax commissioner
provides to the council: Provided, That in determining the net annual district tax revenue amount,
the council may not use a base tax revenue amount less than that amount certified by the tax
commissioner but, in lieu of confirmation from the tax commissioner of the gross annual district tax
revenue amount, the council may use the estimate of the gross annual district tax revenue amount
provided by the municipality pursuant to subsection (a) of this section.
_____(d) (f) Promulgation of rules. -- The council for community and economic development may
promulgate rules to implement the economic opportunity development district project application
approval process and to describe the criteria and procedures it has established in connection
therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but
shall be filed with the secretary of state.
§8-38-8. Establishment of the economic opportunity development district fund.
(a) General. -- There is hereby created a special revenue account in the state treasury
designated the "economic opportunity development district fund" which is an interest-bearing
account and shall be invested in the manner described in section nine-c, article six, chapter twelve
of this code with the interest income a proper credit to the fund.
(b) District subaccount. -- A separate and segregated subaccount within the account shall
be established for each economic opportunity development district that is approved by the council.
and authorized by the Legislature pursuant to subdivision (3) of this subsection. Funds In addition
to the economic opportunity district excise tax levied and collected as provided in this article, funds paid into the account for the credit of any subaccount may also be derived from the following
sources:
(1) All interest or return on the investment accruing to the subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received
from any governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for this purpose.
§8-38-9. Authorization to levy special district excise tax.
(a) General. -- Municipalities have no inherent authority to levy taxes and have only that
authority expressly granted to them by the Legislature. Because a special district excise tax has the
effect of diverting, for a specified period of years, tax dollars that otherwise would go into the
general revenue fund of this state The Legislature is specifically extended, and intends by this article
to exercise certain relevant powers expressed in article X, section six-a of the constitution of this
state as follows: (1) The Legislature may appropriate state funds for use in matching or maximizing
grants-in-aid for public purposes from the United States or any department, bureau, commission or
agency thereof, or any other source, to any county, municipality or other political subdivision of the
state, under such circumstances and subject to such terms, conditions and restrictions as the
Legislature may prescribe by law; and (2) the Legislature may impose a state tax or taxes or dedicate
a state tax or taxes or any portion thereof for the benefit of and use by counties, municipalities or
other political subdivisions of the state for public purposes, the proceeds of any such imposed or
dedicated tax or taxes or portion thereof to be distributed to such counties, municipalities or other
political subdivisions of the state under such circumstances and subject to such terms, conditions
and restrictions as the Legislature may prescribe.
_____Because a special district excise tax would have the effect of diverting, for a specified period of years, tax dollars which to the extent, if any, are not essentially incremental to tax dollars
currently paid into the general revenue fund of the state, the Legislature finds that in order to
substantially ensure that such special district excise taxes will not adversely impact the current level
of the general revenue fund of the state, it is necessary for the Legislature to separately consider and
act upon each and every economic development district which is proposed, including the unique
characteristics of location, current condition and activity of and within the area included in such
proposed economic opportunity development district and that for such reasons a statute more general
in ultimate application is not feasible for accomplishment of the intention and purpose of the
Legislature in enacting this article. Therefore, no economic opportunity development district excise
tax may be levied by a municipality until after the Legislature expressly authorizes the municipality
to levy a special district excise tax on sales of tangible personal property and services made within
district boundaries approved by the Legislature.
(b) Authorizations. -- The Legislature authorizes the following municipalities to levy special
district excise taxes on sales of tangible personal property and services made from business locations
in the following economic opportunity development districts:
§8-38-10. Ordinance to create district as approved by council and authorized by the
Legislature.
(a) General. -- If an economic opportunity development district project has been approved
by the council for community and economic development and the levying of a special district excise
tax for the district has been authorized by the Legislature, all in accordance with this article, the
municipality may create the district by order ordinance entered of record as provided for in article
one of this chapter: Provided, That the municipality may not amend, alter or change in any manner
the boundaries of the economic opportunity development district authorized by the Legislature. In addition to all other requirements, the order ordinance shall contain the following:
(1) The name of the district and a description of its boundaries;
(2) A summary of any proposed services to be provided and capital improvements to be
made within the district and a reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that may be imposed upon sales by
businesses for the privilege of operating within the district, which tax shall be passed on to and paid
by the consumer, and the manner in which the taxes will be imposed, administered and collected,
all of which shall be in conformity with the requirements of this article; and
(4) The district board members' terms, their method of appointment and a general description
of the district board's powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its organization and operations not
inconsistent with any applicable laws;
(B) To elect its own officers, to appoint committees and to employ and fix compensation for
personnel necessary for its operations;
(C) To enter into contracts with any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and not-for-profit organizations and
generally to do any and all things necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this article;
(D) To amend or supplement any contracts or leases or to enter into new, additional or
further contracts or leases upon the terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the district board and any person,
agency, government entity, agency or instrumentality, firm, partnership, limited partnership, limited liability company or corporation;
(E) To, unless otherwise provided for in, and subject to the provisions of any contracts or
leases to operate, repair, manage, and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use thereof and incidental thereto to
provide services, such as retail stores and restaurants, and to effectuate incidental purposes, grant
leases, permits, concessions or other authorizations to any person or persons upon the terms and
conditions for consideration and for the term of duration as agreed upon by the district board and
any person, agency, governmental department, firm or corporation;
(F) To delegate any authority given to it by law to any of its officers, committees, agents or
employees;
(G) To apply for, receive and use grants-in-aid, donations and contributions from any source
or sources and to accept and use bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction or in any other lawful manner
and hold title thereto in its own name and to sell, lease or otherwise dispose of all or part of any real
property which it may own, either by contract or at public auction, upon the approval by the district
board;
(I) To purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of any
personal property which it may own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that there exists a continuing need for
redevelopment expenditures and that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable notes and other evidences of
indebtedness therefor, on the terms as the district shall determine, and give security therefor as is requisite, including, without limitation, a pledge of the district's rights in its subaccount of the
downtown district redevelopment economic opportunity development district fund;
(K) To acquire (either directly or on behalf of the municipality) an interest in any entity or
entities that own any real property situate in the district, to contribute capital to any entity or entities
and to exercise the rights of an owner with respect thereto; and
(L) To expend its funds in the execution of the powers and authority given in this section,
which expenditures, by the means authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use, in the public interest and for the
general welfare of the people of West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing within the state.
(b) Additional contents of order ordinance. -- The municipality's order ordinance shall also
state the general intention of the municipality to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order ordinance. -- Upon entry of an order enactment of
an ordinance establishing an economic opportunity development district excise tax, a certified copy
of the order ordinance shall be mailed to the state auditor, as ex officio the chief inspector and
supervisor of public offices, the state treasurer and the tax commissioner.
§8-38-11. District board; duties.
(a) General. -- The council of a municipality that has been authorized by the Legislature
council for community and economic development to establish an economic opportunity
development district, in accordance with this article, shall provide, by order entered of record
ordinance, for the appointment of a district board to oversee the operations of the district: Provided,
That the municipality may, by order in the ordinance, in lieu of appointing a separate district board, designate itself to act as the district board.
(b) Composition of board. -- If a separate district board is to be appointed, it shall be made
up of at least seven members, two of which shall be owners, or representatives of owners, of real
property situated in the economic opportunity development district and the other five shall be
residents of the municipality within which the district is located.
(c) Annual report. -- The district board, in addition to the duties prescribed by the order
ordinance creating the district, shall submit an annual report to the municipality and the council
containing:
(1) An itemized statement of its receipts and disbursements for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal year;
(3) A recommended program of services to be performed and capital improvements to be
made within the district for the coming fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this article prohibits any member of the
district board from also serving on the board of directors of a nonprofit corporation with which the
municipality may contract to provide specified services within the district.
(e) Compensation of board members. -- Each member of the district board may receive
reasonable compensation for services on the board in the amount determined by the municipality:
Provided, That when a district board is not created for the district but the work of the board is done
by the municipality, the members shall receive no additional compensation.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by the Legislature to levy a special
district excise tax for the benefit of an economic opportunity development district, may, by order entered of record ordinance, impose that tax on the privilege of selling tangible personal property
and rendering select services in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section
shall be identical to the base of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the
district: Provided, That except for the exemption provided in said section nine-f of said article, all
exemptions and exceptions from the consumers sales and service tax shall also apply to the special
district excise tax and sales of gasoline and special fuel shall not be subject to special district excise
tax but shall remain subject to the tax levied by said article fifteen.
(c) Tax rate. -- The rate of a special district excise tax levied pursuant to this section shall
be stated in an order entered of record ordinance enacted by the municipality and equal to the
general rate of tax on each dollar of gross proceeds from sales of tangible personal property and
services subject to the tax levied by section three, article fifteen, chapter eleven of this code. The
tax on fractional parts of a dollar shall be levied and collected in conformity with the provision of
section three of said article.
(d) Collection by tax commissioner. -- The order ordinance of the municipality imposing a
special district excise tax shall provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen, chapter eleven of this code is
administered, assessed, collected and enforced.
(e) Deposit of net tax collected. --
(1) The order ordinance of the municipality imposing a special district excise tax shall
provide that the tax commissioner deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the municipality's subaccount therein for the economic opportunity development district and that the money in the subaccount may only be used
to pay for development expenditures as provided in this article except as provided in subsection (f)
of this section.
(2) The state treasurer shall withhold from the municipality's subaccount in the economic
opportunity development district fund and shall deposit in the general revenue fund of this state, on
or before the twentieth day of each calendar month next following the effective date of a special
district excise tax, a sum equal to one twelfth of the base tax revenue amount last certified by the
council pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the authority
of this section shall be effective on the first day of the calendar month that begins on or at least sixty
days after the date of adoption of an order entered of record enactment of the ordinance imposing
the tax or at any later date expressly designated in the ordinance that begins on the first day of a
calendar month.
(g) Copies of order ordinance. -- Upon entry of an order enactment of an ordinance levying
a special district excise tax, a certified copy of the order ordinance shall be mailed to the state
auditor, as ex officio the chief inspector and supervisor of public offices, the state treasurer and the
tax commissioner.
§8-38-14. Modification of included area; notice; hearing.
(a) General. -- The order ordinance creating an economic opportunity development district
may not be amended to include additional contiguous property until after the amendment is
approved by the council for community and economic development in the same manner as an
application to approve the establishment of the district is acted upon under section seven of this
article. and the amendment is authorized by the Legislature
(b) Limitations. -- Additional property may not be included in the district unless it is situated
within the boundaries of the municipality and is contiguous to the then current boundaries of the
district.
(c) Public hearing required. --
(1) The council of any municipality desiring to amend its order ordinance shall designate a
time and place for a public hearing upon the proposal to include additional property. The notice
shall meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the municipality shall afford the opportunity
to be heard to any owners of real property either currently included in or proposed to be added to
the existing district and to any other residents of the municipality.
(d) Application to council. -- Following the hearing, the municipality may, by resolution,
apply to the council for community and economic development to approve inclusion of the
additional property in the district.
(e) Consideration by council. -- Before the council for community and economic
development approves inclusion of the additional property in the district, the council shall determine
the amount of taxes levied by article fifteen, chapter eleven of this code that were collected by
businesses located in the area the municipality proposes to add to the district in the same manner as
the base amount of tax was determined when the district was first created. The state treasurer shall
also deposit one twelfth of this additional tax base amount into the general revenue fund each month,
as provided in section twelve of this article.
(f) Legislative action required. -- After the council for community and economic
development approves amending the boundaries of the district, the Legislature must amend section
nine of this article to allow levy of the special district excise tax on business located in geographic area to be included in the district. After the Legislature amends said section, the municipality may
then amend its order ordinance: Provided, That the order ordinance may not be effective any earlier
than the first day of the calendar month that begins thirty sixty days after the effective date of the
act of the Legislature authorizing amended ordinance imposing the levy on of the special district
excise tax on businesses located in the geographic area to be added to the boundaries of the district
for which the tax is levied or the first day of a later date calendar month as set forth in the order
ordinance of the municipality.
(g) Collection of special district excise tax. -- All businesses included in a district because
of the boundary amendment shall on the effective date of the order ordinance, determined as
provided in subsection (f) of this section, collect the special district excise tax on all sales on
tangible property or services made from locations in the district on or after the effective date of the
municipality's order ordinance or a later date as set forth in the order ordinance.
§8-38-15. Abolishment and dissolution of district; notice; hearing.
(a) General. -- Except upon the express written consent of the council for community and
economic development and of all the holders or obligees of any indebtedness or other instruments
the proceeds of which were applied to any development or redevelopment expenditures or any
indebtedness, the payment of which is secured by revenues payable into the fund provided under
section eight of this article or by any public property, a district may only be abolished by the
municipality when there is no outstanding indebtedness the proceeds of which were applied to any
development or redevelopment expenditures or the payment of which is secured by revenues
payable into the fund provided under section eight of this article, or by any public property, and
following a public hearing upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing required by subsection (a) of this section shall be provided by first-class mail to all owners of real property within the district and
shall be published as a Class I-0 legal advertisement in compliance with article three, chapter fifty-
nine of this code at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the abolishment of any economic
opportunity development district, any funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits, liabilities or obligations existing after full
payment has been made on all existing contracts, bonds, notes or other obligations of the district are
transferred to and assumed by the municipality. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a district pursuant to this section,
its reinstatement requires compliance with all requirements and procedures set forth in this article
for the initial development, approval, establishment and creation of an economic opportunity
development district.
§8-38-16. Bonds issued to finance economic opportunity development district projects.
(a) General. -- The municipality that established the economic opportunity development
district may issue bonds or notes for the purpose of financing development expenditures, as
described in section five of this article, with respect to one or more projects within the economic
opportunity development district.
(b) Limited obligations. -- All bonds and notes issued by a municipality under the authority
of this article are limited obligations of the municipality.
(c) Term of obligations. -- No municipality may issue notes, bonds or other instruments for
funding district projects or improvements that exceed a repayment schedule of thirty years.
(d) Debt service. -- The principal and interest on the bonds shall be payable out of the funds on deposit in the subaccount established for the economic opportunity development district pursuant
to section eight of this article, including, without limitation, any funds derived from the special
district excise tax imposed by section twelve of this article or other revenues derived from the
economic opportunity development district to the extent pledged for the purpose by the municipality
in the resolution authorizing the bonds.
(e) Surplus funds. -- To the extent that the average daily amount on deposit in the subaccount
established for a district pursuant to section eight of this article exceeds, for more than six
consecutive calendar months, the sum of: (1) One hundred thousand dollars; plus (2) the amount
required to be kept on deposit pursuant to the documents authorizing, securing or otherwise relating
to the bonds or notes issued under this section, then the excess shall be used by the district either to
redeem the bonds or notes previously issued or remitted to the general fund of this state.
(f) Debt not general obligation of municipality. -- Neither the notes or bonds and any interest
coupons issued under the authority of this article shall ever constitute an indebtedness of the
municipality issuing the notes or bonds within the meaning of any constitutional provision or
statutory limitation and shall never constitute or give rise to a pecuniary liability of the municipality
issuing the notes or bonds.
(g) Debt not a charge general credit or taxing powers of municipality. -- Neither the bonds
or notes, nor interest thereon, is a charge against the general credit or taxing powers of the
municipality and that fact shall be plainly stated on the face of each bond or note.
(h) Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed, issued and delivered at any
time and from time to time, may be in a form and denomination, may be of a tenor, must be
negotiable but may be registered as to the principal thereof or as to the principal and interest thereof, may be payable in any amounts and at any time or times, may be payable at any place or places, may
bear interest at any rate or rates payable at any place or places and evidenced in any manner and may
contain any provisions therein not inconsistent herewith, all as provided in the order or orders
ordinance of the municipality whereunder the bonds or notes are authorized to be issued.
(2) The bonds may be sold by the municipality at public or private sale at, above or below
par as the municipality authorizes.
(3) Bonds and notes issued pursuant to this article shall be signed by the authorized
representative of the municipality and attested by the municipal clerk recorder and be under the seal
of the municipality.
(4) Any coupons attached to the bonds shall bear the facsimile signature of the authorized
representative of the municipality. In case any of the officials whose signatures appear on the bonds,
notes or coupons cease to be officers before the delivery of the bonds or notes, their signatures shall,
nevertheless, be valid and sufficient for all purposes to the same extent as if they had remained in
office until the delivery.
(i) Additional bonds or notes. -- If the proceeds of the bonds or notes, by error of calculation
or otherwise, are less than the cost of the economic opportunity development district project, or if
additional real or personal property is to be added to the district project or if it is determined that
financing is needed for additional development or redevelopment expenditures, additional bonds or
notes may, in like manner, be issued to provide the amount of the deficiency or to defray the cost
of acquiring or financing any additional real or personal property or development or redevelopment
expenditures and, unless otherwise provided for in the trust agreement, mortgage or deed of trust,
are considered to be of the same issue and shall be entitled to payment from the same fund, without
preference or priority, and shall be of equal priority as to any security.
§8-38-17. Security for bonds.
(a) General. -- Unless the municipality shall otherwise determine in the resolution
authorizing the issuance of the bonds or notes under the authority of this article, there is hereby
created a statutory lien upon the subaccount created pursuant to section eight of this article and all
special district excise tax revenues collected for the benefit of the district pursuant to section eleven-
a, article ten, chapter eleven of this code for the purpose of securing the principal of the bonds or
notes and the interest thereon.
(b) Security for debt service. -- The principal of and interest on any bonds or notes issued
under the authority of this article shall be secured by a pledge of the special district excise tax
revenues derived from the economic opportunity development district project by the municipality
issuing the bonds or notes to the extent provided in the resolution adopted by the municipality
authorizing the issuance of the bonds or notes.
(c) Trust indenture. --
(1) In the discretion and at the option of the municipality, the bonds and notes may also be
secured by a trust indenture by and between the municipality and a corporate trustee, which may be
a trust company or bank having trust powers, within or without the state of West Virginia.
(2) The resolution authorizing the bonds or notes and fixing the details thereof may provide
that the trust indenture may contain provisions for the protection and enforcing the rights and
remedies of the bondholders as are reasonable and proper, not in violation of law, including
covenants setting forth the duties of the municipality in relation to the construction, acquisition or
financing of an economic opportunity development district project, or part thereof or an addition
thereto, and the improvement, repair, maintenance and insurance thereof and for the custody,
safeguarding and application of all moneys and may provide that the economic opportunity development district project shall be constructed and paid for under the supervision and approval
of the consulting engineers or architects employed and designated by the municipality or, if directed
by the municipality in the resolution, by the district board, and satisfactory to the purchasers of the
bonds or notes, their successors, assigns or nominees who may require the security given by any
contractor or any depository of the proceeds of the bonds or notes or the revenues received from the
district project be satisfactory to the purchasers, their successors, assigns or nominees.
(3) The indenture may set forth the rights and remedies of the bondholders, the municipality
or trustee and the indenture may provide for accelerating the maturity of the revenue bonds, at the
option of the bondholders or the municipality issuing the bonds, upon default in the payment of the
amounts due under the bonds.
(4) The municipality may also provide by resolution and in the trust indenture for the
payment of the proceeds of the sale of the bonds or notes and the revenues from the economic
opportunity development district project to any depository it determines, for the custody and
investment thereof and for the method of distribution thereof, with safeguards and restrictions it
determines to be necessary or advisable for the protection thereof and upon the filing of a certified
copy of the resolution or of the indenture for record with the clerk of the municipality in which the
economic opportunity development project is located, the resolution has the same effect, as to
notice, as the recordation of a deed of trust or other recordable instrument.
(5) In the event that more than one certified resolution or indenture is recorded, the security
interest granted by the first recorded resolution or indenture has priority in the same manner as an
earlier filed deed of trust except to the extent the earlier recorded resolution or indenture provides
otherwise.
(d) Mortgage or deed of trust. --
(1) In addition to or in lieu of the indenture provided for in subsection (c) of this section, the
principal of and interest on the bonds or notes may, but need not, be secured by a mortgage or deed
of trust covering all or any part of the economic opportunity development district project from which
the revenues pledged are derived and the same may be secured by an assignment or pledge of the
income received from the economic opportunity development district project.
(2) The proceedings under which bonds or notes are authorized to be issued, when secured
by a mortgage or deed of trust, may contain the same terms, conditions and provisions provided for
herein when an indenture is entered into between the municipality and a trustee and any mortgage
or deed of trust may contain any agreements and provisions customarily contained in instruments
securing bonds or notes, including, without limiting the generality of the foregoing, provisions
respecting the fixing and collection of revenues from the economic opportunity development district
project covered by the proceedings or mortgage, the terms to be incorporated in any lease, sale or
financing agreement with respect to the economic opportunity development district project, the
improvement, repair, maintenance and insurance of the downtown redevelopment economic
opportunity development district project, the creation and maintenance of special funds from the
revenues received from the economic opportunity development district project and the rights and
remedies available in event of default to the bondholders or note holders, the municipality, or to the
trustee under an agreement, indenture, mortgage or deed of trust, all as the municipality considers
advisable and shall not be in conflict with the provisions of this article or any existing law:
Provided, That in making any agreements or provisions, a municipality shall not have the power to
incur original indebtedness by indenture, ordinance, resolution, mortgage or deed of trust except
with respect to the economic opportunity development district project and the application of the
revenues therefrom and shall not have the power to incur a pecuniary liability or a charge upon its general credit or against its taxing powers unless approved by the voters in accordance with article
one, chapter thirteen of this code or as otherwise permitted by the constitution of this state.
(e) Enforcement of obligations. --
(1) The proceedings authorizing any bonds and any indenture, mortgage or deed of trust
securing the bonds may provide that, in the event of default in payment of the principal of or the
interest on the bonds, or notes, or in the performance of any agreement contained in the proceedings,
indenture, mortgage or deed of trust, payment and performance may be enforced by the appointment
of a receiver in equity with power to charge and collect rents or other amounts and to apply the
revenues from the economic opportunity development district project in accordance with the
proceedings or the provisions of the agreement, indenture, mortgage or deed of trust.
(2) Any agreement, indenture, mortgage or deed of trust may provide also that, in the event
of default in payment or the violation of any agreement contained in the mortgage or deed of trust,
the agreement, indenture, mortgage or deed of trust may be foreclosed either by sale at public outcry
or by proceedings in equity and may provide that the holder or holders of any of the bonds secured
thereby may become the purchaser at any foreclosure sale, if the highest bidder therefor.
(f) No pecuniary liability. -- No breach of any agreement, indenture, mortgage or deed of
trust shall impose any pecuniary liability upon a municipality or any charge upon its general credit
or against its taxing powers.
§8-38-19. Refunding bonds.
(a) Any bonds issued under this article and at any time outstanding may at any time, and
from time to time, be refunded by a municipality by the issuance of its refunding bonds in amount
as the municipality considers necessary to refund the principal of the bonds to be refunded, together
with any unpaid interest thereon; to make any improvements or alterations in the downtown redevelopment economic opportunity development district project; and any premiums and
commissions necessary to be paid in connection therewith.
(b) Any refunding may be effected whether the bonds to be refunded shall have then matured
or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds
thereof for the redemption of the bonds to be refunded thereby, or by exchange of the refunding
bonds for the bonds to be refunded thereby: Provided, That the holders of any bonds to be refunded
shall not be compelled without their consent to surrender their bonds for payment or exchange prior
to the date on which they are payable or, if they are called for redemption, prior to the date on which
they are by their terms subject to redemption.
(c) Any refunding bonds issued under the authority of this article is subject to the provisions
contained in section sixteen of this article and shall be secured in accordance with the provisions of
section seventeen of this article.
CHAPTER 11. TAXATION.
ARTICLE 10. TAX PROCEDURE AND ADMINISTRATION.
§11-10-11a. Administration of special district excise tax; commission authorized.
(a) Any municipality or county commission which, pursuant to section twelve, article
twenty-two, chapter seven of this code, section eleven, article thirteen-b, chapter eight of this code,
or section twelve, article thirty-eight, chapter eight of this code imposes a special district excise tax
shall, by express provision in the order or ordinance imposing that tax, authorize the state tax
commissioner to administer, assess, collect and enforce that tax on behalf of and as its agent.
(1) The county commission or municipality shall make such authorization by the adoption
of a provision in its order or ordinance levying a special district excise tax stating its purpose and
referring to this section and providing that the order or ordinance shall be effective on the first day of a month at least sixty days after its adoption.
(2) A certified copy of the order or ordinance shall be forwarded to the state auditor, the state
treasurer and the tax commissioner so that it will be received within five days after its adoption or
enactment.
(b) Any special district excise tax administered under this section shall be administered and
collected by the tax commissioner in the same manner and subject to the same interest, additions to
tax and penalties as provided for the tax imposed in article fifteen of this chapter.
(c) All special district excise tax moneys collected by the tax commissioner under this
section shall be paid into the state treasury to the credit of each county commission's subaccount
in the economic opportunity development district fund created pursuant to section nine, article
twenty-two, chapter seven of this code, or to the credit of each municipality's subaccount in the
economic opportunity development district fund created pursuant to section nine, article thirty-eight,
chapter eight of this code, for the particular economic opportunity development district. The special
district excise tax moneys shall be credited to the subaccount of each particular county commission
or municipality levying a special district excise tax being administered under this section. The credit
shall be made to the subaccount of the county commission or municipality for the economic
opportunity development district in which the taxable sales were made and services rendered as
shown by the records of the tax commissioner and certified by him or her monthly to the state
treasurer, namely, the location of each place of business of every vendor collecting and paying the
tax to the tax commissioner without regard to the place of possible use by the purchaser.
(d) As soon as practicable after the special district excise tax moneys have been paid into the
state treasury in any month for the preceding reporting period, the district board may issue a
requisition to the auditor requesting issuance of a state warrant for the proper amount in favor of each county commission or municipality entitled to the monthly remittance of its special district
excise tax moneys.
(1) Upon receipt of the requisition, the auditor shall issue his or her warrant on the state
treasurer for the funds requested and the state treasurer shall pay the warrant out of the subaccount.
(2) If errors are made in any payment, or adjustments are otherwise necessary, whether
attributable to refunds to taxpayers or to some other fact, the errors shall be corrected and
adjustments made in the payments for the next six months as follows: One sixth of the total
adjustment shall be included in the payments for the next six months. In addition, the payment shall
include a refund of amounts erroneously not paid to the county commission or the municipality and
not previously remitted during the three years preceding the discovery of the error.
(3) A correction and adjustment in payments described in this subsection due to the
misallocation of funds by the vendor shall be made within three years of the date of the payment
error.
(e) Notwithstanding any other provision of this code to the contrary, the tax commissioner
shall deduct and retain for the benefit of his or her office for expenditure pursuant to appropriation
of the Legislature from each payment into the state treasury, as provided in subsection (c) of this
section, one percent thereof as a commission to compensate his or her office for the discharge of the
duties described in this section.
ARTICLE 15B. STREAMLINED SALES AND USE TAX ADMINISTRATION.
§11-15B-32. Effective date.
(a) The provisions of this article, as amended or added during the regular legislative session
in the year two thousand three, shall take effect the first day of January, two thousand four, and
apply to all sales made on or after that date and to all returns and payments due on or after that day, except as otherwise expressly provided in section five of this article.
(b) The provisions of this article, as amended or added during the second extraordinary
legislative session in the year two thousand three, shall take effect the first day of January, two
thousand four, and apply to all sales made on or after that date.
§11-15B-33. State administration of local sales and use taxes.
The tax commissioner shall conduct, or authorize others to conduct on his or her behalf, all
audits of sellers registered under the streamlined sales and use tax agreement for compliance with
the sales and use tax laws of this state and the sales and use tax laws of its local jurisdictions. A
local jurisdiction may not conduct independent sales or use tax audits of sellers registered under the
streamlined sales and use tax agreement.
§11-15B-34. State and local sales and use tax bases.
(a) General. -- The tax base of a local jurisdiction that levies a local sales or use tax pursuant
to authority granted by the Legislature shall be identical to the sales and use tax base of this state,
unless otherwise prohibited by federal law, except as provided in subsection (b) of this section.
(b) Exceptions. -- This section does not apply to sales or use taxes levied on: (1) The
wholesale sale of gasoline or special fuel, which local jurisdictions are prohibited from taxing; or
(2) the retail sale or transfer of motor vehicles, aircraft, watercraft, modular homes, manufactured
homes or mobile homes.
§11-15B-35. Local rate and boundary changes.
(a) General. -- Local tax rate changes shall be effective only on the first day of a calendar
quarter after a minimum of sixty days' notice to seller, except as provided in subsection (b) of this
section.
(b) Printed catalogs. -- Local tax rate changes shall apply to purchases from printed catalogs where the purchaser computed the tax based upon the local tax rate published in the catalog only on
and after the first day of a calendar quarter after a minimum of one hundred twenty days' notice to
the sellers.
(c) Local boundary changes. -- A local jurisdiction boundary change shall first apply for
purposes of computation of a local sales and use tax on the first day of a calendar quarter after a
minimum of sixty days' notice to sellers.
(d) Database of local jurisdiction boundaries.
(1) The state shall provide and maintain a database that describes boundary changes for all
taxing jurisdictions. This database shall include a description of the change and the effective date
of the change for sales and use tax purposes.
(2) The state shall provide and maintain a database of all sales and use tax rates for all of the
jurisdictions levying taxes within the state. For the identification of states, counties and cities, codes
corresponding to the rates must be provided according to federal Information Processing Standards
(FIPS) as developed by the National Institute of Standards and Technology. For the identification
of all other jurisdictions, codes corresponding to the rates must be in the format determined by the
members of the streamlined sales and use tax agreement.
(3) The state shall provide and maintain a database that assigns each five-digit and nine-digit
zip code within a member state to the proper tax rates and jurisdictions. The state must apply the
lowest combined tax rate imposed in the zip code area if the area includes more than one tax rate
in any level of taxing jurisdictions. If a nine-digit zip code designation is not available for a street
address or if a seller is unable to determine the nine-digit zip code designation of a purchaser after
exercising due diligence to determine the designation, the seller may apply the rate for the five-digit
zip code area. For the purposes of this section, there is a rebuttable presumption that a seller has exercised due diligence if the seller has attempted to determine the nine-digit zip code designation
by utilizing software approved by the members of the streamlined sales and use tax agreement that
makes this designation from the street address and the five-digit zip code of the purchaser.
(4) This state shall participate with other member states in the development of an address-
based system for assigning taxing jurisdictions. The system shall meet the requirements developed
pursuant to the federal Mobile Telecommunications Sourcing Act (4 U.S.C. Sec. 119). The
governing board of the streamlined sales and use tax agreement may allow a member state to require
sellers that register under this agreement to use an address-based system provided by that member
state. If any member state develops an address-based assignment system pursuant to the Mobile
Telecommunications Sourcing Act, a seller may use that system in place of the system provided in
subdivision (3) of this subsection.
§11-15B-36. Relief from certain liability for local taxes.
(a) General. -- Sellers and certified service providers registered under the streamlined sales
and use tax agreement to collect sales and use taxes imposed by local jurisdiction of this state who
charged and collected the incorrect amount of sales or use taxes resulting from the seller or the
certified service provider relying on erroneous data provided by this state on tax rates, boundaries,
or taxing jurisdiction assignments shall be held harmless by the tax commissioner and the local
taxing jurisdiction.
(b) Exception. -- A state that is a member of the streamlined sales and use tax agreement and
provides an address-based system for assigning taxing jurisdictions pursuant to subsection (G),
section three hundred five of the agreement, or pursuant to the federal Mobile Telecommunications
Sourcing Act, is not required to provide liability relief for errors resulting from reliance on
information provided by the member state under subsection (F) of section three hundred five.
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 791), and there were--yeas 87, nays
4, absent and not voting 9, with the nays and absent and not voting being as follows:
Nays: Carmichael, Evans, Leggett and Louisos.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler,
Shelton and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 792),
and there were--yeas 89, nays 2, absent and not voting 9, with the nays and absent and not voting
being as follows:
Nays: Carmichael and Louisos.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler,
Shelton and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 2010) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 793), and there were--yeas 89, nays
2, absent and not voting 9, with the nays and absent and not voting being as follows:
Nays: Carmichael and Louisos.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler,
Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 2010) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 2012, Allowing agencies, counties and their instrumentalities to enter
into energy saving contracts; leaseback; on second reading, coming up in regular order, was, at the
request of Delegate Staton, and by unanimous consent, passed over temporarily.
S. B. 2013, Relating to workers' compensation generally; on second reading, coming up in
regular order, was read a second time and ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 794), and there were--yeas 85, nays
5, absent and not voting 10, with the nays and absent and not voting being as follows:
Nays: Caputo, Kuhn, Paxton, Tucker and Yeager.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Hrutkay, Iaquinta, Perdue,
Schadler, Shelton and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
bill was then postponed.
Delegate Ferrell announced that he was absent when the votes were taken on Roll Nos. 783 through 789, and that had he been present, he would have voted "Yea" thereon.
S. B. 2015, Relating to receipt and disbursement of funds for construction of veterans'
nursing home; on second reading, coming up in regular order, was read a second time and ordered
to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 795), and there were--yeas 91, nays
none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler,
Shelton and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 796),
and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being
as follows:
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler,
Shelton and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 2015) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 797), and there were--yeas 91, nays
none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler,
Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 2015) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
At 9:38 a.m., on motion of Delegate Staton, the House of Delegates recessed until 10:00
a.m., and reconvened at that time.
* * * * * * * * * *
Delegate Proudfoot announced that he was absent when the votes were taken on Roll Nos.
752 through 759, and that had he been present, he would have voted "Yea" thereon.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates then
returned to the Eleventh Order of Business, for the purpose of considering bills on Third Reading.
House Calendar
Third Reading
H. B. 200, Relating to workers' compensation generally; on third reading, coming up in
regular order, with a committee amendment pending and with the further right to amend, was
reported by the Clerk.
An amendment, recommended by the Select Committee on Workers' Compensation
Revision, was reported by the Clerk as follows:
By striking out everything following the enacting clause and inserting in lieu thereof the
following:
That sections one, two, three, four, five, six and seven, article three, chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that
section five-b, article two, chapter twenty-three of said code be repealed; that section seven, article
four-a of said chapter be repealed; that section thirty-three-d, article three, chapter five-a of said
code be amended and reenacted; that sections four and five, article three, chapter five-b of said code
be amended and reenacted; that section one, article two, chapter five-f of said code be amended and
reenacted; that section seven, article twelve, chapter eleven of said code be amended and reenacted;
that section four, article one-a, chapter twelve of said code be amended and reenacted; that section
six, article six of said chapter be amended and reenacted; that section ten, article two, chapter fifteen
of said code be amended and reenacted; that section fifteen, article one, chapter sixteen of said code
be amended and reenacted; that section three, article twenty-nine-d of said chapter be amended and
reenacted; that section three, article thirty-six of said chapter be amended and reenacted; that section
twenty-six, article nine-a, chapter eighteen of said code be amended and reenacted; that section
twelve-a, article ten-a of said chapter be amended and reenacted; that section two, article ten-k of
said chapter be amended and reenacted; that section three, article three-a, chapter twenty-one of said
code be amended and reenacted; that section four, article one, chapter twenty-one-a of said code be
amended and reenacted; that sections six, six-c and thirteen, article two of said chapter be amended
and reenacted; that section eleven, article ten of said chapter be amended and reenacted; that section
eight, article three, chapter twenty-two of said code be amended and reenacted; that sections one,
two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen
and eighteen, article one, chapter twenty-three of said code be amended and reenacted; that said
article be further amended by adding thereto eight new sections, designated sections one-a, one-b,
one-c, one-d, one-e, one-f, four-a and nineteen; that sections one, one-c, one-d, two, three, four, five,
five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen, article two of said chapter be amended and reenacted; that section one, article two-a of said chapter
be amended and reenacted; that sections one, two and three, article two-b of said chapter be
amended and reenacted; that sections one, one-a, two, three and five, article three of said chapter
be amended and reenacted; that said article be further amended by adding thereto a new section,
designated section six; that sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-
c, four, five, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c, nine,
nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen,
eighteen, twenty, twenty-two, twenty-three, twenty-four and twenty-five, article four of said chapter
be amended and reenacted; that said article be further amended by adding thereto a new section,
designated section one-g; that sections one, three, five, six and eight, article four-a of said chapter
be amended and reenacted; that sections two, five, six and seven, article four-b of said chapter be
amended and reenacted; that said article be further amended by adding thereto a new section,
designated section eight-b; that sections two, three, four and five, article four-c of said chapter be
amended and reenacted; that sections one, two, three, four, five, six, seven, eight, nine, ten, eleven,
twelve, fifteen, seventeen and eighteen, article five of said chapter be amended and reenacted; that
said article be further amended by adding thereto two new sections, designated sections ten-a and
fifteen-a; that section two, article eight, chapter twenty-six of said code be amended and reenacted;
that sections one hundred twenty-five and one hundred thirty-one, article eighteen, chapter forty-
eight of said code be amended and reenacted; that chapter fifty-one of said code be amended by
adding thereto a new article, designated article one-b; and that sections twenty-four-e, twenty-four-f
and twenty-four-g, article three, chapter sixty-one of said code be amended and reenacted, all to read
as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-33d. Grounds for debarment.
Grounds for debarment are:
(a)(1) Conviction of an offense involving fraud or a felony offense in connection with
obtaining or attempting to obtain a public contract or subcontract;
(b) (2) Conviction of any federal or state antitrust statute relating to the submission of offers;
(c) (3) Conviction of an offense involving embezzlement, theft, forgery, bribery, falsification
or destruction of records, making false statements or receiving stolen property in connection with
the performance of a contract;
(d) (4) Conviction of a felony offense demonstrating a lack of business integrity or business
honesty that affects the present responsibility of the vendor or subcontractor;
(e) (5) Default on obligations owed to the state, including, but not limited to, obligations
under the West Virginia workers' compensation act, the West Virginia unemployment compensation
act and West Virginia state tax and revenue laws. For purposes of this subsection, a vendor is in
default when, after due notice, the vendor fails to submit a required payment, interest thereon or
penalty, and has not entered into a repayment agreement with the appropriate agency of the state or
has entered into a repayment agreement but does not remain in compliance with its obligations under
the repayment agreement. In the case of a vendor granted protection by order of a federal
bankruptcy court or a vendor granted an exemption under any rule of the bureau of employment
programs or the workers' compensation commission, the director may waive debarment under
section thirty-three-f of this article: Provided, That in no event may debarment be waived with
respect to any vendor who has not paid all current state obligations for at least the four most recent
calendar quarters, excluding the current calendar quarter, or with respect to any vendor who is in default on a repayment agreement with an agency of the state;
(f) (6) The vendor is not in good standing with a licensing board, in that the vendor is not
licensed when licensure is required by the law of this state, or the vendor has been found to be in
violation of an applicable licensing law after notice, opportunity to be heard and other due process
required by law; and
_____(g) (7) Violation of the terms of a public contract or subcontract for:
(1) (A) Willful failure to substantially perform in accordance with the terms of one or more
public contracts;
(2) (B) Performance in violation of standards established by law or generally accepted
standards of the trade or profession amounting to intentionally deficient or grossly negligent
performance on one or more public contracts;
(3) (C) Use of substandard materials on one or more public contracts or defects in
construction in one or more public construction projects amounting to intentionally deficient or
grossly negligent performance, even if discovery of the defect is subsequent to acceptance of a
construction project and expiration of any warranty thereunder;
(4) (D) A repeated pattern or practice of failure to perform so serious and compelling as to
justify debarment; or
(5) (E) Any other cause of a serious and compelling nature amounting to knowing and willful
misconduct of the vendor that demonstrates a wanton indifference to the interests of the public and
that caused, or that had a substantial likelihood of causing, serious harm to the public.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION
SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative
rules.
(a) The joint commission on economic development may review any procedural rules rule,
interpretive rules rule or existing legislative rules rule and make recommendations concerning such
the rules to the Legislature.
(b) The development office and the tourism commission established pursuant to article two,
of this chapter five-b of this code, the economic development authority established pursuant to
article fifteen, chapter thirty-one of this code, the bureau of employment programs established
pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission
established pursuant to article one, chapter twenty-three of this code, the workforce investment
commission established pursuant to article two-c, of this chapter five-b of this code, West Virginia
jobs investment trust, regional planning and development councils, West Virginia rural development
council, governor's office of technology and West Virginia clearinghouse for workforce education
shall each file a copy of its legislative rules with the commission as provided for herein in this
section. Each agency that proposes legislative rules in accordance to the provisions of article three,
three-a or three-b, chapter twenty-nine-a of this code relating to economic development or workforce
development shall file the rules with the joint commission at the time the rules are filed with the
secretary of state prior to the public comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
(a) The joint commission on economic development shall study the following:
(1) The feasibility of establishing common regional configurations for such purposes as local
workforce investment areas, regional educational service agencies and for all other purposes the
commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers; complete an analysis of possible regional configurations and
outline examples of other successful regional systems or networks found throughout the world. If
the study determines that the common regional configurations are feasible, the commission shall
recommend legislation establishing common regional designations for all purposes the commission
considers feasible. In making the designation of regional areas, the study shall take into
consideration, but not be limited to, the following:
(A) Geographic areas served by local educational agencies and intermediate educational
agencies;
(B) Geographic areas served by post-secondary educational institutions and area vocational
education schools;
(C) The extent to which such the local areas are consistent with labor market areas;
(D) The distance that individuals will need to travel to receive services provided in such the
local areas; and
(E) The resources of such the local areas that are available to effectively administer the
activities or programs;
(2) The effectiveness and fiscal impact of incentives for attracting and growing businesses,
especially technology-intensive companies; and
(3) A comprehensive review of West Virginia's existing economic and community
development resources and the recommendation of an organizational structure, including, but not
limited to, the reorganization of the bureau of commerce and the development office that would
allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and efficient manner the studies required
in this article, it is necessary for the joint commission to assemble and compile a tremendous amount of information. The development office will assist the joint commission in the collection and
analysis of this information. The tourism commission established pursuant to article two of this
chapter, the economic development authority established pursuant to article fifteen, chapter
thirty-one of this code, the bureau of employment programs established pursuant to article four,
chapter twenty-one-a of this code, the workers' compensation commission established pursuant to
article one, chapter twenty-three of this code, the workforce investment commission established
pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and
development councils, West Virginia rural development council, governor's office of technology
and West Virginia clearinghouse for workforce education all shall provide a copy of the agency's
annual report as submitted to the governor in accordance with the requirements set forth in section
twenty, article one, chapter five of this code to the West Virginia development office. The
development office shall review, analyze and summarize the data contained in the reports, including
its own annual report, and annually submit its findings to the joint commission on or before the
thirty-first day of December.
(c) The legislative auditor shall provide to the joint commission a copy of any and all reports
on agencies listed in subsection (b) of this section, which are required under article ten, chapter four
of this code.
(d) The joint commission shall complete the studies set forth in this section and any other
studies it the joint commission determines to undertake prior to the first day of December of each
year and may make recommendations, including recommended legislation for introduction during
the regular session of the Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter five of this code;
(2) Public employees insurance agency and public employees insurance agency advisory
board provided for in article sixteen, chapter five of this code;
(3) Governor's mansion advisory committee provided for in article five, chapter five-a of
this code;
(4) Commission on uniform state laws provided for in article one-a, chapter twenty-nine of
this code;
(5) Education and state employees grievance board provided for in article twenty-nine,
chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in article twelve, chapter twenty-
nine of this code;
(7) Boundary commission provided for in article twenty-three, chapter twenty-nine of this
code;
(8) Public defender services provided for in article twenty-one, chapter twenty-nine of this
code;
(9) Division of personnel provided for in article six, chapter twenty-nine of this code;
(10) The West Virginia ethics commission provided for in article two, chapter six-b of this
code; and
(11) Consolidated public retirement board provided for in article ten-d, chapter five of this
code.
(b) The department of commerce, labor and environmental resources and the office of
secretary of the department of commerce, labor and environmental resources are abolished. For
purposes of administrative support and liaison with the office of the governor, the following
agencies and boards, including all allied, advisory and affiliated entities, are grouped under two
bureaus and one commission as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter twenty-one of this code, which
includes:
(i) Occupational safety and health review commission provided for in article three-a, chapter
twenty-one of this code; and
(ii) Board of manufactured housing construction and safety provided for in article nine,
chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for in article one, chapter twenty-
two-a of this code. The following boards are transferred to the office of miners' health, safety and
training for purposes of administrative support and liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine safety and technical review committee
provided for in article six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification provided for in article seven, chapter
twenty-two-a of this code; and
(iii) Mine inspectors' examining board provided for in article nine, chapter twenty-two-a of
this code;
(C) The West Virginia development office provided for in article two, chapter five-b of this
code, which includes:
(i) Economic development authority provided for in article fifteen, chapter thirty-one of this
code; and
(ii) Tourism commission provided for in article two, chapter five-b of this code and the office
of the tourism commissioner;
(D) Division of natural resources and natural resources commission provided for in article
one, chapter twenty of this code. The Blennerhassett historical state park provided for in article
eight, chapter twenty-nine of this code is under the division of natural resources;
(E) Division of forestry provided for in article one-a, chapter nineteen of this code;
(F) Geological and economic survey provided for in article two, chapter twenty-nine of this
code;
(G) Water development authority and board provided for in article one, chapter twenty-two-c
of this code;
(2) Bureau of employment programs provided for in article one, chapter twenty-one-a of this
code; and
_____(3) Workers' compensation commission provided for in article one, chapter twenty-three of
this code.
(c) Bureau of environment is abolished and the following agencies and boards, including all
allied, advisory and affiliated entities, are transferred to the department of environmental protection
for purposes of administrative support and liaison with the office of the governor:
(1) Air quality board provided for in article two, chapter twenty-two-b of this code;
(2) Solid waste management board provided for in article three, chapter twenty-two-c of this code;
(3) Environmental quality board, or its successor board, provided for in article three, chapter
twenty-two-b of this code;
(4) Surface mine board provided for in article four, chapter twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for in article seven, chapter twenty-
two-c of this code;
(6) Shallow gas well review board provided for in article eight, chapter twenty-two-c of this
code; and
(7) Oil and gas conservation commission provided for in article nine, chapter twenty-two-c
of this code.
(d) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter ten of this code;
(2) Educational broadcasting authority provided for in article five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational education provided for in article
three-a, chapter eighteen-b of this code;
(4) Division of culture and history provided for in article one, chapter twenty-nine of this
code; and
(5) Division of rehabilitation services provided for in section two, article ten-a, chapter
eighteen of this code.
(e) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Division of human services provided for in article two, chapter nine of this code;
(3) Bureau for public health provided for in article one, chapter sixteen of this code;
(4) Office of emergency medical services and advisory council thereto provided for in article
four-c, chapter sixteen of this code;
(5) Health care cost review authority provided for in article twenty-nine-b, chapter sixteen
of this code;
(6) Commission on mental retardation provided for in article fifteen, chapter twenty-nine of
this code;
(7) Women's commission provided for in article twenty, chapter twenty-nine of this code;
and
(8) The child support enforcement division provided for in chapter forty-eight of this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the department of military affairs and public safety:
(1) Adjutant general's department provided for in article one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen of this code;
(3) Military awards board provided for in article one-g, chapter fifteen of this code;
(4) West Virginia state police provided for in article two, chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board provided for in article five,
chapter fifteen of this code and emergency response commission provided for in article five-a of said
chapter;
(6) Sheriffs' bureau provided for in article eight, chapter fifteen of this code;
(7) Division of corrections provided for in chapter twenty-five of this code;
(8) Fire commission provided for in article three, chapter twenty-nine of this code;
(9) Regional jail and correctional facility authority provided for in article twenty, chapter
thirty-one of this code;
(10) Board of probation and parole provided for in article twelve, chapter sixty-two of this
code; and
(11) Division of veterans' affairs and veterans' council provided for in article one, chapter
nine-a of this code.
(g) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven of this code;
(2) Racing commission provided for in article twenty-three, chapter nineteen of this code;
(3) Lottery commission and position of lottery director provided for in article twenty-two,
chapter twenty-nine of this code;
(4) Agency of insurance commissioner provided for in article two, chapter thirty-three of this
code;
(5) Office of alcohol beverage control commissioner provided for in article sixteen, chapter
eleven of this code and article two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for in article three, chapter thirty-
one-a of this code;
(7) Lending and credit rate board provided for in chapter forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter thirty-one-a of this code.
(h) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a, chapter seventeen of this code;
(2) Parkways, economic development and tourism authority provided for in article sixteen-a,
chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article two, chapter seventeen-b of this
code;
(5) Aeronautics commission provided for in article two-a, chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen, chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter seventeen of this code.
(i) Except for powers, authority and duties that have been delegated to the secretaries of the
departments by the provisions of section two of this article, the existence of the position of
administrator and of the agency and the powers, authority and duties of each administrator and
agency are not affected by the enactment of this chapter.
(j) Except for powers, authority and duties that have been delegated to the secretaries of the
departments by the provisions of section two of this article, the existence, powers, authority and
duties of boards and the membership, terms and qualifications of members of such the boards are
not affected by the enactment of this chapter and all boards which are appellate bodies or were
otherwise established to be independent decisionmakers will not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(k) Any department previously transferred to and incorporated in a department created in
section two, article one of this chapter by prior enactment of this section in chapter three, acts of the
Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent
amendments, means a division of the appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created in section two, article one of this
chapter, the reference means a division of the appropriate department, and any reference to a
division of a department so transferred and incorporated means a section of the appropriate division
of the department.
(l) When an agency, board or commission is transferred under a bureau or agency other than
a department headed by a secretary pursuant to this section, that transfer is solely for purposes of
administrative support and liaison with the office of the governor, a department secretary or a
bureau. The bureaus created by the Legislature upon the abolishment of the department of
commerce, labor and environmental resources in the year one thousand nine hundred ninety-four
will be headed by a commissioner or other statutory officer of an agency within that bureau.
Nothing in this section extends the powers of department secretaries under section two of this article
to any person other than a department secretary and nothing limits or abridges the statutory powers
and duties of statutory commissioners or officers pursuant to this code.
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-7. Display of registration certificate; injunction; public information, reciprocal
exchange of information.
Any person to whom a certificate of registration shall be has been issued under the
provisions of section four of this article shall keep such the certificate posted in a conspicuous position in the place where the privilege of such the business is exercised. Such The certificate of
registration shall be produced for inspection whenever required by the tax commissioner or by any
law-enforcement officers of this state, county or municipality wherein in which the privileges to
conduct business are exercised.
No injunction shall issue from any court in the state enjoining the collection of any business
registration certificate tax required herein in this section; and any person claiming that any business
certificate is not due, for any reason, shall pay the same tax under protest and petition the tax
commissioner for a refund in accordance with the provisions of section fourteen, article ten of this
chapter.
If any person engaging in or prosecuting any business, or trade, contrary to any other
provisions of this article, whether without obtaining a business certificate therefor before
commencing the same, or by continuing the same after the termination of the effective period of any
such the business certificate, the circuit court, or the judge thereof in vacation, of the county in
which such the violation occurred shall, upon proper application in the name of the state, and after
ten days' written notice thereof to such person, grant an injunction prohibiting such that person from
continuing such the business, activity or trade until he or she has fully complied with the provisions
of this article. The remedy provided in this section shall be is in addition to all other penalties and
remedies provided by law.
The tax commissioner shall make available, when requested, information as to whether a
person is registered to do business in the state of West Virginia.
The tax commissioner shall deliver to the commissioner of the bureau of employment
programs and the executive director of the workers' compensation commission the information
contained in the business franchise registration certificate when this information is used to implement and administer a single point of registration program for persons engaging in any
business activity in the state of West Virginia. The single point of registration program shall provide
that, once an individual has received a business franchise registration certificate, the tax
commissioner shall notify the commissioner of the bureau of employment programs and the
executive director of the workers' compensation commission of the names, addresses and other
identifying information of that individual or entity. Upon receiving this information the
commissioner of the bureau of employment programs and the executive director of the workers'
compensation commission shall contact all businesses receiving a business franchise registration
certificate and provide all necessary forms and paperwork to register a business within the bureau
and commission pursuant to subsection (b), section six-b, article two, chapter twenty-one-a of this
code and subsection (c), section two, article two, chapter twenty-three of this code.
Notwithstanding the provisions of section five, article ten of this chapter, the tax
commissioner may enter into a reciprocal agreement with the governor's office of community and
industrial development and other departments or agencies of this state for the exchange of
information contained in the application for a business franchise registration certificate filed under
section four of this article when the purpose for the exchange is to implement and administer a
single-point of registration program for persons engaging in business in this state. Such The other
departments and agencies shall have authority to may enter into a reciprocal exchange agreement
for this purpose notwithstanding any provision of this code to the contrary.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1A. WEST VIRGINIA SMALL BUSINESS LINKED DEPOSIT PROGRAM.
§12-1A-4. Applications for loan priority; loan package; counseling.
(a) An eligible lending institution that desires to participate in the linked deposit program shall accept and review loan applications from eligible small businesses that have been prepared
with the advice of the small business development center. The lending institution shall apply all
usual lending standards to determine the credit worthiness of each eligible small business and
whether the loan application meets the criteria established in this article.
(b) An eligible small business shall certify on its loan application that: (1) The small
business is in good standing with the state tax division, the workers' compensation commission and
the bureau of employment programs as of the date of the application; (2) the linked deposit loan will
be used to create new jobs or preserve existing jobs and employment opportunities; and (3) the
linked deposit loan shall not be used to refinance an existing debt.
(c) In considering which eligible small businesses should receive linked deposit loans, the
eligible lending institution shall give priority to the economic needs of the area in which the business
is located, the number of jobs to be created and preserved by the receipt of the loan, the reasonable
ability of the small business to repay the loan and other factors considered appropriate by the
eligible financial institution.
(d) A small business receiving a linked deposit loan shall receive supervision and counseling
provided by the small business development center when applying for the loan. The services
available from the small business development center include eligibility certification, business
planning, quarterly financial statement review and loan application assistance. The state tax
division, and the bureau of employment programs and the workers' compensation commission shall
provide the small business development center with information as to the standing of each small
business loan applicant. The small business development center shall include these certifications
with the loan application.
(e) The eligible financial institution shall forward to the treasurer a linked deposit loan package in the form and manner prescribed by the treasurer. The treasurer shall forward notice of
approval of the loan to the small business development center at the same time it is furnished to the
eligible financial institution.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-6. Annual audits; reports and information to constitutional and legislative officers,
council of finance and administration, consolidated public retirement board, workers'
compensation fund and coal-workers' pneumoconiosis fund; statements and reports
open for inspection.
(a) The board shall cause an annual financial and compliance audit of the assets managed
by the board to be made by a certified public accounting firm which has a minimum staff of ten
certified public accountants and which is a member of the American institute of certified public
accountants and, if doing business in West Virginia, a member of the West Virginia society of
certified public accountants. The financial and compliance audit shall be made of the board's books,
accounts and records with respect to its receipts, disbursements, investments, contracts and all other
matters relating to its financial operations. Copies of the audit report shall be furnished to the
governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates,
council of finance and administration and consolidated public retirement board.
(b) The board shall produce monthly financial statements for the assets managed by the
board and cause them to be delivered to each member of the board and the executive secretary of
the consolidated public retirement board as established in sections one and two, article ten-d, chapter
five of this code and to the commissioner of the bureau of employment programs executive director
of the workers' compensation commission as administrator of the workers' compensation fund and
coal-workers' pneumoconiosis fund as established provided in section one one-b, article one, chapter twenty-three of this code and section one, article three of said chapter and section seven, article four-
b of said chapter.
(c) The board shall deliver in each quarter to the council of finance and administration and
the consolidated public retirement board a report detailing the investment performance of the 401(a)
plans.
(d) The board shall cause an annual audit of the reported returns of the assets managed by
the board to be made by an investment consulting or a certified public accounting firm meeting the
criteria set out in subsection (a) of this section. The board shall furnish copies of the audit report
to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of
Delegates, council of finance and administration and consolidated public retirement board.
(e) The board shall provide any other information requested in writing by the council of
finance and administration.
(f) All statements and reports with respect to participant plans required in this section shall
be available for inspection by the members and beneficiaries and designated representatives of the
participant plans.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-10. Uniforms; authorized equipment, weapons and supplies; local headquarters;
quarters for members; life insurance; medical and hospital fees for injuries and
illnesses of members incurred in line of duty.
(a) The standard uniform to be used by the West Virginia state police after the effective date
of this article shall be as follows: Forestry green blouse with West Virginia state police emblem on
sleeve; black shoulder strap one-inch black stripe around sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe down the side; trousers (slacks) with one-inch
black stripe down the side for officers and clerks regularly enlisted in the state police; forestry green
shirts with West Virginia state police emblem on sleeve; black shoulder straps; forestry green
mackinaw with West Virginia state police emblem on sleeve; black shoulder straps; one-inch black
stripe around sleeve four inches from end of sleeve; campaign hat of olive drab color; black Sam
Browne belt with holster; black leggings and shoes; the officer's uniform will have one and
one-quarter inch black stripe around the sleeve of blouse and mackinaw four inches from end of
sleeve circumposed with one-half inch gold braid, also black collars on blouse, with two silver
shoulder bars for captains, one silver shoulder bar for first lieutenant, one gold shoulder bar for
second lieutenant. For noncommissioned officers the uniform blouse and shirt will have thereon
black chevrons of the appropriate rank.
(b) The superintendent shall establish the weapons and enforcement equipment which shall
be are authorized for use by members of the state police and shall provide for periodic inspection
of such the weapons and equipment. He or she shall provide for the discipline of members using
other than authorized weapons and enforcement equipment.
(c) The superintendent shall provide the members of the state police with suitable arms and
weapons and, when he deems or she considers it necessary, with suitably equipped automobiles,
motorcycles, watercraft, airplanes and other means of conveyance to be used by the West Virginia
state police, the governor, and other officers and executives in the discretion of the governor, in
times of flood, disaster and other emergencies, for traffic study and control, criminal and safety
work, and in other matters of official business. He or she shall also provide the standard uniforms
for all members of the state police, for officers, noncommissioned officers and troopers herein
provided for in this section. All uniforms and all arms, weapons and other property furnished the members of the state police by the state of West Virginia shall be are and remain the property of the
state.
(d) The superintendent is authorized to may purchase and maintain on behalf of members
group life insurance not to exceed the amount of five thousand dollars on behalf of each member.
(e) The superintendent is authorized to may contract and furnish at state police expense
medical and hospital services for treatment of illness or injury of a member which shall be
determined by the superintendent to have been incurred by such the member while engaged in the
performance of duty and from causes beyond control of such the members. Notwithstanding any
other provision of this code, the superintendent shall have has the right of subrogation in any civil
action or settlement brought by or on behalf of a member in relation to any act by another which
results in the illness, injury or death of a member. To this end, the superintendent is hereby
authorized to may initiate such an action on behalf of the state police in order to recover the costs
incurred in providing medical and hospital services for the treatment of a member resulting from
injury or illness originating in the performance of official duties. This subsection shall not affect
the power of a court to apply ordinary equitable defenses to the right of subrogation.
The superintendent is further empowered to may also consult with the commissioner of the
bureau of employment programs executive director of the workers' compensation commission in
an effort to defray the cost of medical and hospital services. In no case will the compensation
rendered to health care providers for medical and hospital services exceed the then current rate
schedule in use by the bureau of employment programs, workers' compensation division workers'
compensation commission.
Third-party reimbursements received by the superintendent after the expiration of the fiscal
year in which the injury, illness or death occurred will be deposited to a nonexpiring special revenue account. Funds deposited to this account may be used solely for defraying the costs of medical or
hospital services rendered to any sworn members as a direct result of an illness, injury or death
resulting from the performance of official duties.
(f) The superintendent shall establish and maintain local headquarters at such those places
in West Virginia as that are in his or her judgment suitable and proper to render the West Virginia
state police most efficient for the purpose of preserving the peace, protecting property, preventing
crime, apprehending criminals and carrying into effect all other provisions of this article. The
superintendent shall provide, by acquisition, lease or otherwise, for local headquarters, for housing
and quarters for the accommodation of the members of the West Virginia state police, and for any
other facilities necessary or useful for the effective operation of the West Virginia state police and
shall provide all equipment and supplies necessary for the members of the West Virginia state police
to perform their duties.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-15. Investigations and hearings; power to administer oaths, subpoena witnesses, etc.;
use of information and material acquired.
(a) The secretary, the commissioner, any officer or employee of the department designated
by the secretary, or any other individual designated by the secretary may hold investigations,
inquiries and hearings concerning matters covered by the laws of this state pertaining to public
health and within the authority and the rules and orders of the secretary. Hearings shall be open to
the public and shall be held upon any call or notice considered advisable by the secretary.
(b) Each individual designated to hold any inquiry, investigation or hearing shall have the
power to may administer oaths and affirmations, certify to all official acts, issue subpoenas and order the attendance and testimony of witnesses in the production of papers, books and documents.
In case of the failure of any person to comply with any subpoena or order issued under the authority
of this section, the secretary or his or her authorized representative may invoke the aid of any circuit
court of this state. The court may thereupon order that person to comply with the requirements of
the subpoena order or to give evidence as to the matter in question. Failure to obey the order of the
court may be punished by the court as a contempt of court.
(c) Subject to the provisions of subsections (a) and (b) of this section, the secretary may in
his or her discretion make available to appropriate federal, state and municipal agencies information
and material developed in the course of its investigation and hearings: Provided, That information
obtained from studies or from any investigation made or hearing held pursuant to the provisions of
this article may not be admissible in evidence in any action at law to recover damages for personal
injury or in any action under the workers' compensation act, but the information, if available, shall
be furnished upon request to the commissioner of the bureau of employment programs executive
director of the workers' compensation commission for the sole purpose of adjusting claims
presented to the commissioner commission.
ARTICLE 29D. STATE HEALTH CARE.
§16-29D-3. Agencies to cooperate and to provide plan; contents of plan; reports to
Legislature; late payments by state agencies and interest thereon.
(a) All departments and divisions of the state, including, but not limited to, the bureau of
employment programs; the division of health and the division of human services within the
department of health and human resources; the public employees insurance agency within the
department of administration; the division of rehabilitation services; the workers' compensation
commission; or such the other department or division as shall supervise or provide rehabilitation; and the university of West Virginia board of trustees, as the governing board for the state's medical
schools, are authorized and directed to cooperate in order, among other things, to ensure the quality
of the health care services delivered to the beneficiaries of such the departments and divisions and
to ensure the containment of costs in the payment for such services.
(b) It is expressly recognized that no other entity may interfere with the discretion and
judgment given to the single state agency which administers the state's medicaid program. Thus,
it is the intention of the Legislature that nothing contained in this article shall be interpreted,
construed or applied to interfere with the powers and actions of the single state agency which, in
keeping with applicable federal law, shall administer the state's medicaid program as it perceives
to be in the best interest of that program and its beneficiaries.
(c) Such The departments and divisions shall develop a plan or plans to ensure that a
reasonable and appropriate level of health care is provided to the beneficiaries of the various
programs including the public employees insurance agency and the workers' compensation fund,
the division of rehabilitation services and, to the extent permissible, the state medicaid program.
The plan or plans may include, among other things, and the departments and divisions are hereby
authorized to enter into:
(1) Utilization review and quality assurance programs;
(2) The establishment of a schedule or schedules of the maximum reasonable amounts to be
paid to health care providers for the delivery of health care services covered by the plan or plans.
Such a The schedule or schedules may be either prospective in nature or cost reimbursement in
nature, or a mixture of both: Provided, That any payment methods or schedules for institutions
which provide inpatient care shall be institution-specific and shall, at a minimum, take into account
a disproportionate share of medicaid, charity care and medical education: Provided, however, That in no event may any rate set in this article for an institutional health care provider be greater than
such the institution's current rate established and approved by the health care cost review authority
pursuant to article twenty-nine-b of this chapter;
(3) Provisions for making payments in advance of the receipt of health care services by a
beneficiary, or in advance of the receipt of specific charges for such the services, or both;
(4) Provisions for the receipt or payment of charges by electronic transfers;
(5) Arrangements, including contracts, with preferred provider organizations; and
(6) Arrangements, including contracts, with particular health care providers to deliver health
care services to the beneficiaries of the programs of the departments and divisions at agreed-upon
rates in exchange for controlled access to the beneficiary populations.
(d) The director of the public employees insurance agency shall contract with an independent
actuarial company for a review every four years of the claims experience of all governmental entities
whose employees participate in the public employees insurance agency program, including, but not
limited to, all branches of state government, all state departments or agencies (including those
receiving funds from the federal government or a federal agency), all county and municipal
governments or any other similar entities for the purpose of determining the cost of providing
coverage under the program, including administrative cost, to each such governmental entity.
(e) Nothing in this section shall be construed to give or reserve to the Legislature any further
or greater power or jurisdiction over the operations or programs of the various departments and
divisions affected by this article than that already possessed by the Legislature in the absence of this
article.
(f) For the purchase of health care or health care services by a health care provider
participating in a plan under this section on or after the first day of September, one thousand nine hundred eighty-nine, by the public employees insurance agency, the division of rehabilitation
services and the division of workers' compensation workers' compensation commission, a state
check shall be issued in payment thereof within sixty-five days after a legitimate uncontested
invoice is actually received by such the division, commission or agency. Any state check issued
after sixty-five days shall include interest at the current rate, as determined by the state tax
commissioner under the provisions of section seventeen-a, article ten, chapter eleven of this code.,
which The interest shall be calculated from the sixty-sixth day after such the invoice was actually
received by the division
commission or agency until the date on which the state check is mailed to the vendor.
ARTICLE 36. NEEDLESTICK INJURY PREVENTION.
§16-36-3. Needlestick injury prevention advisory committee.
(a) There is established a needlestick injury prevention advisory committee to advise the
director in the development of rules required under this article.
(b) The committee shall meet at least four times a year for the initial two years after the
effective date of this article and on the call of the director thereafter. The director shall serve as the
chair and shall appoint thirteen members, one representing each of the following groups:
(1) A representative of the health insurance industry;
(2) The commissioner of the bureau of employment programs executive director of the
workers' compensation commission, or his or her designee from the division of workers'
compensation;
(3) Five nurses who work primarily providing direct patient care in a hospital or nursing
home, at least one of which is employed in a state-operated facility;
(4) A phlebotomist employed in a hospital or nursing home;
(5) Two administrators of different hospitals operating within the state;
(6) A director of nursing employed in a nursing home within the state;
(7) A licensed physician practicing in the state; and
(8) An administrator of a nursing home operating within the state.
(c) Members of the committee serve without compensation. Each member shall be
reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in
the discharge of official duties, in a manner consistent with guidelines of the travel management
office of the department of administration.
(d) A majority of all members constitutes a quorum for the transaction of all business.
Members serve for two-year terms and may not serve for more than two consecutive terms.
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-26. Allowance for workers' compensation for unpaid student work-based learning.
(a) The workers' compensation division commission shall create a classification and
calculate a base premium tax rate for students participating in an unpaid work-based learning
experience off school premises as a part of the school curriculum with employers other than the
county board of education. The workers' compensation division commission shall report to the state
department of education:
(1) The amount of the base premium tax rate for the class; and
(2) The amount of wages per student to be used to provide the minimum weekly benefits
required by section six, article four, chapter twenty-three of this code.
(b) The state department of education shall communicate the amount of the premium to the
governor and Legislature by the first day of December of each year, beginning the first day of December, one thousand nine hundred ninety-nine.
(c) The base premium tax rate reported to the state department of education shall be that
which was published by the workers' compensation division commission prior to the first day of the
immediately preceding July. That premium tax rate, however, shall not be implemented by the
workers' compensation division until the first day of January and shall remain in effect through the
last day of the next December. The workers' compensation division commission shall make no
merit rate adjustment, as otherwise provided for in paragraph (A), subdivision (1), subsection (a),
section four, article two, chapter twenty-three of this code, for the members of the class required to
be created by subsection (a) of this section.
(d) Notwithstanding anything to the contrary in any rules adopted to implement the
provisions of section four, article two, chapter twenty-three of this code and for the sole purposes
of this section, the workers' compensation division commission shall permit any county board of
education affected by this section to be classified in accordance with this section and to be also
classified as otherwise required by any rules adopted to implement the provisions of section four,
article two, chapter twenty-three of this code.
(e) Subject to an appropriation by the Legislature, funds shall be provided to the department
of education to distribute to the county boards. If the appropriation is less than the total premium
calculated, the county boards, individually, shall either reduce the number of students participating
in work-based learning experiences off school premises or the county boards shall pay the difference
between the amount of the premium calculated by the workers' compensation division commission
and the amount allocated to the county board by the department of education.
ARTICLE 10A. REHABILITATION SERVICES.
§18-10A-12a. Workers' compensation for clients participating in unpaid work-based training programs.
(a) The workers' compensation division commission shall create a classification and
calculate a base premium tax rate for clients of the division of rehabilitation services participating
in unpaid work-based training programs within integrated community-based settings. The workers'
compensation division commission shall report to the division of rehabilitation services:
(1) The amount of the base premium tax rate for the class; and
(2) The hourly wages per client to be used to provide the minimum weekly benefits required
by section six, article four, chapter twenty-three of this code.
(b) The base premium tax rate reported annually to the division of rehabilitation services by
the workers' compensation division commission shall not be effective until the first day of July and
shall remain in effect through the last day of the next June.
(c) The division of rehabilitation services and the participating entity shall be considered the
joint employers of record of the clients while the clients are participating in unpaid work-based
training programs in integrated community-based settings: Provided, That the participating entity
shall not be held responsible for any liability due the workers' compensation division commission.
Such The clients shall be considered to be paid the amount of wages sufficient to provide the
minimum workers' compensation weekly benefits required by section six, article four, chapter
twenty-three of this code.
ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY
REHABILITATION FUND ACT.
§18-10K-2. Board created, membership, terms, officers and staff.
(a) There is hereby established the West Virginia traumatic brain and spinal cord injury
rehabilitation fund board.
(b) The board shall consist of twenty-three members. The members shall include:
(1) The secretary of the department of education and the arts, ex officio, or his or her
designee;
(2) The secretary of health and human resources, ex officio, or his or her designee;
(3) The state superintendent of schools, ex officio, or his or her designee;
(4) The secretary of the department of military affairs and public safety, ex officio, or his or
her designee;
(5) The director of the bureau of behavioral health within the department of health and
human resources, ex officio, or his or her designee;
(6) The director of the division of rehabilitation services, ex officio, or his or her designee;
(7) The director of the bureau of medical services, ex officio, or his or her designee;
(8) The director of the office of emergency services, ex officio, or his or her designee;
(9) The commissioner of the bureau of employment programs executive director of the
workers' compensation commission, ex officio, or his or her designee;
(10) Seven members appointed by the governor to represent public and private health
organizations or other disability coalitions or advisory groups; and
(11) Seven members appointed by the governor who are either survivors of traumatic brain
or spinal cord injury or family members of persons with traumatic brain or spinal cord injury.
(c) The citizen members shall be appointed by the governor for terms of three years, except
that of the members first appointed, two of the representatives of public and nonprofit private health
organizations, disability coalitions or advisory groups and two of the representatives of survivors
or family members of persons with traumatic brain or spinal cord injuries shall serve for terms of
one year, two of the representatives of each of those respective groups shall serve for terms of two years, and the remaining three representatives of each of those respective groups shall serve for
terms of three years. All subsequent appointments shall be for three years. Members shall serve
until the expiration of the term for which they have been appointed or until their successors have
been appointed and qualified. In the event of a vacancy, the governor shall appoint a qualified
person to serve for the unexpired term. No member may serve more than two consecutive three-year
terms. State officers or employees may be appointed to the board unless otherwise prohibited by
law.
(d) In the event a board member fails to attend more than twenty-five percent of the
scheduled meetings in a twelve-month period, the board may, after written notification to that
member and the secretary of education and the arts, request in writing that the governor remove the
member and appoint a new member to serve his or her unexpired term.
(e) The board shall elect from its membership a chairperson, treasurer and secretary as well
as any other officer as appropriate. The term of the chairperson is for two years in duration and he
or she cannot serve more than two consecutive terms.
CHAPTER 21. LABOR.
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21-3A-3. Division of occupational safety and health; coordination of activities with workers'
compensation commission.
(a) There is hereby created continued in the labor department a division of occupational
safety and health comprised of a subdivision for safety, a subdivision for health and such the other
subdivisions as the commissioner considers necessary. This division shall administer all matters
pertaining to occupational safety and occupational health.
(b) The labor commissioner may require the assistance of other state agencies and may enter into agreements with other state agencies and political subdivisions of the state for the
administration of this chapter.
(c) The labor commissioner shall provide for coordination between the division of
occupational safety and health and the workers' compensation commissioner commission including,
but not limited to, the establishment of standardized procedures and reportings.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§21A-1-4. Bureau of employment programs created; division; "bureau" defined.
There is created continued an agency designated as the bureau of employment programs,
composed of a division of unemployment compensation, a division of employment service, a
division of job training programs a division of workers' compensation, and such any other divisions
or units as that the commissioner determines to be are necessary.
Wherever within this chapter, or in chapter twenty-three of this code, the term "department",
"bureau" or "fund" or "workers' compensation fund" is used, it shall be taken to mean bureau of
employment programs unless otherwise indicated.
Notwithstanding the provisions of subdivisions (11) and (12), subsection (d), section one,
article two, chapter five-f of this code, the division of employment security and the division of
workers' compensation programs are hereby consolidated in an agency designated as the bureau of
employment programs. which The bureau shall be administered as part of the department of
commerce, labor and environmental resources created pursuant to subsection (b), section one, article
two, chapter five-f of this code of said section.
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT
PROGRAMS.
§21A-2-6. Powers and duties generally.
The commissioner is the executive and administrative head of the bureau and has the power
and duty to:
(1) Exercise general supervision of for the governance of the bureau and make propose rules
for the government of the bureau promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to implement the requirements of this chapter;
(2) Prescribe uniform rules pertaining to investigations, departmental hearings and
promulgate propose rules for promulgation;
(3) Supervise fiscal affairs and responsibilities of the bureau;
(4) Prescribe the qualifications of, appoint, remove and fix the compensation of the officers
and employees of the bureau, subject to the provisions of section ten, article four of this chapter,
relating to the board of review;
(5) Organize and administer the bureau so as to comply with the requirements of this chapter
and chapter twenty-three of this code and to satisfy any conditions established in applicable federal
legislation law or regulation;
(6) Make reports in such the form and containing such information as required by the United
States department of labor may, from time to time, require and comply with such provisions as any
requirements that the United States department of labor may, from time to time, find finds necessary
to assure the correctness and verification of such the reports;
(7) Make available to any agency of the United States charged with the administration of
public works or assistance through public employment, upon its request, the name, address, ordinary
occupation and employment status of each recipient of unemployment compensation, and a
statement of the recipient's rights to further compensation under this chapter;
(8) Keep an accurate and complete record of all bureau proceedings, record and file all bonds
and contracts and assume responsibility for the custody and preservation of all papers and
documents of the bureau;
(9) Sign and execute in the name of the state, by "The Bureau of Employment Programs",
any contract or agreement with the federal government, its agencies, other states, their subdivisions
or private persons;
(10) Prescribe a salary scale to govern compensation of appointees and employees of the
bureau;
(11) Make the original determination of right in claims for benefits;
(12) Make recommendations and an annual report to the governor concerning the condition,
operation and functioning of the bureau;
(13) Invoke any legal or special remedy for the enforcement of orders or the provisions of
this chapter and chapter twenty-three of this code;
(14) Exercise any other power necessary to standardize administration, expedite bureau
business, assure the establishment of fair rules and promote the efficiency of the service;
(15) Keep an accurate and complete record and prepare a monthly report of the number of
persons employed and unemployed in the state. which The report shall be made available upon
request to members of the public and press;
(16) Provide at bureau expense a program of continuing professional, technical and
specialized instruction for the personnel of the bureau;
(17) In addition to the authority granted to the commissioner by section eighteen of this
article and notwithstanding anything to the contrary elsewhere in this code, utilize any attorney
regularly employed by the bureau or the office of the attorney general to represent the commissioner, the bureau or any of its divisions in any matter. In addition, the commissioner, with the approval
of the compensation programs performance council, is authorized to retain counsel for any purpose
in the administration of this chapter or in the administration of chapter twenty-three of this code
relating to the collection of any amounts due from employers to the bureau or any of its divisions.
The compensation programs performance council shall solicit proposals from counsel who are
interested in representing the commissioner, the bureau or any of its divisions under the terms of this
subdivision. Thereafter, the compensation programs performance council shall select such attorneys
as it determines necessary to pursue the collection objectives of this subdivision.
(A) Payment to any such retained counsel may either be by hourly or other fixed fee, or as
determined by the court or administrative law judge as provided for below. A contingency fee
payable from the amount recovered by judgment or settlement for the commissioner, the bureau or
any of its divisions is only permitted, to the extent not prohibited by federal law, when the assets of
a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible.
(B) In the event that any collections action, other than a collections action against a claimant,
initiated either by retained counsel or other counsel on behalf of the commissioner, the bureau or
any of its divisions results in a judgment or settlement in favor of the commissioner, the bureau or
any of its divisions, then the court or, if there was no judicial component to the action, the
administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the
defendants or respondents to the retained or other counsel representing the commissioner, the bureau
or any of its divisions. If the court is to determine the amount of attorneys' fees, it shall include in
its determination the amount of fee that should be paid for the representation of the commissioner,
the bureau or its divisions in pursuing the administrative component, if any, of the action. The
amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use
of the following factors:
(i) The counsel's normal hourly rate or, if the counsel is an employee of the bureau or is an
employee of the office of the attorney general, such hourly rate as the court or the administrative law
judge shall determine to be customary based upon the attorney's experience and skill level;
(ii) The number of hours actually expended on the action;
(iii) The complexity of the issues involved in the action;
(iv) The degree of risk involved in the case with regard to the probability of success or
failure;
(v) The overhead costs incurred by counsel with regard to the use of paralegals and other
office staff, experts, and investigators; and
(vi) The public purpose served or public objective achieved by the attorney in obtaining the
judgment or settlement on behalf of the commissioner, the bureau or any of its divisions.
(C) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commissioner,
bureau or any of its divisions and the defendants or respondents to any administrative or judicial
action settle the action, then the parties may negotiate a separate settlement of attorneys' fees to be
paid by the defendants or respondents above and beyond the amount recovered by the commissioner,
the bureau or any its divisions. In the event that such a settlement of attorneys' fees is made, it must
be submitted to the court or administrative law judge for approval.
(D) Any attorney regularly employed by the bureau or by the office of the attorney general
may not receive any remuneration for his or her services other than such attorney's regular salary.
Any attorneys' fees awarded for such an employed attorney shall be payable to the commissioner;
(18) (17) With the approval of the compensation programs performance council created pursuant to section one, article three of this chapter, to promulgate (A) Propose for promulgation
rules under which agencies of this state shall not grant, issue or renew any contract, license, permit,
certificate or other authority to conduct a trade, profession or business to or with any employing unit
whose account is in default with the commissioner with regard to the administration of this chapter
and with regard to the administration of chapter twenty-three of this code. The term "agency"
includes any unit of state government such as officers, agencies, divisions, departments, boards,
commissions, authorities or public corporations. An employing unit is not in default if it has entered
into a repayment agreements agreement with the appropriate divisions unemployment compensation
division of the bureau and remains in compliance with its obligations under the repayment
agreements agreement.
(B) The rules shall provide that, before granting, issuing or renewing any contract, license,
permit, certificate or other authority to conduct a trade, profession or business to or with any
employing unit, the designated agencies shall review a list or lists provided by the appropriate
divisions of the bureau of employers that are in default. If the employing unit's name is not on the
list, the agency, unless it has actual knowledge that the employing unit is in default with a division
of the bureau, may grant, issue or renew the contract, license, permit, certificate or other authority
to conduct a trade, profession or business. The list may be provided to the agency in the form of a
computerized database or databases that the agency can access. Any objections to such the refusal
to issue or renew shall be reviewed under the appropriate provisions of this chapter or of chapter
twenty-three of this code, or both, whichever is applicable. The rules provided for by this
subdivision shall be promulgated pursuant to the provisions of subdivisions (b) and (c), section
seven, article three of this chapter as if they were rules being promulgated for the purposes of
chapter twenty-three of this code article three, chapter twenty-nine-a of this code. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority
under this subdivision are not operative shall continue in full force and effect until the revised rules
are promulgated and are in effect, except as provided in subdivision (6), section eight, article three,
chapter twenty-two or otherwise by law.
(C) The rules may be promulgated or implemented in phases so that specific agencies or
specific types of contracts, licenses, permits, certificates or other authority to conduct trades,
professions or businesses will be subject to the rules beginning on different dates. The presumptions
of ownership or control contained in the division of environmental protection's surface mining
reclamation regulations promulgated under the provisions of article three, chapter twenty-two of this
code are not applicable or controlling in determining the identity of employing units who are in
default for the purposes of this subdivision. The rules shall also provide a procedure allowing any
agency or interested person, after being covered under the rules for at least one year, to petition the
council bureau of employment programs to be exempt from the provisions of the rules. Rules
subjecting all applicable agencies and contracts, licenses, permits, certificates or other authority to
conduct trades, professions or businesses to the requirements of this subdivision shall be that were
promulgated no later than prior to the first day of January October, two thousand three, shall be
revised and submitted for legislative review no later than the first day of June, two thousand four;
and
(19) (18) Deposit to the credit of the appropriate special revenue account or fund,
notwithstanding any other provision of this code and to the extent allowed by federal law, all
amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees
and costs collected under the provisions of this chapter and chapter twenty-three of this code. The
amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state; and
_____(19) Enter into interagency agreements to assist in exchanging information and fulfilling the
provisions of this article.
§21A-2-6c. Payment withholding and interception.
(a) All state, county, district and municipal officers and agents making contracts on behalf
of the state of West Virginia or any political subdivision thereof shall withhold payment in the final
settlement of such contracts until the receipt of a certificate from the commissioner to the effect that
all payments, interest and penalties thereon accrued against the contractor under this chapter and
under chapter twenty-three of this code have been paid or that provisions satisfactory to the
commissioner have been made for payment. Any official violating this subsection is guilty of a
misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or county
imprisoned confined in a county or regional jail for not more than one year in the jail, or both fined
and imprisoned confined.
(b) Any agency of the state, for the limited purpose of intercepting, pursuant to section
sixteen, article five of this chapter and pursuant to section five-a, of article two, chapter twenty-three
of this code, any payment by or through the state to an employer who is in default in payment of
contributions, premiums, deposits, interest or penalties under the provisions of this chapter or of
chapter twenty-three of this code, shall assist the commissioner in collecting the payment that is due.
For this purpose, disclosure of joint delinquency and default lists of employers with respect to
unemployment compensation and workers' compensation as provided in section one-c, article one,
chapter twenty-three of this code contributions, premiums, interest, deposits or penalties is
authorized. The bureau and the workers' compensation commission may enter into an interagency
agreement to effect the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of
administration, the division of highways or any other appropriate state agency or officer.
§21A-2-13. Deputies.
For the original determination of claims under this chapter and chapter twenty-three of this
code, the commissioner shall appoint a necessary number of deputies as his or her representatives.
ARTICLE 10. GENERAL PROVISIONS.
§21A-10-11. Reporting requirements and required information; use of information; libel and
slander actions prohibited.
(a) Each employer, including labor organizations as defined in subsection (i) of this section,
shall, quarterly, submit certified reports on or before the last day of the month next following the
calendar quarter, on forms to be prescribed by the commissioner. The reports shall contain:
(1) The employer's assigned unemployment compensation registration number, the
employer's name and the address at which the employer's payroll records are maintained;
(2) Each employee's social security account number, name and the gross wages paid to each
employee, which shall include the first eight thousand dollars of remuneration and all amounts in
excess of such that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight,
article one-a of this chapter;
(3) The total gross wages paid within the quarter for employment, which includes money
wages and the cash value of other remuneration, and shall include the first eight thousand dollars
of remuneration paid to each employee and all amounts in excess of such that amount,
notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter;
and
(4) Other information as that is reasonably connected with the administration of this chapter.
(b) Information thus obtained may not be published or be open to public inspection so as to
reveal the identity of the employing unit or the individual.
(c) Notwithstanding the provisions of subsection (b) of this section, the commissioner may
provide information thus obtained to the following governmental entities for purposes consistent
with state and federal laws:
(1) The United States department of agriculture;
(2) The state agency responsible for enforcement of the medicaid program under Title XIX
of the Social Security Act;
(3) The United States department of health and human services or any state or federal
program operating and approved under Title I, Title II, Title X, Title XIV or Title XVI of the Social
Security Act;
(4) Those agencies of state government responsible for economic and community
development; secondary, post-secondary and vocational education; vocational rehabilitation,
employment and training, including, but not limited to, the administration of the Perkins Act and
the Job Training and Partnership Act;
(5) The tax division, but only for the purposes of collection and enforcement;
(6) The division of labor for purposes of enforcing the wage bond and the contractor
licensing provisions of chapter twenty-one of this code;
(7) Any agency of this or any other state, or any federal agency, charged with the
administration of an unemployment compensation law or the maintenance of a system of public
employment offices;
(8) Any claimant for benefits or any other interested party to the extent necessary for the
proper presentation or defense of a claim; and
(9) The division of workers' compensation commission for purposes of collection and
enforcement: Provided, That the division of workers' compensation commission shall provide
similar information to the other divisions of the bureau of employment programs.
(d) The agencies or organizations which receive information under subsection (c) of this
section shall agree that the information shall remain confidential so as not to reveal the identity of
the employing unit or the individual consistent with the provisions of this chapter.
(e) The commissioner may, before furnishing any information permitted under this section,
require that those who request the information shall reimburse the bureau of employment programs
for any cost associated therewith for furnishing the information.
(f) The commissioner may refuse to provide any information requested under this section
if the agency or organization making the request does not certify that it will comply with the state
and federal law protecting the confidentiality of the information.
(g) A person who violates the confidentiality provisions of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than
two hundred dollars, or imprisoned confined in a county or regional jail not longer than ninety days,
or both.
(h) No action for slander or libel, either criminal or civil, shall be predicated upon
information furnished by any employer or any employee to the commissioner in connection with
the administration of any of the provisions of this chapter.
(i) For purposes of subsection (a) of this section, the term "labor organization" means any
organization of any kind, or any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. It includes any entity, also known as a hiring hall, which is used by the
organization and an employer to carry out requirements described in 29 U. S. C. §158(f)(3) of an
agreement between the organization and the employer.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in
interest; duration of permits; proof of insurance; termination of permits; permit fees.
No person may engage in surface-mining operations unless such person he or she has first
obtained a permit from the director in accordance with the following:
(1) All permits issued pursuant to the requirements of this article shall be issued for a term
not to exceed five years: Provided, That if the applicant demonstrates that a specified longer term
is reasonably needed to allow the applicant to obtain necessary financing for equipment and the
opening of the operation, and if the application is full and complete for such the specified longer
term, the director may extend a permit for such a longer term: Provided, however, That subject to
the prior approval of the director, with such the approval being subject to the provisions of
subsection (c), section eighteen of this article, a successor in interest to a permittee who applies for
a new permit, or transfer of a permit, within thirty days of succeeding to such the interest, and who
is able to obtain the bond coverage of the original permittee, may continue surface-mining and
reclamation operations according to the approved mining and reclamation plan of the original
permittee until such the successor's permit application or application for transfer is granted or
denied.
(2) Proof of insurance is required on an annual basis.
(3) A permit terminates if the permittee has not commenced the surface-mining operations covered by such the permit within three years of the date the permit was issued: Provided, That the
director may grant reasonable extensions of time upon a timely showing that such the extensions are
necessary by reason of litigation precluding such commencement, or threatening substantial
economic loss to the permittee, or by reason of conditions beyond the control and without the fault
or negligence of the permittee: Provided, however, That with respect to coal to be mined for use
in a synthetic fuel facility or specific major electric generating facility, the permittee shall be
deemed considered to have commenced surface-mining operations at such the time as the
construction of the synthetic fuel or generating facility is initiated.
(4) Each application for a new surface-mining permit filed pursuant to this article shall be
accompanied by a fee of one thousand dollars. All permit fees and renewal fees provided for in this
section or elsewhere in this article shall be collected by the director and deposited with the treasurer
of the state of West Virginia to the credit of the operating permit fees fund and shall be used, upon
requisition of the director, for the administration of this article.
(5) Prior to the issuance of any permit, the director shall ascertain from the commissioner
of the division of labor whether the applicant is in compliance with section fourteen, article five,
chapter twenty-one of this code. Upon issuance of the permit, the director shall forward a copy to
the commissioner of the division of labor, who shall assure continued compliance under such the
permit.
(6) (A) Prior to the issuance of any permit the director shall ascertain from the commissioner
of the bureau of employment programs and the executive director of the workers' compensation
commission whether the applicant is in compliance with the provisions of section six-c, article two,
chapter twenty-one-a of this code and section five, article two, chapter twenty-three of this code with
regard to any required subscription to the unemployment compensation fund or to the workers' compensation fund, the payment of premiums and other charges to the fund, the timely filing of
payroll reports and the maintenance of an adequate premium deposit deposits. If the applicant is
delinquent or defaulted, or has been terminated by the bureau or the commission, then the permit
shall not be issued until the applicant returns to compliance or is restored by the workers'
compensation division bureau or the commission under a reinstatement agreement: Provided, That
in all such inquiries the commissioner of the bureau of employment programs and the executive
director of the workers' compensation commission shall make response to the division of
environmental protection within fifteen calendar days; otherwise, failure to respond timely shall be
is considered to indicate the applicant is in compliance and such the failure will not be used to
preclude issuance of the permit.
(B) It is a requirement of this article that each operator maintain continued compliance with
the provisions of section five, article two, chapter twenty-three and section six-c, article two, chapter
twenty-one-a of this code and provide proof of compliance to the director on an annual a quarterly
basis.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
(a) The commissioner of the bureau of employment programs appointed under the provisions
of section one, article two, chapter twenty-one-a of this code, has the sole responsibility for the
administration of this chapter except for such matters as are entrusted to the compensation programs
performance council created pursuant to section one, article three, chapter twenty-one-a of this code.
In the administration of this chapter, the commissioner shall exercise all the powers and duties
described in this chapter and in article two, chapter twenty-one-a of this code.
(b) The commissioner is authorized to promulgate rules and regulations to implement the
provisions of this chapter.
(c) The commissioner shall have an official seal for the authentication of orders and
proceedings, upon which seal shall be engraved the words "West Virginia Commissioner of
Employment Programs" and such other design as the commissioner may prescribe. The courts in
this state shall take judicial notice of the seal of the commissioner and in all cases copies of orders,
proceedings or records in the office of the West Virginia commissioner of employment programs
shall be equal to the original in evidence.
(d) Pursuant to the provisions of article ten, chapter four of this code, the commissioner of
the bureau of employment programs shall continue to administer this chapter until the first day of
July, two thousand four.
(e) The attorney general shall perform all legal services required by the commissioner under
the provisions of this chapter: Provided, That in any case in which an application for review is
prosecuted from any final decision of the workers' compensation appeal board to the supreme court
of appeals, as provided by section four, article five of this chapter, or in any court proceeding before
the workers' compensation appeal board, or in any proceedings before the office of judges, or in any
case in which a petition for an extraordinary writ is filed in the supreme court of appeals or in any
circuit court, in which such representation shall appear to the commissioner to be desirable, the
commissioner may designate a regular employee of this office, qualified to practice before such
court to represent the commissioner upon such appeal or proceeding, and in no case shall the person
so appearing for the commissioner before the court receive remuneration therefor other than such
person's regular salary.
(a) The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency
of the fund. The Legislature further finds that addressing the workers' compensation crisis requires
the efforts of all persons and entities involved. Modification to the rate system, alteration of the
benefit structure, improvement of current management practices and changes in perception must be
merged into a unified effort to make the workers' compensation system viable and solvent. It is the
intent of the Legislature that the amendments to this chapter enacted in the year two thousand three
be applied from the date upon which the enactment is made effective by the Legislature. The
Legislature finds that an emergency exists as a result of the combined effect of this deficit, other
state budgetary deficits and liabilities, and other grave social and economic circumstances currently
confronting the state, and that unless the changes provided by the enactment of the amendments to
this chapter, as well as other legislation designed to address the problem are made effective
immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the
Legislature finds that the need of the citizens of this state for the protection of the state treasury and
the solvency of the workers' compensation funds requires the limitations on any expectations that
may have arisen from prior enactments of this chapter.
_____(b) It is the further intent of the Legislature that this chapter be interpreted so as to assure the
quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable
cost to the employers who are subject to the provisions of this chapter. It is the specific intent of the
Legislature that workers' compensation cases shall be decided on their merits and that a rule of
"liberal construction" based on any "remedial" basis of workers' compensation legislation shall not
affect the weighing of evidence in resolving such cases. The workers' compensation system in this
state is based on a mutual renunciation of common law rights and defenses by employers and
employees alike. Employees' rights to sue for damages over and above medical and health care benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter, and
employers' rights to raise common law defenses such as lack of negligence, contributory negligence
on the part of the employee, and others, are curtailed as well. Accordingly, the Legislature hereby
declares that any remedial component of the workers' compensation laws is not to cause the
workers' compensation laws to receive liberal construction that alters in any way the proper
weighing of evidence as required by section one-g, article four of this chapter.
_____(c) The "workers' compensation division of the bureau of employment programs" is, on or
after the first day of 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.
§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 Delegate shall serve as advisory members of the board, and are not voting members. The
governor shall appoint the legislative members to the board. No more than three of the legislative
members may be of the same political party.
(c)(1) The initial eight appointed voting members of the board of managers shall consist of
the members appointed under the provisions of paragraph (D), subdivision (1), subsection (a) of this
section and the remaining members appointed pursuant to the provisions of subsection (d) of this
section. The term of each of the initial appointed members shall expire on the thirty-first day of
December, two thousand four.
(2) Eight members shall be appointed by the governor with the advice and consent of the
Senate for terms that begin the first day of January, two thousand five and expire as follows:
Two members shall be appointed for a term ending the thirtieth day of June, two thousand six;
Three members shall be appointed for a term ending the thirtieth day of June, two thousand
seven; and
Three members shall be appointed for a term ending the thirtieth day of June, two thousand
eight.
(3) Except for appointments to fill vacancies, each subsequent appointment shall be for a
term ending the thirtieth day of June of the fourth year following the year the preceding term
expired. In the event a vacancy occurs it shall be filled by appointment for the unexpired term. A
member whose term has expired shall continue in office until a successor has been duly appointed
and qualified. No member of the board may be removed from office by the governor except for
official misconduct, incompetency, neglect of duty or gross immorality.
(4) No appointed member may be a candidate for or hold elected office. Members may be
reappointed for no more than two full terms.
(d) Except for those initially appointed under the provisions of paragraph (D), subdivision
(1), subsection (a) of this section, each of the appointed voting members of the board shall be
appointed based upon his or her demonstrated knowledge and experience to effectively accomplish
the purposes of this chapter. They shall meet the minimum qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited college or university:
Provided, That no more than two of the appointed voting members may serve without a
baccalaureate degree from an accredited college or university if the member has a minimum of
fifteen years experience in his or her field of expertise as required in subdivision (2) of this
subsection;
(2) Each shall have a minimum of ten years experience in his or her field of expertise. The governor shall consider the following guidelines when determining whether potential candidates
meet the qualifications of this subsection: expertise in insurance claims management; expertise in
insurance underwriting; expertise in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two hundred beneficiaries or three
hundred million dollars; expertise in workers' compensation management; expertise in loss
prevention and rehabilitation; expertise in occupational medicine demonstrated by licensure as a
medical doctor in West Virginia and experience, board certification or university affiliation; or
expertise in similar areas of endeavor.
(3) At least one shall be a certified public accountant with financial management or pension
or insurance audit expertise; at least one shall be an attorney with financial management experience;
and one shall be an academician holding an advanced degree from an accredited college or
university in business, finance, insurance or economics.
(e) Each member of the board shall have a fiduciary responsibility to the commission and
all workers' compensation funds and shall assure the proper administration of the funds in a fiscally
responsible manner.
(f) The board shall elect one member to serve as chairperson. The chairperson shall serve
for a one-year term and may serve more than one consecutive term. The board shall hold meetings
at the request of the chairperson or at the request of at least three of the members of the board, but
no less frequently than once every three months. The chairperson shall determine the date and time
of each meeting. Six members of the board constitute a quorum for the conduct of the business of
the board. No vacancy in the membership of the board shall impair the right of a quorum to exercise
all the rights and perform all the duties of the board. No action shall be taken by the board except
upon the affirmative vote of six members of the board.
(g) Notwithstanding any provision of article seven, chapter six of this code to the contrary,
the board shall establish the salary of the executive director. The board shall establish a set of
performance measurements to evaluate the performance of the executive director in fulfilling his or
her duties as prescribed in this chapter and shall annually rate the executive director's performance
according to the established measurements and may adjust his or her annual salary in accordance
with that performance rating.
(h)(1) Each voting appointed member of the board shall receive compensation of not more
than five hundred 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 their actions and for holding hearings and receiving
public comments on the rules;
(4) In accordance with the laws, rules and regulations of West Virginia and the United States
government, establish and monitor performance standards and measurements to ensure the
timeliness and accuracy of activities performed under the workers' compensation laws and rules;
(5) Review and approve, reject or modify all classifications of occupations or industries,
premium rates and taxes, administrative charges, rules and systems of rating, rating plans, rate
revisions, deficit management and deficit reduction assessments, and merit rating for employers
covered by this chapter. The executive director shall provide all information required for the board's
review;
(6) No later than the thirty-first day of December, two thousand five, establish by rule a
program that rewards safety by granting discounts on premium rates for employers who meet the
following requirements:
(A) Have not incurred a compensable injury for one year or more;
(B) Maintain an employer/employee safety committee;
(C) Make periodic safety inspections of the workplace; and
(D) Successfully complete a loss prevention program;
(7) 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;
(8) 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;
(9) 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;
(10) In consultation with the executive director, approve the designation of health care
providers to make decisions for the commission regarding appropriateness of medical services;
(11) Require the workers' compensation commission to develop, maintain and use an
effective program of return-to-work services for employers and workers;
(12) 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;
(13) Consider such other matters regarding the workers' compensation system as the governor, executive director or any member of the board may desire;
(14) 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;
(15) Appoint, if necessary, a temporary executive director;
(16) Employ sufficient professional and clerical staff to carry out the duties of the board.
Employees of the board shall serve at the will and pleasure of the board. The board's employees
are exempt from the salary schedule or pay plan adopted by the division of personnel; and
(17) Study the feasability 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
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; and study the comparative
desirability of alternative permanent disability administration in those other states, and alternative
deficit management strategies, including non-traditional funding. On or before the first day of
January, two thousand six, the commission shall report the findings and conclusions of each study,
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.
§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 majority vote of the full board of managers. The board of managers and the
executive director may, by agreement, terminate the term of employment at any time.
(g) The executive director shall have overall management responsibility and administrative
control and supervision within the workers' compensation commission and has the power and duty
to:
(1) Establish, with the approval of the board of managers, the overall administrative policy
of the commission for the purposes of this chapter;
(2) Employ, direct and supervise all employees required in the connection with the
performance of the duties assigned to the commission by this chapter and fix the compensation of
the employees in accordance with the provisions of article six, chapter twenty-nine of this code:
Provided, That the executive director shall identify which members of the staff of the workers'
compensation commission shall be exempted from the salary schedules or pay plan adopted by the
state personnel board, and further identify such staff members by job classification or designation,
together with the salary or salary ranges for each such job classification or designation and shall file this information with the director of the division of personnel no later than the thirty-first day of
December, two thousand three, and thereafter as changes are made or at least annually;
(3) Reorganize the work of the commission, its divisions, sections, and offices to the extent
necessary to achieve the most efficient performance of its functions. All persons employed by the
workers' compensation division in positions that were formerly supervised and directed by the
commissioner of the bureau of employment programs under chapter twenty-one-a of this code are
hereby assigned and transferred in their respective classifications to the workers' compensation
commission 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. Nothing contained in this subdivision shall
be construed to either abridge the rights of employees within the classified service of the state to the
procedures and protections set forth in article six, chapter twenty-nine of this code, or to preclude the reclassification or reallocation of positions in accordance with procedures set forth in article six,
chapter twenty-nine of this code.
(4) Exempt no more than twenty-five of any of the newly created positions from the
classified service of the state, the employees of which positions shall serve at the will and pleasure
of the executive director. The executive director shall report all exemptions made under this
subdivision to the director of the division of personnel no later than the first day of 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 policy-making, management
and adjudicatory duties under this chapter;
(13) Delegate all powers and duties vested in the executive director to his or her appointees
and employees; but the executive director is responsible for their acts;
(14) Provide at commission expense a program of continuing professional, technical and
specialized instruction for the personnel of the commission. The executive director shall consult
with and report at least annually to the legislative oversight commission on workforce investment
for economic development to obtain the most appropriate training using all available resources;
(15) (A) Contract or employ counsel to perform all legal services for the commission
including, but not limited to, representing the executive director, board of managers and commission
in any administrative proceeding and in any state or federal court. Additionally, the commission
may, but shall not be required to, call upon the attorney general for legal assistance and
representation as provided by law. The attorney general shall not approve or exercise authority over
in-house counsel or contract counsel hired pursuant to this section.
(B) In addition to the authority granted by this section to the executive director and
notwithstanding any provision to the contrary elsewhere in this code, use any attorney regularly
employed by the commission or the office of the attorney general to represent the commission, the
executive director or the board of managers in any matter arising from the performance of its duties
or the execution of its powers under this chapter. In addition, the executive director, with the
approval of the board of managers, may retain counsel for any purpose in the administration of this
chapter relating to the collection of any amounts due from employers to the commission: Provided,
That the allocation of resources for the purpose of any collections shall be pursuant to the plan
developed by the board of managers. The board of managers shall solicit proposals from counsel
who are interested in representing the commission under the terms of this subdivision. Thereafter,
the board of managers shall select any attorneys it determines necessary to pursue the collection
objectives of this subdivision:
(i) Payment to retained counsel may either be hourly or by other fixed fee, or as determined
by the court or administrative law judge as provided for in this section. A contingency fee payable
from the amount recovered by judgment or settlement for the commission is only permitted, to the
extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so
that a full recovery plus attorneys' fees is not possible;
(ii) In the event that any collections action, other than a collections action against a claimant,
initiated either by retained counsel or other counsel on behalf of the commission results in a
judgment or settlement in favor of the commission, the court or, if there was no judicial component
to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall
be paid by the defendants or respondents to the retained or other counsel representing the
commission. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commission in
pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by
the court or the administrative law judge in an amount no less than twenty percent of its recovery.
Any additional amount of attorneys' fees shall be determined by use of the following factors:
(I) The counsel's normal hourly rate or, if the counsel is an employee of the commission or
is an employee of the office of the attorney general, an hourly rate the court or the administrative
law judge determines to be customary based upon the attorney's experience and skill level;
(II) The number of hours actually expended on the action;
(III) The complexity of the issues involved in the action;
(IV) The degree of risk involved in the case with regard to the probability of success or
failure;
(V) The overhead costs incurred by counsel with regard to the use of paralegals and other
office staff, experts and investigators; and
(VI) The public purpose served or public objective achieved by the attorney in obtaining the
judgment or settlement on behalf of the commission;
(iii) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commission
and the defendants or respondents to any administrative or judicial action settle the action, the
parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or
respondents above and beyond the amount recovered by the commission. In the event that a
settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge
for approval;
(iv) Any attorney regularly employed by the commission or by the office of the attorney
general may not receive any remuneration for his or her services other than the attorney's regular salary. Any attorneys' fees awarded for an employed attorney are payable to the commission;
(16) Propose rules for promulgation by the board of managers under which agencies of this
state shall revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other
authority to conduct a trade, profession or business to or with any employing unit whose account
is in default with the commission with regard to the administration of this chapter. The term
"agency" includes any unit of state government such as officers, agencies, divisions, departments,
boards, commissions, authorities or public corporations. An employing unit is not in default if it has
entered into a repayment agreement with the commission and remains in compliance with its
obligations under the repayment agreements.
(A) The rules shall provide that, before granting, issuing or renewing any contract, license,
permit, certificate or other authority to conduct a trade, profession or business to or with any
employing unit, the designated agencies shall review a list or lists provided by the commission of
employers that are in default. If the employing unit's name is not on the list, the agency, unless it
has actual knowledge that the employing unit is in default with the commission, may grant, issue
or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or
business. The list may be provided to the agency in the form of a computerized database or
databases that the agency can access. Any objections to the refusal to issue or renew shall be
reviewed under the appropriate provisions of this chapter. The prohibition against granting, issuing
or renewing any contract, license, permit, certificate or other authority under this subdivision shall
remain in full force and effect as promulgated under section six, article two, chapter twenty-one-a
of this code until the rules required by this subsection are promulgated and in effect.
(B) The rules shall also provide a procedure allowing any agency or interested person, after
being covered under the rules for at least one year, to petition the commission to be exempt from the provisions of the rules;
(17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding
any other provision of this code and to the extent allowed by federal law, all amounts of delinquent
payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected
under the provisions of this chapter. The amounts collected shall not be treated by the auditor or
treasurer as part of the general revenue of the state;
(18) Recommend for approval of the board of managers rules for the administration of claims
management by self-insured employers and third-party administrators including regulation and
sanctions for the rejection of claims and for maintaining claim records and ensuring access to all
claim records by interested claimants, claimant representatives, the commission and the office of
judges;
(19) Recommend for approval of the board of managers, rules to eliminate the ability of an
employer to avoid an experience modification factor by virtue of a reorganization of a business;
(20) Submit for approval of the board of managers rules setting forth procedures for auditing
and investigating employers, including 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) Establish and maintain a fraud and abuse investigation and prosecution unit. This unit
has the responsibility and authority for investigating and controlling fraud and abuse of the workers'
compensation system of the state of West Virginia. The fraud and abuse unit shall be under the
supervision of an inspector general, who shall be appointed by the executive director of the workers' compensation commission.
(A) The inspector general shall, with the consent and advice of the executive director,
employ all personnel as necessary for the institution, development and finalization of procedures
and investigations which serve to ensure that only necessary and proper workers' compensation
benefits and expenses are paid to or on behalf of injured employees and to insure employers
subscribe to and pay the proper premium to the West Virginia workers' compensation commission.
Qualification, compensation and personnel practice relating to the employees of the fraud and abuse
unit, including that of the position of inspector general, shall be governed by the provisions of the
statutes, rules and regulations of the classified service pursuant to article six, chapter twenty-nine
of this code. The inspector general shall supervise all personnel, which collectively shall be referred
to in this chapter as the fraud and abuse unit.
(B) The fraud and abuse unit shall have the following powers and duties:
(i) The fraud and abuse unit will be responsible for the initiation, development, review, and
proposal for promulgation by the board of managers of rules regarding the existence of fraud and
abuse as it relates to the workers' compensation system in West Virginia;
(ii) The fraud and abuse unit will take action to identify and prevent and discourage any and
all fraud and abuse;
(iii) The fraud and abuse unit, in cases of criminal fraud, has the authority to review and
prosecute those cases for violations of sections twenty-four-e, twenty-four-f, twenty-four-g and
twenty-four-h, article three, chapter sixty-one of this code, as well as any other criminal statutes that
may be applicable. In addition the fraud and abuse unit not only has the authority to prosecute and
refer cases involving criminal fraud to appropriate state authorities for prosecution, but it also has
the authority, and is encouraged, to cooperate with the appropriate federal authorities for review and possible prosecution, by either state or federal agencies, of cases involving criminal fraud
concerning the workers' compensation system in West Virginia;
(iv) The fraud and abuse unit, in cases which do not meet the definition of criminal fraud,
but would meet a reasonable person's definition of an abuse of the workers' compensation system,
shall take the appropriate action to discourage and prevent such abuse. Furthermore, the fraud and
abuse unit shall assist the commission to develop evidence of fraud or abuse which can be used
pursuant to the provisions of this chapter to suspend, and where appropriate, terminate, a claimant's
benefits. In addition, evidence developed pursuant to these provisions can be used in hearings
before the office of judges on protests to commission decisions terminating, or not terminating,
temporary total disability benefits; and
(v) The fraud and abuse unit, is expressly authorized to initiate investigations and participate
in the development of, and if necessary, the prosecution of any health care provider, including a
provider of rehabilitation services, alleged to have violated the provisions of section three-c, article
four of this chapter.
(C) Specific personnel, designated by the inspector general, shall be permitted to operate
vehicles owned or leased for the state displaying Class A registration plates.
(D) Notwithstanding any provision of this code to the contrary, specific personnel designated
by the inspector general may carry handguns in the course of their official duties after meeting
specialized qualifications established by the governor's committee on crime, delinquency and
correction, which qualifications shall include the successful completion of handgun training
provided to law-enforcement officers by the West Virginia state police: Provided, That nothing in
this subsection shall be construed to include the personnel so designated by the inspector general
to carry handguns within the meaning of the term law-enforcement official as defined in section one, article twenty-nine, chapter thirty of this code.
(E) The fraud and abuse unit is not subject to any requirement of article nine-a, chapter six
of this code, and the investigations conducted by the fraud and abuse unit and the materials placed
in the files of the unit as a result of any such investigation are exempt from public disclosure under
the provisions of chapter twenty-nine-b of this code.
(F) In the event that a final judicial decision adjudges that the statewide prosecutorial powers
vested by this subdivision in the fraud and abuse unit may only be exercised by a public official
other than an employee of the fraud and abuse unit, then to that extent the provisions of this
subdivision vesting statewide prosecutorial power shall thenceforth be of no force and effect, the
remaining provisions of this subdivision shall continue in full force and effect, and prosecutions
hereunder may only be exercised by the prosecuting attorneys of this state and their assistants or
special assistant prosecuting attorneys appointed as provided by law.
(23) Enter into interagency agreements to assist in exchanging information and fulfilling the
default provisions of this chapter;
(24) Notwithstanding any provision of this code to the contrary, the executive director, under
emergency authorization:
(A) May expend up to fifty thousand dollars for purchases of and may contract for goods and
services without securing competitive bids. This emergency spending authority expires on the first
day of July, two thousand five; and
(B) May expend such sums as the executive director determines are necessary for
professional services, contracts for the purchase of an automated claims administration system and
associated computer hardware and software in the administration of claims for benefits made under
provisions of this chapter, and contracts for technical services and related services necessary to develop, implement and maintain the system and associated computer hardware and software. The
provisions of article three, chapter five-a of this code, relating to the purchasing division of the
department administration, shall not apply to these contracts. The director shall award the contract
or contracts on a competitive basis. This emergency spending authority expires on the thirty-first
day of December, two thousand six;
(25) Establish an employer violator system to identify individuals and employers who are
in default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the
commission. The employer violator system shall prohibit violators who own, control or have 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; and
(27) Study the correlation between premium tax merit rating for employers and the safety
performance of employers. This study shall be completed prior to first day of July, two thousand
four, and the results thereof provided to the board of managers.
§23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and agents making contracts on behalf
of the state of West Virginia or any political subdivision thereof shall withhold payment in the final
settlement of contracts until the receipt of a certificate from the commission to the effect that all
payments, interest and penalties thereon accrued against the contractor under this chapter have been
paid or that provisions satisfactory to the commission have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not
more than one thousand dollars or confined in the county or regional jail for not more than one year,
or both fined and confined.
(b) Any agency of the state, for the limited purpose of intercepting, pursuant to section five-
a, article two, chapter twenty-three of this code, any payment by or through the state to an employer
who is in default in payment of contributions, premiums, deposits, interest or penalties under the
provisions of this chapter, shall assist the commission in collecting the payment that is due. For this
purpose, disclosure of joint delinquency and default lists of employers with respect to
unemployment compensation as provided in section six-c, article one, chapter twenty-one-a of this
code and workers' compensation contributions, premiums, interest, deposits or penalties is
authorized. The commission and the bureau of employment programs may enter into an interagency
agreement to effect the provisions of this section. The lists may be in the form of a computerized
database to be accessed by the auditor, the department of tax and revenue, the department of
administration, the division of highways or other appropriate state agency or officer.
§23-1-1d. Rules of former division of workers' compensation.
Except as otherwise provided for in this chapter, all rules applicable to the former workers'
compensation division of the bureau of employment programs are hereby adopted and made
effective as to the operation of the workers' compensation commission under this chapter to the
extent that they are not in conflict with the current law. The board of managers shall review and
approve, modify or replace all existing rules no later than the first day of July, two thousand six.
§23-1-1e. Transfer of assets and contracts.
With the establishment of the workers' compensation commission, all assets and contracts,
along with rights and obligations thereunder, obtained or signed on behalf of the workers' compensation division of the bureau of employment programs in furtherance of the purposes of this
chapter, are hereby transferred and assigned to the workers' compensation commission.
§23-1-1f. Continuation.
The workers' compensation division shall continue to exist pursuant to article ten, chapter
four of this code through the thirtieth day of September, two thousand three, at which time all
powers and duties are transferred to the workers' compensation commission. The workers'
compensation commission shall continue to exist, pursuant to said article until the first day of July,
two thousand six, unless sooner terminated, continued or reestablished pursuant to the provisions
of that article.
§23-1-2.
Oversight of the workers' compensation commission.
All expenses peculiar to the administration of this chapter, and, when on official business,
the traveling and incidental expenses of the commissioner and salaries or other compensation,
traveling and other expenses of all officers or employees of the commissioner, and all expenses for
furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all
organizations pertaining to workers' compensation or safety in which the commissioner considers
it advisable to maintain membership, shall be paid out of the workers' compensation fund.
(a) In addition to any other oversight of the commission exercised by the Legislature, the
commission shall report at least quarterly to the joint committee on government and finance and the
joint commission on economic development. The commission shall collect data and report on
claims and injuries and on the costs and outcomes of injuries by standard codes for medical
treatment, vocation rehabilitation services, return-to-work services, other benefits payable to or on
behalf of employees, efforts to eliminate fraud and abuse, and the impact of judicial and quasi-
judicial rulings on the administration of the workers' compensation system and the solvency of the fund. The workers' compensation commission shall provide to the joint committee on government
and finance and the joint commission on economic development an action plan for improving the
workers' compensation system. This plan shall include detail on any administrative changes
undertaken by the commission, a report on the anticipated outcome of the changes, a cost-benefit
analysis of the changes and time frames for commencement and completion of these changes.
Subsequent reports to the joint committee on government and finance and the joint commission on
economic development shall report on the progress of these changes. The administrative changes
shall include, but are not limited to, claims processing, reorganization, staff development and
training, return-to-work programs, workplace alternatives for injured workers, safety programs and
medical and vocational services.
_____(b) The commission shall also report on the current status of the workers' compensation fund
and the coal-workers' pneumoconiosis fund. This analysis shall include the current balances in the
fund and revenue generated and expended in relationship to the liabilities and assets of the funds and
estimates of any debt reduction relative to the fund over the next reporting period.
_____(c) The commission shall further report on the impact on the workers' compensation system
of the amendments to subdivision (2), subsection (n), section six, article four of this chapter enacted
during the year two thousand three, including, but not limited to, an analysis of any litigation
resulting from the amendments.
_____(d) The commission shall further report on methodologies used to establish all types of
assessments and rates.
_____(e) The commission shall further report on legislative action that may be required to further
improve the operation of the commission.
§23-1-3. Payment of salaries and expenses generally; manner; limitation.
(a) All expenses peculiar to the administration of this chapter, and, when on official business,
the travel and incidental expenses of the executive director and salaries or other compensation,
traveling and other expenses of all officers or employees of the commission, and all expenses for
furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all
organizations pertaining to workers' compensation, safety maintenance or professional designation
in which the executive director considers it advisable to maintain membership, shall be paid out of
the workers' compensation fund.
_____(b) All payments of salaries and expenses in the administration of this chapter shall be made
by the state treasurer upon requisition signed by the commissioner executive director, directed to
the auditor of the state, who shall draw his or her warrant therefor, and any such the payment shall
be charged to the workers' compensation fund: Provided, That the total charges against such the
fund under this section for any one fiscal year shall not exceed the amount appropriated therefor for
the administration of this chapter.
§23-1-4. Office hours; records; confidentiality; exceptions.
(a) The offices of the workers' compensation division commission shall be open for the
transaction of business between the hours of eight-thirty o'clock a.m. and five o'clock p.m. of each
and every day, excepting Saturdays, Sundays and legal holidays, and be open upon such any
additional days and at such any additional times as elected by the division may elect commission.
As The executive director is the chief executive officer of the bureau of employment programs
workers' compensation commission., the commissioner shall designate an executive director to
serve as the chief operating officer for the daily operations of the workers' compensation division:
Provided, That in any instance in this chapter which refers to the commissioner's secretary, such
reference shall be taken to mean the executive director
(b) Except as expressly provided for in this subsection, information obtained regarding
employers and claimants pursuant to this chapter for the purposes of its administration shall is not
be subject to the provisions of chapter twenty-nine-b of this code unless such the provisions are
hereafter specifically made applicable, in whole or in part. Such The information as may be that is
reasonably necessary may be released in formal orders or opinions of any tribunal or court which
is presented with an issue arising under this chapter as well as in the presentations of the parties
before any such the tribunal or court. Similarly, claimants or other interested parties to an issue
arising under this chapter may, upon request, obtain information from the division's commission's
records to the extent necessary for the proper presentation or defense of a claim or other matter.
Information may be released pursuant to the provisions of chapter twenty-nine-b of this code only
if all identifying information has first been eliminated from the records. Nothing in this subsection
shall prevent the release of information to another agency of the state or of the federal government
for the legitimate purposes of those agencies: Provided, That any such the agency shall guarantee
the confidentiality of the information so provided to the fullest extent possible in keeping with its
own statutory and regulatory mandates. Nothing in this section shall prevent the division
commission from complying with any subpoena duces tecum: Provided, however, That the issuing
tribunal or court shall take such actions as may be proper to maintain the confidentiality of the
information.
The division commission may release, pursuant to a proper request under the provisions of
chapter twenty-nine-b of this code, the following information:
(1) The base premium tax rate for a specific employer;
(2) Whether or not a specific employer has obtained coverage under the provisions of this
chapter;
(3) Whether or not a specific employer is in good standing or is delinquent or in default
according to the division's commission's records and the time periods thereof; and
(4) If a specific employer is delinquent or in default, what the payments due the division
commission are and what the components of that payment are, including the time periods affected.
§23-1-4a. Bond for executive director and associate director.
(a) The executive director and associate director of the workers' compensation commission
shall give bond in an amount determined by the board of managers conditioned for the faithful
management of the fund and performance of their duties. The bond shall be approved by the
attorney general as to form. The surety of the bond may be a bonding or surety company, in which
case the premium shall be paid out of the workers' compensation fund.
(b) The executive director and associate director shall be provided appropriate insurance,
including, but not limited to, errors and omission coverage, without additional premium, by the state
board of risk and insurance management established pursuant to article twelve, chapter twenty-nine
of this code.
§23-1-5. Office of executive director; hearings.
The commissioner executive director shall keep and maintain his or her office at the seat of
government and shall provide a suitable room or rooms, necessary office furniture, supplies, books,
periodicals, maps and other equipment. After due notice, showing the time and place, the
commissioner executive director may hold hearings anywhere within the state, or elsewhere by
agreement of claimant and employer, with the approval of the commissioner executive director.
§23-1-6. Employment of associate director and other assistants; compensation and travel
expenses.
(a) The commissioner executive director may employ a secretary an associate director, actuary, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants, and
fix their compensation, which shall be paid as provided in sections two and section three of this
article. The associate director shall be hired with the approval of the board of managers and serves
at the will and pleasure of the executive director.
_____(b) The commissioner, secretary associate director, supervisory officers, actuaries,
accountants, inspectors, examiners, experts, clerks, stenographers and other assistants who may be
employed shall be are entitled to receive from the workers' compensation fund their actual and
necessary expense while traveling on business of the commissioner Such commission. Travel
reimbursement shall be paid in accordance with the travel guidelines established by the department
of administration. All expenses shall be itemized and sworn to by the person who incurred the
expense, and shall be are subject to the approval of the commissioner executive director: Provided,
That the expenses of the executive director shall be subject to the approval of the board of managers.
§23-1-7. Associate director to act during executive director's absence or inability to act and
in case of vacancy; bond of associate director.
Whenever it shall appear appears that the commissioner executive director will be absent or
unable to act for one week or more, the secretary associate director of the commissioner commission
may be designated by the commissioner executive director to act during his or her absence or
inability to act, and during such that period he or she shall have all the duties and powers of the
commissioner. The secretary shall give bond in the penalty of twenty-five thousand dollars
conditioned for the faithful performance of the duties of his office, which bond shall be approved
by the attorney general as to form and by the governor as to sufficiency. The surety of such bond
may be a bonding or surety company, in which case the premium shall be paid out of the
appropriation made for the administration of this chapter. executive director. In the event a vacancy occurs in the office of commissioner executive director, the secretary of the commissioner associate
director shall have all the duties and powers of the commissioner executive director until a
commissioner is appointed by the governor in accordance with section one of this article an
executive director or a temporary executive director is hired by the board of managers. The board
of managers may determine the amount of additional compensation the associate director may
receive as acting executive director.
§23-1-8. Authority of executive director and employees as to oaths and evidence.
The commissioner, secretary executive director, associate director and every inspector or
examiner other employees appointed by the commissioner shall executive director may, for the
purpose contemplated by this chapter, have power to administer oaths, certify official acts, take
depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent
books, accounts, papers, records, documents and testimony.
§23-1-9. Compelling compliance with order or subpoena.
In case of failure or refusal of any person to comply with the order of the commissioner
executive director, or subpoena issued by him or her, his secretary the associate director, or one of
his inspectors or examiners duly appointed employee, or on the refusal of a witness to testify to any
matter regarding which he or she may be lawfully interrogated, or refusal to permit an inspection
as aforesaid, the circuit judge of the county in which the person resides, on application of the
commissioner executive director, associate director or any inspector or examiner duly appointed by
him employee, shall compel obedience by attachment proceedings as for contempt, as in the case
of disobedience of the requirements of a subpoena issued from such the court on a refusal to testify
therein in the court.
§23-1-10. Fee of officer serving subpoena; fees and mileage of witnesses.
Each officer who serves such subpoenas on behalf of the commission shall receive the same
fee as a sheriff, and each witness who appears in obedience to a subpoena before the commissioner
executive director, associate director or an inspector, or an examiner duly appointed employee, shall
receive for his or her attendance the fees and mileage provided for witnesses in civil cases in the
circuit court, which shall be audited and paid out of the workers' compensation fund in the same
manner as other expenses are audited and paid, if such the witness was subpoenaed without the
request of either claimant or employer at the instance of the commissioner executive director,
associate director or an inspector or an examiner duly appointed employee. The witness fees and
mileage of any witness subpoenaed by, or at the instance of, either claimant or employer shall be
paid by the party who subpoenas such the witness.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under articles one through five, inclusive, of
this chapter, the division commission may cause depositions of witnesses residing within or without
the state to be taken in the manner prescribed by law for like depositions in the circuit court, but
such the depositions shall be upon reasonable notice to claimant and employer or other affected
persons or their respective attorneys. The division commission shall designate the person to
represent it for the taking of any such the deposition.
(b) The division shall commission also have has discretion to accept and consider depositions
taken within or without the state by either the claimant or employer or other affected person,
provided due and reasonable notice of the taking of such the depositions was given to the other
parties or their attorneys, if any: Provided, That the division commission, upon due notice to the
parties, shall have has authority to refuse or permit the taking of such depositions or to reject such
the depositions after the taking thereof they are taken, if they were taken at such a place or under such circumstances as which imposed an undue burden or hardship upon the other parties., and the
division's The commission's discretion to accept, refuse to approve or reject such the depositions
shall be is binding in the absence of abuse of such the discretion.
§23-1-12. Copies of proceedings as evidence.
A transcribed copy of the evidence and proceedings, or any specific part thereof, on any
investigation or hearing, taken by a stenographer appointed by the commissioner executive director
and certified and sworn to by such the stenographer to be a true and correct transcript of the
testimony in the investigation or hearing, or of a particular witness, or of a specific part thereof, or
to be a correct transcript of the proceedings had on such the investigation or hearing so purporting
to be taken and subscribed, may be received in evidence by the commissioner executive director
with the same effect as if such the stenographer were present and testified to the facts certified. A
copy of such the transcript shall be furnished on demand to any party upon payment of the fee
prescribed therefor in the rules and regulations policies of the commissioner commission. such The
fee shall not to exceed that prescribed for transcripts in the circuit court.
§23-1-13. Rules of procedure and evidence; persons authorized to appear in proceedings;
withholding of psychiatric and psychological reports and providing summaries thereof.
(a) The workers' compensation division commission shall adopt reasonable and proper rules
of procedure, regulate and provide for the kind and character of notices, and the service thereof of
the notices, in cases of accident and injury to employees, the nature and extent of the proofs and
evidence, the method of taking and furnishing the same of evidence to establish the rights to benefits
or compensation from the fund hereinafter provided for, or directly from employers as hereinafter
provided, as the case may require, and the method of making investigations, physical examinations
and inspections, and prescribe the time within which adjudications and awards shall be made.
(b) At hearings and other proceedings before the division commission or before the duly
authorized representative of the division commission, an employer who is a natural person may
appear, and a claimant may appear, only as follows:
(1) By an attorney duly licensed and admitted to the practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to practice before a court of record
of general jurisdiction in another state or country or in the District of Columbia who has complied
with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for
admission to the practice of law, as amended;
(3) By a representative from a labor organization who has been recognized by the division
commission as being qualified to represent a claimant or who is an individual otherwise found to
be qualified by the division commission to act as a representative. Such The representative shall
participate in the presentation of facts, figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such the facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the division commission or before the duly
authorized representative of the division commission, an employer who is not a natural person may
appear only as follows:
(1) By an attorney duly licensed and admitted to the practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to practice before a court of record
of general jurisdiction in another state or country or in the District of Columbia who has complied
with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for
admission to the practice of law, as amended;
(3) By a member of the board of directors of a corporation or by an officer of the corporation for purposes of representing the interest of the corporation in the presentation of facts, figures and
factual conclusions as distinguished from the presentation of legal conclusions in respect to such the
facts and figures; or
(4) By a representative from an employer service company who has been recognized by the
division commission as being qualified to represent an employer or who is an individual otherwise
found to be qualified by the division commission to act as a representative. Such The representative
shall participate in the presentation of facts, figures and factual conclusions as distinguished from
the presentation of legal conclusions in respect to such the facts and figures.
(d) The division commission or its representative may require an individual appearing on
behalf of a natural person or corporation to produce satisfactory evidence that he or she is properly
qualified and authorized to so appear pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not be construed as being applicable to
proceedings before the office of judges pursuant to the provisions of article five of this chapter.
(f) At the direction of a treating or evaluating psychiatrist or clinical doctoral level
psychologist, a psychiatric or psychological report concerning a claimant who is receiving treatment
or is being evaluated for psychiatric or psychological problems may be withheld from the claimant.
In that event, a summary of the report shall be compiled by the reporting psychiatrist or clinical
doctoral level psychologist which. The summary shall be provided to the claimant upon his or her
request. Any representative or attorney of the claimant must agree to provide such a the claimant
with only the summary before the full report shall be is provided to the representative or attorney
for his or her use in preparing the claimant's case. Such a The report shall only be withheld from
the claimant in those instances where the treating or evaluating psychiatrist or clinical doctoral level
psychologist certifies that exposure to the contents of the full report is likely to cause serious harm to the claimant or is likely to cause the claimant to pose a serious threat of harm to a third party.
(g) In any matter arising under articles one through five, inclusive, of this chapter in which
the division commission is required to give notice to a party, if a party is represented by an attorney
or other representative, then notice to the attorney or other representative shall be is sufficient notice
to the party so represented.
§23-1-14. Forms.
The commissioner commission shall prepare and furnish free of cost blank forms (and
provide in his or her rules for their distribution so that the same they may be readily available) of
applications for benefits for compensation from the workers' compensation fund, or directly from
employers, as the case may be, notices to employers, proofs of injury or death, of medical
attendance, of employment and wage earnings, and such any other blanks forms as may be deemed
considered proper and advisable. and it shall be It is the duty of employers to constantly keep on
hand a sufficient supply of such blanks the forms.
§23-1-15. Procedure before commission.
The commissioner shall commission is not be bound by the usual common-law or statutory
rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may
make investigations in such a manner as that in his or her judgment is best calculated to ascertain
the substantial rights of the parties and to carry out the provisions of this chapter.
§23-1-17. Annual report by commission and occupational pneumoconiosis board.
Annually, on or about the fifteenth day of September in each year, the commissioner
executive director and the occupational pneumoconiosis board shall make a report as of the thirtieth
day of June addressed to the governor, which shall include a statement of the causes of the injuries
for which the awards were made, an explanation of the diagnostic techniques used by the occupational pneumoconiosis board and all examining physicians to determine the presence of
disease, the extent of impairment attributable thereto, a description of the scientific support for such
the diagnostic techniques and a summary of public and private research relating to problems and
prevention of occupational diseases. The report shall include a detailed statement of all
disbursements, and the condition of the fund, together with any specific recommendations for
improvements in the workers' compensation law and for more efficient and responsive
administration thereof of the workers' compensation law, which the commissioner may consider
executive director considers appropriate. Copies of all annual reports shall be filed with the secretary
of state and shall be made available to the Legislature and to the public at large.
§23-1-18. Commission employees not subject to subpoena for workers' compensation
hearings.
No employee of the workers' compensation division commission shall be compelled to
testify as to the basis, findings or reasons for any decision or order rendered by the employee under
this chapter in any hearing conducted pursuant to article five of this chapter.
§23-1-19. Civil remedies.
(a) Any person, firm, corporation or other entity which willfully, by means of false statement
or representation, or by concealment of any material fact, or by other fraudulent scheme, device or
artifice on behalf of himself, itself, or others, obtains or attempts to obtain benefits or payments or
allowances, including workers' compensation coverage under the programs of the workers'
compensation commission to which he or it is not entitled, or, in a greater amount than that to which
he or it is entitled, shall be liable to the workers' compensation commission in an amount equal to
three times the amount of such benefits, payments or allowances to which he or it is not entitled, and
shall be liable for the payment of reasonable attorney fees and all other fees and costs of litigation.
(b) No criminal action or indictment need be brought against any person, firm, corporation
or other entity as a condition for establishing civil liability hereunder.
(c) A civil action under this section may be prosecuted and maintained on behalf of the
workers' compensation commission by the attorney general and his assistants or by any attorney in
contract with or employed by the workers' compensation commission to provide such
representation.
(d) Venue for a civil action under this section shall be either in the county in which the
defendant resides or in Kanawha county, as selected by the commission.
(e) The remedies and penalties provided in this section are in addition to those remedies and
penalties provided elsewhere by law.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide certain coverages; notices;
filing of business registration certificates.
(a) The state of West Virginia and all governmental agencies or departments created by it,
including county boards of education, political subdivisions of the state, any volunteer fire
department or company and other emergency service organizations as defined by article five, chapter
fifteen of this code, and all persons, firms, associations and corporations regularly employing
another person or persons for the purpose of carrying on any form of industry, service or business
in this state, are employers within the meaning of this chapter and are hereby required to subscribe
to and pay premium taxes into the workers' compensation fund for the protection of their employees
and shall be are subject to all requirements of this chapter and all rules and regulations prescribed
by the workers' compensation division commission with reference to rate, classification and premium payment: Provided, That such rates will be adjusted by the division commission to reflect
the demand on the compensation fund by the covered employer.
(b) The following employers are not required to subscribe to the fund, but may elect to do
so:
(1) Employers of employees in domestic services; or
(2) Employers of five or fewer full-time employees in agricultural service; or
(3) Employers of employees while said the employees are employed without the state except
in cases of temporary employment without the state; or
(4) Casual employers. An employer is deemed to be a casual employer when the number
of his or her employees does not exceed three and the period of employment is temporary,
intermittent and sporadic in nature and does not exceed ten calendar days in any calendar quarter;
or
(5) Churches; or
(6) Employers engaged in organized professional sports activities, including employers of
trainers and jockeys engaged in thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary unit organized under the
auspices of a county commission, municipality or other government entity or political subdivision;
volunteer organizations created or sponsored by government entities, political subdivisions; or area
or regional emergency medical services boards of directors in furtherance of the purposes of the
emergency medical services act of article four-c, chapter sixteen of this code: Provided, That should
if any of the employers described in this subdivision have paid employees then to the extent of those
paid employees, the employer must shall subscribe to and pay premium taxes into the workers'
compensation fund based upon the gross wages of the paid employees but with regard to the volunteers, such the coverage remains optional.
(c) Notwithstanding any other provision of this chapter to the contrary, whenever there are
churches in a circuit which employ one individual clergyman and the payments to such the
clergyman from such the churches constitute his or her full salary, such circuit or group of churches
may elect to be considered a single employer for the purpose of premium payment into the workers'
compensation fund.
(d) Employers who are not required to subscribe to the workers' compensation fund may
voluntarily choose to subscribe to and pay premiums into the fund for the protection of their
employees and in such that case shall be are subject to all requirements of this chapter and all rules
and regulations prescribed by the division commission with reference to rates, classifications and
premium payments and shall afford to them the protection of this chapter, including section six of
this article, but the failure of such the employers to choose to subscribe to and to pay premiums into
the fund shall not impose any liability upon them other than such any liability as that would exist
notwithstanding the provisions of this chapter.
(e) Any foreign corporation employer whose employment in this state is to be for a definite
or limited period which could not be considered "regularly employing" within the meaning of this
section may choose to pay into the workers' compensation fund the premiums herein provided for
in this section, and at the time of making application to the workers' compensation division such
commission, the employer shall furnish a statement under oath showing the probable length of time
the employment will continue in this state, the character of the work, an estimate of the monthly
payroll and any other information which may be required by the division commission. At the time
of making application such the employer shall deposit with the division commission to the credit
of the workers' compensation fund the amount required by section five of this article, which. That amount shall be returned to the employer if the employer's application be is rejected by the division
commission. Upon notice to such the employer of the acceptance of his or her application by the
division commission, he or she shall be is an employer within the meaning of this chapter and
subject to all of its provisions.
(f) Any foreign corporation employer choosing to comply with the provisions of this chapter
and to receive the benefits hereunder under this chapter shall, at the time of making application to
the division commission in addition to other requirements of this chapter, furnish the division
commission with a certificate from the secretary of state, where such the certificate is necessary,
showing that it has complied with all the requirements necessary to enable it legally to do business
in this state and no application of such a foreign corporation employer shall be accepted by the
division commission until such the certificate is filed.
(g) The following employers may elect not to provide coverage to certain of their employees
under the provisions of this chapter:
(1) Employers of employees who are officers of and stockholders in a corporation qualifying
for special tax treatment under subchapter S of the Internal Revenue Code of the United States may
elect not to provide coverage to such employees or Any political subdivision of the state including
county commissions and municipalities, boards of education, or emergency services organizations
organized under the auspices of a county commission may elect not to provide coverage to any
elected official. The election not to provide coverage does not apply to individuals in appointed
positions, or to any other employees of the political subdivision;
(2) If an employer is a partnership, sole proprietorship, association or corporation, such the
employer may elect not to include as an "employee" within this chapter, any member of such the
partnership, the owner of the sole proprietorship or any corporate officer or member of the board of directors of the association or corporation. The officers of a corporation or an association shall
consist of a president, a vice president, a secretary and a treasurer, each of whom shall be is elected
by the board of directors at such the time and in such the manner as may be prescribed by the
bylaws. Such other Other officers and assistant officers as may be deemed that are considered
necessary may be elected or appointed by the board of directors or chosen in such any other manner
as may be prescribed by the bylaws and, if so elected, appointed or chosen, such the employer may
elect not to include any such the officer or assistant officer as an "employee" within the meaning
of this chapter: Provided, That except for those persons who are members of the board of directors
or who are the corporation's or association's president, vice president, secretary and treasurer and
who may be excluded by reason of their aforementioned positions from the benefits of this chapter
even though their duties, responsibilities, activities or actions may have a dual capacity of work
which is ordinarily performed by an officer and also of work which is ordinarily performed by a
worker, an administrator or an employee who is not an officer, no such other officer or assistant
officer who is elected or appointed shall be excluded by election from coverage or be denied the
benefits of this chapter merely because he or she is such an officer or assistant officer if, as a matter
of fact:
(A) He or she is engaged in a dual capacity of having the duties and responsibilities for work
ordinarily performed by an officer and also having duties and work ordinarily performed by a
worker, administrator or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties of a worker, an administrator
or an employee who is not an officer and receives pay therefor for performing the duties in the
capacity of an employee; or
(C) If he He or she is engaged in an employment palpably separate and distinct from his or her official duties as an officer of the association or corporation.
(h) In the event of election under subsection (g) of this section, the employer shall serve upon
the division commission written notice naming the positions not to be covered and shall not include
such the "employee's" remuneration for premium purposes in all future payroll reports, and such
the partner, proprietor or corporate or executive officer shall is not be deemed considered an
employee within the meaning of this chapter after such the notice has been served. Notwithstanding
the provisions of subsection (g), section five of this article, if an employer is delinquent or in default
or has not subscribed to the fund even though it is obligated to do so under the provisions of this
article, then any such partner, proprietor or corporate or executive officer shall not be covered and
shall not receive the benefits of this chapter.
(i) "Regularly employing" or "regular employment" shall mean means employment by an
employer which is not a casual employer under this section.
§23-2-1c. Extraterritorial coverage; approval and change of agreements.
(a) Whenever, with respect to an employee of an employer who is a subscriber in good
standing to the workers' compensation fund or an employer who has elected to pay compensation
directly, as provided in section nine of this article, there is a possibility of conflict with respect to
the application of workers' compensation laws because the contract of employment is entered into
and all or some portion of the work is performed or is to be performed in a state or states other than
this state, the employer and the employee may agree to be bound by the laws of this state or by the
laws of such any other state in which all or some portion of the work of the employee is to be
performed: Provided, That the commissioner shall have the authority to executive director may
review and accept or reject any such the agreement. Any such The review shall be conducted in
keeping with the commissioner's executive director's fiduciary obligations to the workers' compensation fund which may include, among other things, the nexus of the employer and the
employee to the state: Provided, however, That nothing in this section shall be construed so as to
require such an agreement in those instances where subdivision (3), subsection (b), section one of
this article or subdivision (1), subsection (a), section one-a of this article are applicable. Such
agreement All agreements shall be in writing and filed with the commissioner executive director
within ten days after execution thereof of the agreement but shall not become effective until
approved by the commissioner executive director and shall, thereafter, remain in effect until
terminated or modified by agreement of the parties similarly filed or by order of the commissioner
executive director. If the parties agree to be bound by the laws of this state, an employee injured
within the terms and provisions of this chapter shall be is entitled to benefits under this chapter
regardless of the situs of the injury or exposure to occupational pneumoconiosis or other
occupational disease, and the rights of the employee and his or her dependents under the laws of this
state shall be the exclusive remedy against the employer on account of injury, disease or death in
the course of and as a result of the employment.
(b) If the parties agree to be bound by the laws of another state and the employer has
complied with the laws of that state, the rights of the employee and his or her dependents under the
laws of that state shall be the exclusive remedy against the employer on account of injury, disease
or death in the course of and as a result of the employment without regard to the situs of the injury
or exposure to occupational pneumoconiosis or other occupational disease.
(c) If the employee is a resident of a state other than this state and is subject to the terms and
provisions of the workers' compensation law or similar laws of a state other than this state, such the
employee and his or her dependents shall not be are not entitled to the benefits payable under this
chapter on account of injury, disease or death in the course of and as a result of employment temporarily within this state, and the rights of such the employee and his or her dependents under
the laws of such the other state shall be the exclusive remedy against the employer on account of
such any injury, disease or death.
(d) If any employee or his or her dependents be are awarded workers' compensation benefits
or recover damages from the employer under the laws of another state for an injury received in the
course of and resulting from the employment, the amount so awarded or recovered, whether paid
or to be paid in future installments, shall be credited against the amount of any benefits payable
under this chapter for the same injury.
§23-2-1d. Primary contractor liability; definitions; applications and exceptions; certificates
of good standing; reimbursement and indemnification; termination of contracts;
effective date; collections efforts.
(a) For the exclusive purposes of this section, the term "employer" as defined in section one
of this article shall include includes any primary contractor who regularly subcontracts with other
employers for the performance of any work arising from or as a result of the primary contractor's
own contract: Provided, however, That a subcontractor shall does not include one providing goods
rather than services. For purposes of this subsection, extraction of natural resources is a provision
of services. In the event that such a subcontracting employer defaults on its obligations to make
payments to the commissioner commission, then such the primary contractor shall be is liable for
such the payments. Notwithstanding the foregoing However, nothing contained in this section shall
extend or except to such a primary contractor or subcontractors the provisions of section six, six-a
or eight of this article. This section is applicable only with regard to subcontractors with whom the
primary contractor has a contract for any work or services for a period longer than thirty days:
Provided, That this section shall also be is also applicable to contracts for consecutive periods of work that total more than thirty days. It is not applicable to the primary contractor with regard to
sub-subcontractors. However, a subcontractor for the purposes of a contract with the primary
contractor can itself become a primary contractor with regard to other employers with whom it
subcontracts. It is the intent of the Legislature that no contractor, whether a primary contractor,
subcontractor or sub-subcontractor, escape or avoid liability for any workers' compensation
premium, assessment or tax. The executive director shall propose for promulgation a rule to effect
this purpose on or before the thirty-first day of December, two thousand three.
(b) A primary contractor may avoid initial liability under subsection (a) of this section if it
obtains from the commissioner executive director, prior to the initial performance of any work by
the subcontractor's employees, a certificate that the subcontractor is in good standing with the
workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior to the initial performance of any
work by the subcontractor shall result results in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes, premium deposits, interest and other
penalties arising during the life of the contract or due to work performed in furtherance of the
contract: Provided, That the division shall be commission is entitled to collect only once for the
amount of premiums, premium deposits and interest due to the default, but the division commission
may impose other penalties on the primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this section, the primary contractor shall
request that the commissioner of the bureau of employment programs commission inform the
primary contractor of any subsequent default by the subcontractor. In the event that the
subcontractor does default, the commissioner commission shall then notify the primary contractor
of the default by placing a notice in the first-class United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the commissioner commission by the primary
contractor. Such The mailing shall be is good and sufficient notice to the primary contractor of the
subcontractor's default. However, the primary contractor shall is not become liable under this
section until the first day of the calendar quarter following the calendar quarter in which the notice
is given and then such the liability shall is only be for that following calendar quarter and thereafter
and only if the subcontract has not been terminated: Provided, That the commissioner shall be
commission is entitled to collect only once for the amount of premiums, premium deposits and
interest due to the default, but the commissioner commission may impose other penalties on the
primary contractor or on the subcontractor, or both.
(c) In any situation where a subcontractor defaults with regard to its payment obligations
under this chapter or fails to provide a certificate of good standing as provided for in this section,
such the default or failure shall be is good and sufficient cause for a primary contractor to hold the
subcontractor responsible and to seek reimbursement or indemnification for any amounts paid on
behalf of the subcontractor to avoid or cure a workers' compensation default, plus related costs
including reasonable attorneys' fees, and to terminate its subcontract with the subcontractor
notwithstanding any provision to the contrary in the contract.
(d) The provisions of this section are applicable only to those contracts entered into or
extended on or after the first day of January, one thousand nine hundred ninety-four.
(e) The division commission may take any action authorized by section five-a of this article
in furtherance of its efforts to collect amounts due from the primary contractor under this section.
§23-2-2. Commission to be furnished information by employers, state tax commissioner and
division of unemployment compensation; secrecy of information; examination of
employers, etc.; violation a misdemeanor.
(a) Every employer shall furnish the commissioner executive director, upon request, all
information required by him or her to carry out the purposes of this chapter. Every employer shall
have a continuous and ongoing duty to maintain current information about its activities, risks and
rates on the books of the commission. The commissioner executive director, or any person
employed by the commissioner commission for that purpose, shall have the right to may examine
under oath any employer or officer, agent or employee of any employer.
(b) Notwithstanding the provisions of any other statute to the contrary, specifically, but not
exclusively, sections five and five-b, article ten, chapter eleven of this code and section eleven,
article ten, chapter twenty-one-a of this code, the commissioner of the bureau of employment
programs executive director of the workers' compensation commission may receive the following
information:
(1) Upon written request to the state tax commissioner: The names, addresses, places of
business and other identifying information of all businesses receiving a business franchise
registration certificate and the dates thereof; and the names and social security numbers or other tax
identification numbers of the businesses and of the businesses' workers and employees, if otherwise
collected, and the quarterly and annual gross wages or other compensation paid to the workers and
employees of such businesses reported pursuant to the requirement of withholding of tax on income.
(2) Upon written application to the division of unemployment compensation: In addition to
the information that may be released to the division of workers' compensation commission for the
purposes of this chapter under the provisions of chapter twenty-one-a of this code, the names,
addresses and other identifying information of all employing units filing reports and information
pursuant to section eleven, article ten, chapter twenty-one-a of this code as well as information
contained in those reports regarding the number and names, addresses and social security numbers of employees employed and the gross quarterly wages paid by each employing unit to each
identified employee.
(c) All information acquired by the division of workers' compensation commission pursuant
to subsection (b) of this section shall be used only for auditing premium payments, assisting in a
wage determination, assisting in the determination of employment status and registering businesses
under the single point of registration program as defined in section two, article one, chapter eleven
of this code. The division of workers' compensation commission, upon receiving the business
franchise registration certificate information made available pursuant to subsection (b) of this
section, shall contact all businesses receiving a business franchise registration certificate and provide
all necessary forms to register the business under the provisions of this article. Any officer or
employee of this state who uses the aforementioned information obtained under this section in any
manner other than the one stated herein in this section or elsewhere authorized in this code, or who
divulges or makes known in any manner any of the aforementioned information obtained under this
section, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or imprisoned incarcerated in the county or regional jail for not more than
one year, or both, together with cost of prosecution.
(d) Reasonable costs of compilation and production of any information made available
pursuant to subsection (b) of this section shall be charged to the division of workers' compensation
commission.
(e) Information acquired by the commissioner commission pursuant to subsection (b) of this
section shall is not be subject to disclosure under the provisions of chapter twenty-nine-b of this
code.
§23-2-3. Report forms and other forms for use of employers.
The division commission shall prepare and furnish report forms for the use of employers
subject to this chapter. Every employer receiving from the division commission any form or forms
with direction for completion and returning to the division commission shall return the same form,
within the period fixed by the division commission, completed so as to answer fully and correctly
all pertinent questions therein propounded in the form, and if unable to do so, shall give good and
sufficient reasons for such the failure. Every employer subject to the provisions of this chapter, shall
make application to the division commission on the forms prescribed by the division commission
for such that purpose; and any employer who shall terminate terminates his or her business or for
any other reason is no longer subject to this chapter shall so immediately notify the division
commission on forms to be furnished by the division commission for that purpose.
§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems;
accounts.
(a) The commissioner in conjunction with the compensation programs performance council
executive director with approval of the board of managers is authorized to establish by rule a system
for determining the classification and distribution into classes of employers subject to this chapter,
a system for determining rates of premium taxes applicable to employers subject to this chapter, a
system of multiple policy options with criteria for subscription thereto and criteria for an annual
employer's statement providing both benefits liability information and rate determination
information.
(1) In addition, the rule shall provide for, but not be limited to:
(A) Rate adjustments by industry or individual employer, including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments
will be in effect;
(C) Chargeability of claims; and
(D) Such Any further matters that are necessary and consistent with the goals of this chapter;
(2) The rule shall be consistent with the duty of the commissioner and the compensation
programs performance council executive director and the board of managers to fix and maintain the
lowest possible rates of premium taxes consistent with the maintenance of a solvent workers'
compensation fund and the reduction of any deficit that may exist in such fund the funds and in
keeping with their fiduciary obligations to the fund;
(3) The rule shall be consistent with generally accepted accounting principles;
(4) The rule shall be consistent with classification and rate-making methodologies found in
the insurance industry; and
(5) The rule shall be consistent with the principles of promoting more effective workplace
health and safety programs as contained in article two-b of this chapter.
(b) Notwithstanding any other provision of this chapter to the contrary, the compensation
programs performance council may elect to premise its premium tax determination methodology
on the aggregate number of hours worked by employees of the employer rather than upon the gross
wages of the employer. Such an election may apply to all industrial classifications or to less than
all. If this election is made, then in all instances in which this chapter refers to gross wage reports
for the purpose of premium tax determination such references shall be taken to mean a report of the
number of hours so worked.
(c) The rule authorized by subsection (a) of this section shall be promulgated on or before
the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated,
the prior provisions of this section, as found in chapter one hundred seventy-one of the acts of the
Legislature, one thousand nine hundred ninety-three, shall remain in effect.
(d) (b) In accordance with generally accepted accounting principles, the workers'
compensation division commission shall keep an accurate accounting of all money or moneys
earned, due and received by the workers' compensation fund and of the liability incurred and
disbursements made against the same fund; and an accurate account of all money or moneys earned,
due and received from each individual subscriber and of the liability incurred and disbursements
made against the same.
(c) Prospective rates set in accordance with the provisions of this article shall at all times be
financially sound in accordance with generally accepted accounting principles and fully fund the
prospective claim obligations for the year in which the rates were made. Rates, surcharges or
assessments for deficit management and deficit reduction purposes shall be fair and equitable,
financially sound in accordance with generally accepted accounting principles and sufficient to meet
the payment obligations of the fund.
_____(d) Notwithstanding any provision of subsection (c) of this section to the contrary, except
for those increases made effective for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article three, chapter twenty-one-a of this
code taken prior to the effective date of the amendment and reenactment of this section, base rates,
assessments and surcharges shall not be increased during fiscal years two thousand four, two
thousand five and two thousand six.
§23-2-5. Application; payment of premium taxes; gross wages; payroll report; deposits;
delinquency; default; reinstatement; payment of benefits; notice to employees; criminal
provisions; penalties.
(a) For the purpose of creating a workers' compensation fund, each employer who is required
to subscribe to the fund or who elects to subscribe to the fund shall pay premium taxes calculated as a percentage of the employer's gross wages payroll as defined by the commission at the rate
determined by the workers' compensation division commission and then in effect plus any
additional premium taxes developed from rates, surcharges, or assessments as determined by the
commission. At the time each employer subscribes to the fund, the application required by the
division commission shall be filed and a premium deposit equal to the first quarter's estimated
premium tax payment shall be remitted. The minimum quarterly premium to be paid by any
employer shall be is twenty-five dollars.
(1) Thereafter, the premium taxes shall be paid quarterly on or before the last day of the
month following the end of the quarter, and shall be the prescribed percentage of the entire gross
wages of all employees, from which net payroll is calculated and paid, during the preceding quarter.
The division commission may permit require employers, who qualify under in accordance with the
provisions of rules promulgated proposed by the compensation programs performance council
executive director and promulgated by the board of managers, to report gross wages and pay
premium taxes monthly or at other intervals.
(2) Every subscribing employer shall make a gross wages payroll report to the division
commission for the preceding reporting period. The report shall be on the form or forms prescribed
by the division commission and shall contain all information required by the division commission.
(3) After subscribing to the fund, each employer shall remit with each premium tax payment
an amount calculated to be sufficient to maintain a premium deposit equal to the premium payment
for the previous reporting period. The division commission may reduce the amount of the premium
deposit required from seasonal employers for those quarters during which employment is
significantly reduced. If the employer pays premium tax on a basis other than quarterly, the division
commission may require the deposit to be based upon some other time period. The premium deposit shall be credited to the employer's account on the books of the division commission and used to pay
premium taxes and any other sums due the fund when an employer becomes delinquent or in default
as provided in this article.
(4) All premium taxes and premium deposits required by this article to be paid shall be paid
by the employers to the division commission, which shall maintain a record of all sums so received.
Any such sum mailed to the division shall be deemed commission is considered to be received on
the date the envelope transmitting it is postmarked by the United States postal service. All sums
received by the division commission shall be deposited in the state treasury to the credit of the
workers' compensation division commission in the manner now prescribed by law.
(5) The division may commission shall encourage employer efforts to create and maintain
safe workplaces, to encourage loss prevention programs and to encourage employer-provided
wellness programs, through the normal operation of the experience rating formula, seminars and
other public presentations, the development of model safety programs and other initiatives as may
be determined by the commissioner and the compensation programs performance council executive
director and the board of managers.
(b) Failure of an employer to timely pay premium taxes as provided for in subsection (a) of
this section, to timely file a payroll report or to maintain an adequate premium deposit shall cause
the employer's account to become delinquent. No employer will be declared delinquent or be
assessed any penalty therefor for the delinquency if the division commission determines that such
the delinquency has been caused by delays in the administration of the fund. The division
commission shall, in writing, within sixty days of the end of each quarter notify all delinquent
employers of their failure to timely pay premium taxes, to timely file a payroll report or to maintain
an adequate premium deposit. Each employer who shall fail fails to timely file any quarterly payroll report or timely pay the premium tax due with such the report, or both, for any quarter commencing
on and after the first day of July, one thousand nine hundred ninety-five, shall pay a late reporting
or payment penalty of the greater of fifty dollars or a sum obtained by multiplying the premium tax
due with such the report by the penalty rate applicable to that quarter. The penalty rate to be used
in a workers' compensation division's commission's fiscal year shall be is calculated annually on
the first day of each fiscal year. The penalty rate used to calculate the penalty for each quarter in
a fiscal year is the quotient, rounded to the nearest higher whole number percentage rate, obtained
by dividing the sum of the prime rate plus four percent by four. The prime rate shall be is the rate
published in the Wall Street Journal on the last business day of the division's commission's prior
fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the
nation's thirty largest banks. Such The late penalty shall be paid with the most recent quarter's
report and payment and is due when that quarter's report and payment are filed. If such the late
penalty is not paid when due, the same it may be charged to and collected by the division
commission from the employer's premium deposit account or otherwise as provided for by law. The
notification shall demand the filing of the delinquent payroll report and payment of delinquent
premium taxes, the penalty for late reporting or payment of premium taxes or premium deposit, the
interest penalty and an amount sufficient to maintain the premium deposit before the end of the third
month following the end of the preceding quarter. Interest shall accrue and be charged on the
delinquent premium payment and premium deposit pursuant to section thirteen of this article.
(c) Whenever the division commission notifies an employer of the delinquent status of its
account, the notification shall explain the legal consequence of subsequent default by an employer
required to subscribe to the fund and the legal consequences of termination of an electing
employer's account.
(d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve
the delinquency within the prescribed period, shall place the account in default and shall deprive
such the default employer of the benefits and protection afforded by this chapter, including section
six of this article, and the employer shall be is liable as provided in section eight of this article. The
default employer's liability under said these sections shall be is retroactive to midnight of the last
day of the month following the end of the quarter for which the delinquency occurs. The division
commission shall notify the default employer of the method by which the employer may be
reinstated with the fund. The division commission shall also notify the employees of such the
employer by written notice as hereinafter provided for in this section.
(e) Failure by any employer, who voluntarily elects to subscribe, to resolve the delinquency
within the prescribed period shall place the account in default and shall automatically terminate the
election of such the employer to pay into the workers' compensation fund and shall deprive such
the employer and the employees of the default elective employer of the benefits and protection
afforded by this chapter, including section six of this article, and such the employer shall be is liable
as provided in section eight of this article. The default employer's liability under said that section
shall be is retroactive to midnight of the last day of the month following the end of the quarter for
which the delinquency occurs. Employees who were the subject of the default employer's voluntary
election to provide them the benefits afforded by this chapter shall have such the protection
terminated at the time of their employer's default.
(f)(1) Except as provided for in subdivision (3) of this subsection, any employer who is
required to subscribe to the fund and who is in default on the effective date of this section or who
subsequently defaults, and any employer who has elected to subscribe to the fund and who defaults
and whose account is terminated prior to the effective date of this section or whose account is subsequently terminated, shall be restored immediately to the benefits and protection of this chapter
only upon the filing of all delinquent payroll and other reports required by the division commission
and payment into the fund of all unpaid premiums, an adequate premium deposit, accrued interest
and the penalty for late reporting and payment. Interest shall be is calculated as provided for by
section thirteen of this article.
The division commission shall not have the authority to waive either premium or accrued
interest. The provisions of section seventeen of this article apply to any action or decision of the
division commission under this section.
(2) The division shall have the authority to commission may restore a defaulted or terminated
employer through a reinstatement agreement. Such The reinstatement agreement shall require the
payment in full of all premium taxes, premium deposits, the penalty for late reporting and payment,
past accrued interest and future interest calculated pursuant to the provisions of section thirteen of
this article. Notwithstanding the filing of a reinstatement application or the entering into of a
reinstatement agreement, the division commission is authorized to file a lien against the employer
as provided by section five-a of this article. In addition, entry into a reinstatement agreement is
discretionary with the division commission. Such Its discretion shall be exercised in keeping with
the fiduciary obligations owed to the workers' compensation fund. Should If the division decline
commission declines to enter into a reinstatement agreement and should if the employer does not
comply with the provisions of subdivision (1) of this subsection, then the division commission may
proceed with any of the collection efforts provided for by section five-a of this article or as
otherwise provided for by this code. Applications for reinstatement shall: (A) Be made upon forms
prescribed by the division commission; (B) include a report of the gross wages payroll of the
employer which had not been reported to the division commission during the entire period of delinquency and default, which . The gross wages information shall be certified by the employer
or its authorized agent; and (C) include a payment of a portion of the liability equal to one half of
one percent of the gross payroll during the period of delinquency and default or equal to another
portion of the liability as may be determined, from time to time, by rule but not to exceed the
amount of the entire liability due and owing for the period of delinquency and default. An employer
who applies for reinstatement shall be is entitled to the benefits and protection of this chapter on the
day a properly completed and acceptable application which is accompanied by the application
payment is received by the division commission: Provided, That if the division commission
reinstates an employer subject to the terms of a reinstatement agreement, the subsequent failure of
the employer to make scheduled payments or to pay accrued or future interest in accordance with
the reinstatement agreement or to timely file current quarterly reports and to pay current quarterly
premiums within the month following the end of the quarter period for which the report and payment
are due, or to otherwise maintain its account in good standing or, if the reinstatement agreement does
not require earlier restoration of the premium deposit, to restore the premium deposit to the required
amount by the end of the repayment period shall cause the reinstatement application and the
reinstatement agreement to be null, void and of no effect, and the employer shall be is denied the
benefits and protection of this chapter effective from the date that such the employer's account
originally became delinquent.
(3) Any employer who fails to maintain its account in good standing with regard to
subsequent premium taxes and premium deposits after filing an application for reinstatement and
prior to the final resolution of an application for reinstatement by entering into a reinstatement
agreement or by payment of the liability in full as provided for in subdivision (1) of this subsection
shall cause the reinstatement application to be null, void and of no effect, and the employer shall be denied the benefits and protection of this chapter effective from the date that such the employer's
account originally became delinquent.
(4) Following any failure of an employer to comply with the provisions of a reinstatement
agreement, the division commission may then make and continue with any of the collection efforts
provided for by this chapter or elsewhere in this code even if the employer files another
reinstatement application.
(g) With the exception noted in subsection (h), section one of this article, no employee of
an employer required by this chapter to subscribe to the workers' compensation fund shall be denied
benefits provided by this chapter because the employer failed to subscribe or because the employer's
account is either delinquent or in default.
(h)(1) The provisions of this section shall not deprive any individual of any cause of action
which has accrued as a result of an injury or death which occurred during any period of delinquency
not resolved in accordance with the provisions of this article, or subsequent failure to comply with
the terms of the repayment agreement.
(2) Upon withdrawal from the fund or termination of election of any employer, the employer
shall be refunded the balance due the employer of its deposit, after deducting all amounts owed by
the employer to the workers' compensation fund and other agencies of this state, and the division
commission shall notify the employees of such the employer of said the termination in such the
manner as the division commission may deem consider best and sufficient.
(3) Notice to employees in this section provided for in this section shall be given by posting
written notice that the employer is defaulted under the compensation law of West Virginia, and in
the case of employers required by this chapter to subscribe and pay premiums to the fund, that the
defaulted employer is liable to its employees for injury or death, both in workers' compensation benefits and in damages at common law or by statute; and in the case of employers not required by
this chapter to subscribe and pay premiums to the fund, but voluntarily electing to do so as herein
provided in this article, that neither the employer nor the employees of such employer are protected
by said laws the law as to any injury or death sustained after the date specified in said the notice.
Such The notice shall be in the form prescribed by the division commission and shall be posted in
a conspicuous place at the chief works of the employer, as the same appear it appears in records of
the division commission. If said the chief works of the employer cannot be found or identified, then
said the notices shall be posted at the front door of the courthouse of the county in which said the
chief works are located, according to the division's commission's records. Any person who shall,
prior to the reinstatement of said the employer, as hereinbefore provided for in this section, or prior
to sixty days after the posting of said the notice, whichever shall first occur, remove, deface or
render illegible said the notice, shall be guilty of a misdemeanor and, upon conviction thereof, shall
be fined one thousand dollars, and said. The notice shall state this provision upon its face. The
division commission may require any sheriff, deputy sheriff, constable or other official of the state
of West Virginia, who may be authorized to serve civil process, to post such the notice and to make
return thereof of the fact of such the posting to the division commission., and any Any failure of
such the officer to post any notice within ten days after he or she shall have has received the same
notice from the division commission, without just cause or excuse, shall constitute constitutes a
willful failure or refusal to perform a duty required of him or her by law within the meaning of
section twenty-eight, article five, chapter sixty-one of this code. Any person actually injured by
reason of such the failure shall have has an action against said the official, and upon any official
bond he or she may have given, for such the damages as such the person may actually have incurred,
but not to exceed, in the case of any surety upon said the bond, the amount of the penalty of said the bond. Any official posting said the notice as herein required shall be in this subdivision is entitled
to the same fee as is now or may hereafter be provided for the service of process in suits instituted
in courts of record in the state of West Virginia., which The fee shall be paid by the division
commission out of any funds at its disposal, but shall be charged by the division commission against
the account of the employer to whose delinquency such the notice relates.
§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil
remedies; creation and enforcement of lien against employer and purchaser; duty of
secretary of state to register liens; distraint powers; insolvency proceedings; secretary
of state to withhold certificates of dissolution; injunctive relief; bond; attorney fees and
costs.
(a) The workers' compensation division commission in the name of the state may commence
a civil action against an employer who, after due notice, defaults in any payment required by this
chapter. If judgment is against the employer, such the employer shall pay the costs of the action.
Civil A civil action under this section shall be given preference on the calendar of the court over all
other civil actions. Upon prevailing in any such a civil action, the division shall be commission is
entitled to recover its attorneys' fees and costs of action from the employer.
(b) In addition to the foregoing provisions of subsection (a) of this section, any payment,
interest and penalty thereon due and unpaid under this chapter shall be is a personal obligation of
the employer immediately due and owing to the division commission and shall, in addition thereto,
be a lien enforceable against all the property of the employer: Provided, That no such the lien shall
not be enforceable as against a purchaser (including a lien creditor) of real estate or personal
property for a valuable consideration without notice, unless docketed as provided in section one,
article ten-c, chapter thirty-eight of this code: Provided, however, That such the lien may be enforced as other judgment liens are enforced through the provisions of chapter thirty-eight of this
code said chapter and the same shall be is considered deemed by the circuit court to be a judgment
lien for this purpose.
(c) In addition to all other civil remedies prescribed herein, the division commission may in
the name of the state, after giving appropriate notice as required by due process, distrain upon any
personal property, including intangible property, of any employer delinquent for any payment,
interest and penalty thereon. If the division commission has good reason to believe that such the
property or a substantial portion thereof of the property is about to be removed from the county in
which it is situated, upon giving appropriate notice, either before or after the seizure, as is proper
in the circumstances, the division commission may likewise distrain in the name of the state before
such the delinquency occurs. For such that purpose, the division commission may require the
services of a sheriff of any county in the state in levying such the distress in the county in which the
sheriff is an officer and in which such the personal property is situated. A sheriff so collecting any
payment, interest and penalty thereon shall be is entitled to such the compensation as is provided
by law for his or her services in the levy and enforcement of executions. Upon prevailing in any
distraint action, the division shall be commission is entitled to recover its attorneys' fees and costs
of action from the employer.
(d) In case a business subject to the payments, interest and penalties thereon imposed under
this chapter shall be is operated in connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction such the business is operated shall, by the
entry of a proper order or decree in the cause, make provisions, so far as the assets in administration
will permit, for the regular payment of such the payments, interest and penalties as the same they
become due.
(e) The secretary of state of this state shall withhold the issuance of any certificate of
dissolution or withdrawal in the case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do business in this state, until notified
by the division commission that all payments, interest and penalties thereon against any such the
corporation which is an employer under this chapter have been paid or that provision satisfactory
to the division commission has been made for payment.
(f) In any case when an employer required to subscribe to the fund defaults in payments of
premium, premium deposits, penalty or interest thereon, for as many as two calendar quarters, which
quarters need not be consecutive, and remains in default after due notice, the division commission
may bring action in the circuit court of Kanawha County to enjoin such the employer from
continuing to carry on the business in which such the liability was incurred: Provided, That the
division commission may as an alternative to this action require such the delinquent employer to file
a bond in the form prescribed by the commissioner commission with satisfactory surety in an
amount not less than fifty percent more than the payments, interest and penalties due.
§23-2-5c. Statute of limitations; effective date for new payments; previous payments due not
affected.
For payments due after the effective date of the amendment and reenactment of this section
during the year one thousand nine hundred ninety-three, every action or process to collect any
premium, premium deposit, interest or penalty due from an employer pursuant to this article by the
commissioner executive director shall be brought or issued within five years next after the date on
which the employer is required by the section imposing the premium, premium deposit, interest or
penalty to file a report and pay the amount due thereunder. The limitation provided by this section
shall likewise also apply to enforcement of the lien, if any, securing the payment of such the premium, premium deposit, interest or penalty, but shall not apply in the event of fraud or in the
event the employer wholly fails to file the report required by the section imposing the premium,
premium deposit, interest or penalty. For payments that were due prior to the effective date of this
section, there shall continue continues to be no limitation on when actions or processes may be
brought or issued. For every debt collectible under this section which first becomes due and owing
after the effective date of the amendment and reenactment of this section during the year two
thousand three, every action or process to collect the debt shall be brought or issued within ten years
after the date on which the employer is required to file a report and pay the amount assessed or owed
to the commission.
§23-2-5d. Uncollectible receivables; write-offs.
Notwithstanding any other provision to the contrary, the division, with the approval of the
compensation programs performance council, executive director, with the approval of the board of
managers, may write-off any uncollected receivable due under the provisions of this article or article
four of this chapter which the division and the compensation programs performance council deem
to be executive director and the board of managers determine uncollectible.
§23-2-6. Exemption of contributing employers from liability.
Any employer subject to this chapter who shall subscribe and pay subscribes and pays into
the workers' compensation fund the premiums provided by this chapter or who shall elect elects to
make direct payments of compensation as herein provided shall in this section is not be liable to
respond in damages at common law or by statute for the injury or death of any employee, however
occurring, after so subscribing or electing, and during any period in which such the employer shall
is not be in default in the payment of such the premiums or direct payments and shall have has
complied fully with all other provisions of this chapter. The continuation Continuation in the service of such the employer shall be considered a waiver by the employee and by the parents of any minor
employee of the right of action as aforesaid, which the employee or his or her parents would
otherwise have: Provided, That in case of employers not required by this chapter to subscribe and
pay premiums into the workers' compensation fund, the injured employee has remained in such the
employer's service with notice that his or her employer has elected to pay into the workers'
compensation fund the premiums provided by this chapter, or has elected to make direct payments
as aforesaid.
§23-2-9. Election of employer or employers' group to be self-insured and to provide own
system of compensation; exceptions; catastrophe coverage; self administration; rules;
penalties; regulation of self-insurers.
(a) Notwithstanding any provisions of this chapter to the contrary, the following types of
employers or employers' groups may apply for permission to self-insure their workers'
compensation risk including their risk of catastrophic injuries. Except as provided for in subsection
(e) of this section, no employer may self-insure its second injury risk.
(1) The types of employers are:
(A) Any employer who is of sufficient capability and financial responsibility to ensure the
payment to injured employees and the dependents of fatally injured employees of benefits provided
for in this chapter at least equal in value to the compensation provided for in this chapter; or
(B) Any employer of such capability and financial responsibility who maintains its own
benefit fund or system of compensation to which its employees are not required or permitted to
contribute and whose benefits are at least equal in value to those provided for in this chapter; or
_____(C) Any group of employers who are subject to the same collective bargaining agreement
or who are in a collective bargaining group may apply to the commission to collectively self-insure their obligations under this chapter. The employers' group must individually and collectively meet
the conditions set forth in paragraph (A) or (B) of this subdivision. There shall be joint and several
liability for all groups of employers who choose to self-insure under the provisions of this article.
(2) In order to be approved for self-insurance status, the employer must shall:
(A) Have an effective health and safety program at its workplaces; and
(B) Provide security or bond in an amount and form to be determined by the compensation
programs performance council executive director with the approval of the board of managers which
shall balance the employer's financial condition based upon an analysis of its audited financial
statements and the full accrued value of current liability for future claim payments based upon
generally accepted actuarial and accounting principles of the employer's existing and expected
liability; and
(C) Security or bond which may be in such form as the commissioner and the compensation
programs performance council created pursuant to section one, article three, chapter twenty-one-a
of this code permits.
(3) Any employer whose record upon the books of the division commission shows a liability,
as determined on an accrued basis against the workers' compensation fund incurred on account of
injury to or death of any of the employer's employees, in excess of premiums paid by such the
employer, shall not be granted the right, individually and directly or from such the benefit funds or
system of compensation, to be self-insured until the employer has paid into the workers'
compensation fund the amount of such the excess of liability over premiums paid, including the
employer's proper proportion of the liability incurred on account of catastrophes or second injuries
as defined in section one, article three of this chapter and charged against such fund.
(4) Upon a finding that the employer has met all of the requirements of this section, the employer may be permitted self-insurance status. An annual review of each self-insurer's continuing
ability to meet its obligations and the requirements of this section shall be made by the workers'
compensation division commission. This review shall include a redetermination of the amount of
security or bond which shall be provided by the employer. Failure to provide any new amount or
form of security or bond may, in the division's discretion, cause the employer's self-insurance status
to be terminated by the workers' compensation commission. The security or bond provided by
employers prior to the second day of February, one thousand nine hundred ninety-five, shall
continue in full force and effect until the performance of the employer's annual review and the entry
of any appropriate decision on the amount or form of the employer's security or bond.
(5) Whenever a self-insured employer shall furnish furnishes security or bond, including
replacement and amended bonds and other securities, as security surety to ensure the employer's or
guarantor's payment of all obligations under this chapter for which the security or bond was
furnished, such the security or bond shall be in the most current form or forms approved and
authorized by the division commission for use by the employer or its guarantors, surety companies,
banks, financial institutions or others in its behalf for such that purpose.
(b)(1) Notwithstanding any provision in this chapter to the contrary, self-insured employers
shall, effective the first day of July, two thousand four, administer their own claims. The executive
director shall, pursuant to rules promulgated by the board of managers, regulate the administration
of claims by employers granted permission to self-insure their obligations under this chapter. Such
rules shall be promulgated at least thirty days prior to the first day of July, two thousand four. A
self-insured employer shall comply with rules promulgated by the board of managers governing the
self-administration of its claims.
_____(2) An employer or employers' group who self-insures its risk and self-administers its claims shall exercise all authority and responsibility granted to the commission in this chapter and provide
notices of action taken to effect the purposes of this chapter to provide benefits to persons who have
suffered injuries or diseases covered by this chapter. An employer or employers' group granted
permission to self-insure and self-administer its obligations under this chapter shall at all times be
bound and shall comply fully with all of the provisions of this chapter. Furthermore, all of the
provisions contained in article four of this chapter pertaining to disability and death benefits are
binding on and shall be strictly adhered to by the self-insured employer in its administration of
claims presented by employees of the self-insured employer. Violations of the provisions of this
chapter and such rules relating to this chapter as may be approved by the board of managers may
constitute sufficient grounds for the termination of the authority for any employer to self-insure its
obligations under this chapter. Claim notices currently generated by the commission on behalf of
self-insured employers must be generated and sent by the self-insured employer or its third-party
administrator.
_____(b) (c) Each self-insured employer shall, on or before the last day of the first month of each
quarter, file with the division commission a certified statement of the total gross wages and earnings
of all of the employer's employees subject to this chapter for the preceding quarter. Each self-
insured employer shall pay into the workers' compensation fund as portions of its self-insured
premium tax:
(1) A sum sufficient to pay the employer's proper portion of the expense of the
administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of the expense of claims for those
employers who are in default in the payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of the expenses of the disabled workers' relief fund; and
(4) A sum sufficient to maintain as an advance deposit an amount equal to the previous
quarter's payment of each of the foregoing three sums;
(5) A sum as determined by the commission to be sufficient to pay the employer's portion
of rates, surcharges or deficit management and deficit reduction assessments; and
_____(6) A sum as determined by the commission to pay the employer's portion of self-insured
catastrophic injury benefits, and second injury payments on all self-insured second injury claims
other than second injury claims for those employers self-insured for second injury. Any employer
previously self-insured for second injury benefits shall continue to be responsible for payment of
those benefits.
_____(c)(d) The required payments to the employer's injured employees or dependents of fatally
injured employees as benefits provided for by this chapter including second injury benefits and
catastrophic injury benefits, if applicable, shall constitute the remaining portion of the self-insurer's
premium tax.
_____(e) Notwithstanding any provision of subsection (d) of this section to the contrary, except
for those increases made effective for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article three, chapter twenty-one-a of this
code taken prior to the effective date of the amendment and reenactment of this section, the portion
of the premium taxes for each self-insured employer as determined under subdivisions (1) through
(6), subsection (c) of this section shall not be increased during fiscal years two thousand four, two
thousand five and two thousand six.
_____(f)(1) If an employer defaults in the payment of any portion of its self-insured premium
taxes, surcharges or assessments, the division commission may shall, in an appropriate case, determine the full accrued value based upon generally accepted actuarial and accounting principles
of the employer's liability including the costs of all awarded claims and of all incurred but not
reported claims. The amount so determined may then, in an appropriate case, be assessed against
the employer. and the division The commission may demand and collect the present value of such
the defaulted tax liability. Interest shall accrue upon the demanded amount as provided for in
section thirteen of this article until the premium tax is fully paid. Payment of all amounts then due
to the division commission and to the employer's employees is a sufficient basis for reinstating the
employer to good standing with the fund. In addition, any self-insured employer who, without good
cause, ceases to make required payments to the employer's injured employees or dependents of
fatally injured employees as benefits provided for by this chapter including second injury benefits
and catastrophic injury benefits, if applicable, is in default. The board of managers shall establish
by rule the procedures by which the existence or non-existence of good cause is to be determined
by the commission.
(2) Such premium Premium tax assessments are special revenue taxes under and according
to the provisions of state workers' compensation law and are deemed considered to be tax claims,
as priority claims or administrative expense claims according to those provisions under the law
provided in the United States bankruptcy code, Title 11 of the United States Code. In addition, as
the same was previously intended by the prior provisions of this section, this amendment and
reenactment is for the purpose of clarification of the taxing authority of the workers' compensation
division commission.
(d)(g) Each self-insured employer shall elect whether or not to self-insure its catastrophic
injury risk as defined in subsection (c), section one, article three of this chapter. A self-insured
employer who elects to insure its catastrophic risk through a policy of excess insurance obtained through a private insurance carrier approved by the commission shall provide a copy of the policy
to the commission.
(1) If the employer does not elect to self-insure its catastrophic risk, then the employer shall
pay premium taxes for this coverage in the same manner as is provided for in section four of this
article and in rules adopted to implement said that section. Until such rules are adopted, the
employer's premium taxes shall be determined in accordance with the provisions of chapter one
hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one. If the
employees of such an that employer suffer injury or death from a catastrophe, then the payment of
the resulting benefits shall be made from the catastrophe reserve of the surplus fund provided for
in subsection (b), section one, article three of this chapter. Such Any portion of an employer's
catastrophic liability insured and paid under a policy of insurance purchased by the employer shall
not be included in the liabilities upon which the employer's security or bond is determined in
subsection (a) of this section.
(2) If an otherwise self-insured employer elects to self-insure its catastrophic risk, then the
security or bond required in subsection (a) of this section shall include the liability for the
catastrophic risk.
(e)(1) Any self-insured employer who was, prior to the second day of February, one thousand
nine hundred ninety-five, permitted to self-insure its second injury risk as defined in subsection (d),
section one, article three of this chapter, may elect to continue to self-insure its second injury risk
for so long as it meets the requirements of this chapter. Any employer which was previously
permitted to self-insure its second injury risk who then elects to terminate that self-insurance status
shall not thereafter be permitted to self-insure its second injury risk.
(2) (h) For those employers previously permitted to self-insure their second injury risks, the amount of the security or bond required in subsection (a) of this section shall include the liability
for that risk. All benefits provided for by this chapter which are awarded to the employer's
employees which constitute second injury life awards shall then be paid by the employer and not
the division commission.
(3) (A) For those employers which do not self-insure their second injury risk, the premium
tax for second injury coverage shall be determined by the rules which implement section four of this
article. Such rules may provide for merit rate adjustments of the amount of premium tax to be paid
based upon the accrued costs to be determined under generally accepted accounting principles of
second injury benefits paid and to be paid to the employer's employees. Until such rules are adopted,
the employer's premium taxes shall be determined in accordance with the provisions of chapter one
hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one.
(B) In case there is a second injury to an employee of any employer making such second
injury premium tax payments, the employer shall be liable to pay compensation or expenses arising
from or necessitated by the second injury and such compensation and expenses shall be charged
against the employer. After the completion of these payments, the employee shall be paid the
remainder of the compensation and expenses that would be due for permanent total disability from
the second injury reserve of the surplus fund. Such additional compensation and expenses shall not
be charged against such employer.
(f)(i) The compensation programs performance council commission may create, implement,
establish and administer a perpetual self-insurance security risk pool of funds, sureties, securities,
insurance provided by private insurance carriers or other states' programs, and other property, of
both real and personal properties, to secure the payment of obligations of self-insured employers.
If such a pool is created, the compensation programs performance council board of managers shall adopt rules for the organizational plan, participation, contributions and other payments which may
be required of self-insured employers under this section. The council, in order to create and fund
such a risk pool, board of managers may adopt a rule authorizing the division commission to assess
each self-insured employer in proportion according to each employer's portion of the unsecured
obligation and liability or to assess according to some other method provided for by rule which shall
properly create and fund such the risk pool to serve the needs of employees, employers and the
workers' compensation fund by providing adequate security. The council board of managers, in
funding such establishing a security risk pool, may authorize the division executive director to use
any assessments, premium tax assessments taxes and revenues and appropriations as may be made
available to the division commission.
(g)(j) Any self-insured employer which has had a period of inactivity due to the
nonemployment of employees which results in its reporting of no wages on quarterly reports to the
division commission for a period of four or more consecutive quarters shall have its status at the
division commission inactivated and shall be required to apply for reactivation to status as a self-
insured employer prior to its reemployment of employees. Despite such the inactivation, the self-
insured employer shall continue to make payments on all awards for which it is responsible. Upon
application for reactivation of its status as an operating self-insured employer, the employer must
shall document that it meets the eligibility requirements needed to maintain self-insured status under
this section and any rules adopted to implement it. If the employer is unable to requalify and obtain
approval for reactivation, the employer shall, effective with the date of employment of any
employee, become a subscriber to the workers' compensation fund, but shall continue to be a self-
insurer as to the prior period of active status and to furnish security or bond and meet its prior self-
insurance obligations.
(h)(k) In any case under the provisions of this section that shall require the payment of
compensation or benefits by an employer in periodical payments and the nature of the case makes
it possible to compute the present value of all future payments, then the division commission may,
in its discretion, at any time compute and permit to be paid into the workers' compensation fund an
amount equal to the present value of all unpaid future payments on the award or awards for which
liability exists in trust. Thereafter, such the employer shall be discharged from any further portion
of premium tax liability upon such the award or awards and payment of the award or awards shall
be assumed by the division commission.
(i)(l) Any employer subject to this chapter, who shall elect elects to carry the employer's own
risk by being self-insured and who has complied with the requirements of this section and of any
applicable rules, shall not be liable to respond in damages at common law or by statute for the injury
or death of any employee, however occurring, after such the election's approval and during the
period that the employer is allowed to carry the employer's own risk.
(m) An employer may not hire any person or group to self-administer claims under this
chapter as a third-party administrator unless the person or group has been determined to be qualified
to be a third-party administrator by the commission pursuant to rules adopted by the board of
managers. Any person or group whose status as a third-party administrator has been revoked,
suspended or terminated by the commission shall immediately cease administration of claims and
shall not administer claims unless subsequently authorized by the commission.
§23-2-10. Application of chapter to interstate commerce.
(a) In case any employer within the meaning of this chapter is also engaged in interstate or
foreign commerce, and for whom a rule of liability or method of compensation has been established
by the Congress of the United States, this chapter shall apply applies to him or her only to the extent that his or her mutual connection with work in this state is clearly separable and distinguishable
from his or her interstate work, and to the extent that such the work in this state is clearly separable
and distinguishable from his or her interstate work, such the employer shall be is subject to the terms
and provisions of this chapter in like manner as all other employers hereunder under this chapter.
Payments of premiums shall be on the basis of the payroll of those employees who perform work
in this state only.
(b) Unless and until the Congress of the United States has by appropriate legislation
established a rule of liability or method of compensation governing employers and employees
engaged in commerce within the purview of the commerce clause of the United States Constitution
(article I, section 8), section one of this article shall apply applies without regard to the interstate or
intrastate character or nature of the work or business engaged in.
§23-2-11. Partial invalidity of chapter.
If any employer shall be is adjudicated to be outside the lawful scope of this chapter, the
chapter shall not apply to him or her or his or her employee; or if any employee shall be is
adjudicated to be outside the lawful scope of this chapter, because of remoteness of his or her work
from the hazard of his or her employer's work, any such the adjudication shall not impair the
validity of this chapter in other respects, and in every such case an accounting in accordance with
the justice of the case shall be had of moneys received. If the provisions of this chapter for the
creation of the workers' compensation fund, or the provisions of this chapter making the
compensation to the employee provided in it exclusive of any other remedy on the part of the
employee, shall be is held invalid, the entire chapter shall be thereby invalidated and an accounting
according to the justice of the case shall be had of money received. In other respects an adjudication
of invalidity of any part of this chapter shall not affect the validity of the chapter as a whole or any part thereof of this chapter.
§23-2-12. Effect of repeal or invalidity of chapter on action for damages.
If the provisions of this chapter relating to compensation for injuries to, or death of,
workmen shall be workers are repealed or adjudged invalid or unconstitutional, the period
intervening between the occurrence of any injury or death and such the repeal, or the final
adjudication of invalidity or unconstitutionality, shall not be computed as a part of the time limited
by law for the commencement of any action relating to such the injuries or death, but the amount
of any compensation which may have been paid on account of such injury or death shall be deducted
from any judgment for damages recovered on account of such the injury or death.
§23-2-13. Interest on past-due payments; reinstatement agreements.
Effective the first day of July, one thousand nine hundred ninety-nine, payments unpaid on
the date on which due and payable shall immediately begin bearing interest as specified hereinafter
in this section. The interest rate per annum for each fiscal year shall be calculated as the greater of
the division's commission's current discount rate or the prime rate plus four percent, each rounded
to the nearest whole percent. The discount rate shall be determined by the compensation programs
performance council board of managers on an annual basis. The prime rate shall be the rate
published in the Wall Street Journal on the last business day of the division's commission's prior
fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the
nation's thirty largest banks. This same rate of interest shall be applicable to all reinstatement
agreements entered into by the commissioner commission pursuant to section five of this article on
and after the effective date of this section: Provided, That if an employer enters into a subsequent
reinstatement agreement within seven years of the date of the first agreement, the interest rate shall
be eighteen percent per annum. Interest shall be compounded quarterly until payment plus accrued interest is received by the commissioner commission: Provided, however, That on and after the date
of execution of a reinstatement agreement, for determining future interest on any past-due premium,
premium deposit, and past compounded interest thereon, any reinstatement agreement entered into
by the commissioner commission shall provide for a simple rate of interest, determined in
accordance with the provisions of this section which shall is not be subject to change during the life
of the reinstatement agreement for such the future interest. Interest collected pursuant to this section
shall be paid into the workers' compensation fund: Provided further, That in no event shall the rate
of interest charged a political subdivision of the state or a volunteer fire department pursuant to this
section exceed ten percent per annum.
§23-2-14. Sale or transfer of business; attachment of lien for premium, etc., payments due;
criminal penalties for failure to pay; creation and avoidance or elimination of lien;
enforcement of lien; successor liability.
(a) If any employer shall sell sells or otherwise transfer transfers substantially all of the
employer's assets, so as to give up substantially all of the employer's capacity and ability to
continue in the business in which the employer has previously engaged then:
(1) Such The employer's premium taxes, premium deposits, interest and other payments
owed to the division shall be commission are due and owing to the division commission upon the
execution of the agreement of sale or other transfer;
(2) Any repayment agreement entered into by the employer with the division commission
pursuant to section five of the this article shall terminate terminates upon the execution of the
aforesaid agreement of sale or other transfer and all amounts owed to the division commission but
not yet paid shall become due; and
(3) Upon execution of an agreement of sale or other transfer, as aforesaid, the division commission shall continue to have a lien, as provided for in section five-a of this article, against all
of the remaining property of the employer as well as all of the sold or transferred assets, which. The
lien shall constitute constitutes a personal obligation of the employer.
(b) Notwithstanding any provisions of section five-a of this article to the contrary, in the
event that a new employer acquires by sale or other transfer or assumes all or substantially all of a
predecessor employer's assets then:
(1) Any liens for payments owed to the division commission for premium taxes, premium
deposits, interest or other payments owed to the division commission by the predecessor employer
shall be extended to the successor employer;
(2) Any liens held by the division commission against the predecessor employer's property
shall be extended to all of the assets of the successor employer; and
(3) Liens acquired in the manner described in subdivisions (1) and (2) of this subsection shall
be are enforceable by the division commission to the same extent as provided for the enforcement
of liens against the predecessor employer in section five-a of this article.
(c) Notwithstanding the provisions of section five-a of this article to the contrary, if any
employer as described in subsection (a) of this section shall sell sells or otherwise transfer transfers
a portion of the employer's assets so as to affect the employer's capacity to do business then:
(1) Such The employer's premium taxes, premium deposits, interest and other payments
owed to the division shall be commission are due and owing to the division commission upon the
execution of the agreement of sale or other transfer;
(2) Any repayment agreement entered into by the employer with the division commission
pursuant to section five of the this article shall terminate terminates upon the execution of the
aforesaid agreement of sale or other transfer and all amounts owed to the division commission but not yet paid shall become due; and
(3) Upon execution of an agreement of sale or other transfer, as aforesaid, the division
commission shall continue to have a lien, as provided for in section five-a of this article, against all
of the remaining property of the employer as well as all the sold or transferred assets. which The lien
shall constitute constitutes a personal obligation of the employer.
(d) If an employer subject to subsection (a), (b) or (c) of this section pays to the division
commission, prior to the execution of an agreement of sale or other transfer, a sum sufficient to
retire all of the indebtedness that the employer would owe at the time of the execution, then the
division commission shall issue a certificate to the employer stating that the employer's account is
in good standing with the division commission and that the assets may be sold or otherwise
transferred without the attachment of the division's commission's lien. An agreement of sale or
other transfer may provide for the creation of an escrow account into which the employers shall pay
the full amount owed to the division commission. The subsequent timely payment of that full
amount to the division shall operate commission operates to place both employers in good standing
with the division commission to the extent of the predecessor employer's liabilities retroactive to
the date of sale or other transfer. In the event that the employer would not owe any sum to the
division commission on the aforesaid date of execution, then a certificate shall also be issued to the
employer upon the employer's request stating that the employer's account is in good standing with
the division commission and that the assets may be sold or otherwise transferred without the
attachment of the division's commission's lien.
(e) As used in this article, the term "assets" means all property of whatever type in which
the employer has an interest including, but not limited to, good will goodwill, business assets,
customers, clients, contracts, access to leases such as the right to sublease, assignment of contracts for the sale of products, operations, stock of goods or inventory, accounts receivable, equipment or
transfer of substantially all of its employees.
(f) The transfer of any assets of the employer shall be is presumed to be a transfer of all or
substantially all of the assets if the transfer affects the employer's capacity to do business. The
presumption can be overcome upon petition presented and an administrative hearing in accordance
with section fifteen seventeen of this article and in consideration of the factors thereunder.
(g) The foregoing provisions of this section are expressly intended to impose upon such
successor employers the duty of obtaining from the division commission or predecessor employer,
prior to the date of such the acquisition, a valid "certificate of good standing to transfer a business
or business assets" to verify that the predecessor employer's account with the division commission
is in good standing.
§23-2-15. Liabilities of successor employer; waiver of payment by commission; assignment
of predecessor employer's premium rate to successor.
(a) At any time prior to or following the acquisition described in subsection (a), (b) or (c),
section fourteen of this article, the buyer or other recipient may file a certified petition with the
division commission requesting that the division commission waive the payment by the buyer or
other recipient of premiums, premium deposits, interest and imposition of the modified rate of
premiums attributable to the predecessor employer or other penalty, or any combination thereof. The
division commission shall review the petition by considering the following seven factors set forth
below:
(1) The exact nature of the default;
(2) The amount owed to the division commission;
(3) The solvency of the fund;
(4) The financial condition of the buyer or other recipient;
(5) The equities exhibited towards the fund by the buyer or other recipient during the
acquisition process;
(6) The potential economic impact upon the state and the specific geographic area in which
the buyer or other recipient is to be or is located, if the acquisition were not to occur; and
(7) Whether the assets are purchased in an arms-length transaction.
Unless requested by a party or by the division commission, no hearing need be held on the
petition. However, any decision made by the division commission on the petition shall be in writing
and shall include appropriate findings of fact and conclusions of law. Such The decision shall be
effective ten days following notice to the public of the decision unless an objection is filed in the
manner herein provided in this section. Such notice Notice shall be given by the division's
commission's filing with the secretary of state, for publication in the state register, of a notice of the
decision. At the time of filing the notice of its decision, the division commission shall also file with
the secretary of state a true copy of the decision. The publication shall include a statement advising
that any person objecting to the decision must file, within ten days after publication of the notice,
a verified response with the division commission setting forth the objection and the basis therefor
for the objection. If any such objection is filed, the division commission shall hold an administrative
hearing, conducted pursuant to article five, chapter twenty-nine-a of this code, within fifteen days
of receiving the response unless the buyer or other recipient consents to a later hearing. Nothing in
this subsection shall be construed to be applicable to the seller or other transferor or to affect in any
way a proceeding under sections five and five-a of this article.
(b) In the factual situations set forth in subsection (a), (b) or (c), section fourteen of this
article, if the predecessor's modified rate of premium tax, as calculated in accordance with section four of this article, is greater than the manual rate of premium tax, as calculated in accordance with
said that section, for other employers in the same class or group, then, and if the new employer does
not already have a modified rate of premium, it shall also assume the predecessor employer's
modified rates for the payment of premiums as determined under sections four and five of this
article until sufficient time has elapsed for the new employer's experience record to be combined
with the experience record of the predecessor employer so as to calculate the new employer's own
modified rate of premium tax.
§23-2-16. Acceptance or assignment of premium rate.
(a) If a new corporate employer which is not subject to the provisions of section fifteen of
this article is created by the officers or shareholders of a preexisting corporate employer and if the
new corporate employer and the preexisting corporate employer are: (1) Managed Are managed by
the same, or substantially the same, management personnel; and (2) have a common ownership by
at least forty percent of each corporation's shareholders; and (3) is are in the same class or group
as determined by the commissioner executive director under the provisions of section four of this
article; and (4) if the preexisting corporate employer's account is in good standing with the
commissioner commission, then, at the time the new corporate employer registers with the
commissioner commission, the new corporate employer may request that the commissioner
commission assign to it the same rate of payment of premiums as that assigned to the preexisting
corporate employer. If the commissioner executive director decides that the granting of such a the
request is in keeping with his or her fiduciary obligations to the workers' compensation fund, then
the commissioner executive director may grant the request of the employer.
(b) If a new corporate employer which is not subject to the provisions of section fifteen of
this article is created by the officers or shareholders of a preexisting corporate employer and if the new corporate employer and the preexisting corporate employer are: (1) Managed Are managed by
the same, or substantially the same, management personnel; and (2) have a common ownership by
at least forty percent of each corporation's shareholders; and (3) is are in the same class or group
as determined by the commissioner executive director under the provisions of section four of this
article, then, at any time within one year of the new corporate employer's registration with the
commissioner commission, the commissioner executive director may decide that, in keeping with
his or her fiduciary obligations to the workers' compensation fund, the new corporate employer shall
be assigned the same rate of payment of premiums as that assigned to the preexisting corporate
employer at any time within the aforesaid one-year period: Provided, That if the new corporate
employer fails to reveal to the commissioner commission on the forms provided by the
commissioner commission that its situation meets the factual requirements of this section, then the
commissioner commission may demand payment from the new corporate employer in an amount
sufficient to eliminate the deficiency in payments by the new corporate employer from the date of
registration to the date of discovery plus interest thereon as provided for by section thirteen of this
article. The commissioner commission may utilize the use its powers given to the commissioner
in pursuant to section five-a of this article to collect the amount due.
§23-2-17. Employer right to hearing; content of petition; appeal.
Notwithstanding any provision in this chapter to the contrary and notwithstanding any
provision in section five, article five, chapter twenty-nine-a of this code to the contrary, in any
situation where an employer objects to a decision or action of the commissioner executive director
made under the provisions of this article, then such the employer shall be is entitled to file a petition
demanding a hearing upon such the decision or action which. The petition must be filed within
thirty days of the employer's receipt of notice of the disputed commissioner's executive director's decision or action or, in the absence of such receipt, within sixty days of the date of the
commissioner's executive director's making such the disputed decision or taking such the disputed
action, such the time limitations being hereby declared to be a condition of the right to litigate such
the decision or action and hence therefore jurisdictional.
The employer's petition shall clearly identify the decision or action disputed and the bases
upon which the employer disputes the decision or action. Upon receipt of such a petition, the
commissioner executive director shall schedule a hearing which shall be conducted in accordance
with the provisions of article five, chapter twenty-nine-a of this code. An appeal from a final
decision of the commissioner executive director shall be taken in accord with the provisions of
articles five and six of said chapter: Provided, That all such appeals shall be taken to the circuit
court of Kanawha County.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations; effective date.
(a) Where a compensable injury or death is caused, in whole or in part, by the act or omission
of a third party, the injured worker or, if he or she is deceased or physically or mentally incompetent,
his or her dependents or personal representative shall be are entitled to compensation under the
provisions of this chapter and shall not by having received same compensation be precluded from
making claim against said the third party.
(b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his
or her dependents or his or her personal representative makes a claim against said the third party and
recovers any sum thereby for the claim, the commissioner commission or a self-insured employer
shall be allowed statutory subrogation with regard to medical benefits paid as of the date of the
recovery.: Provided, That under no circumstances shall any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or
deceased worker exceed fifty percent of the amount received from the third party as a result of the
claim made by the injured worker, his or her dependents or personal representative, after payment
of attorney's fees and costs, if such exist. The commission or self-insured employer shall permit
the deduction from the amount received a reasonable attorney's fee and a reasonable portion of
costs. It is the duty of the injured worker, his or her dependents, his or her personal representative,
or his or her attorney to notify the commission and the employer when the claim is filed against the
third party.
(c) In the event that an injured worker, his or her dependents or personal representative
makes a claim against a third party, there shall be, and there is hereby created, a statutory
subrogation lien upon such the moneys received which shall exist in favor of the commissioner
commission or self-insured employer. Any injured worker, his or her dependents or personal
representative who receives moneys in settlement in any manner of a claim against a third party
shall remain remains subject to the subrogation lien until payment in full of the amount permitted
to be subrogated under subsection (b) of this section is paid.
(d) The right of subrogation granted by the provisions of this section shall not attach to any
claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective
date of this article the amendment and reenactment of this section during the year two thousand
three.
ARTICLE 2B. OCCUPATIONAL SAFETY AND HEALTH PROGRAMS.
§23-2B-1. Occupational safety and health activities; voluntary compliance; consultative
services.
In order to carry out the purposes of this chapter and to encourage voluntary compliance with occupational safety and health laws, regulations, rules and standards and to promote more effective
workplace health and safety programs, the commissioner executive director acting in conjunction
with the performance council created pursuant to section one, article three, chapter twenty-one-a of
this code, board of managers shall:
(a) Develop greater knowledge and interest in the causes and prevention of industrial
accidents, occupational diseases and related subjects through:
(1) Research, conferences, lectures and the use of public communications media;
(2) The collection and dissemination of accident and disease statistics; and
(3) The publication and distribution of training and accident prevention materials, including
audio and visual aids;
(b) Provide consultative services for employers on safety and health matters and prescribe
procedures which will permit any employer to request a special inspection or investigation, focused
on specific problems or hazards in the place of employment of the employer or to request assistance
in developing a plan to correct such problems or hazards, which will not directly result in a citation
and civil penalty; and
(c) Place emphasis, in the research, education and consultation program, on development of
a model for providing services to groups of small employers in particular industries and their
employees and for all employers whose experience modification factor for rate-setting purposes is
in excess of the criteria established by the compensation programs performance council board of
managers.
§23-2B-2. Mandatory programs; safety committees; requirements; rules; exceptions.
(a) Based upon and to the extent authorized by criteria established by the compensation
programs performance council executive director, the commissioner commission is authorized to conduct special inspections or investigations focused on specific problems or hazards in the
workplace with or without the agreement of the employer. The commissioner executive director
shall issue a report on his or her findings and shall furnish a copy of the report to the employer and
to any bargaining unit representing the employees of the employer. The commissioner executive
director may share information obtained or developed pursuant to this article with other
governmental agencies.
(b) For any employer whose experience modification factor exceeds the criteria established
by the compensation programs performance council board of managers, the commissioner executive
director may require the employer to establish a safety committee composed of representatives of
the employer and the employees of the employer.
(c) In carrying out the provisions of this article, the commissioner and the compensation
programs performance council executive director shall promulgate propose rules for promulgation
which shall include, but are not limited to, the following provisions:
(1) Prescribing the membership of the committees, training, frequency of meetings, record
keeping and compensation of employee representatives on safety committees; and
(2) Prescribing the duties and functions of safety committees which include, but are not
limited to:
(A) Establishing procedures for workplace safety inspections; and for investigating job-
related accidents, illnesses and deaths; and
(B) Evaluating accident and illness prevention programs.
(d) An employer that is a member of a multiemployer group operating under a collective
bargaining agreement that contains provisions regulating the formation and operation of a safety
committee that meets or exceeds the minimum requirements of this section shall be is considered to have met the requirements of this section.
(e) It is not the purpose of this article to either supercede the federal Occupational Health and
Safety Act program, federal Mine Safety and Health Act program or to create a state counterpart to
this program these programs.
§23-2B-3. Premium rate credits; qualified loss management program; loss management firms;
penalties; rules.
(a) The commissioner, in conjunction with the compensation programs performance council,
is authorized to executive director may establish by rule a premium credit program for certain
employers. The program shall be is applicable solely to regular subscribers to the workers'
compensation fund and not to self-insurers. Participation in any premium credit program shall be
is voluntary and no employer shall be is required to participate.
(b) The program shall apply applies a prospective credit to the premium rate of a subscribing
employer who participates in a qualified loss management program. The prospective credit shall
be is given for a period of up to three years: Provided, That the employer remains in the program
for a corresponding period of time.
(c) The rule shall specify the requirements of a qualified loss management program and shall
include a requirement that a recognized loss management firm participate in the program. A loss
management firm shall be recognized if it has demonstrated an ability to significantly reduce
workers' compensation losses for its client employers by implementing a loss control management
program. The amount of credit against premium rates that may be allowed by the commissioner
executive director shall vary from firm to firm and shall be primarily determined by the loss
reduction success experienced by all of the subscribing employers of the sponsoring loss
management firm over a period of time to be determined by the commissioner executive director.
(d) A credit shall be is applied to the employer's premium rate for up to three years. The
amount of the credit applied to the first year is based on the credit factor assigned to the loss
management firm on the date the employer subscribes to the program. The amount of the credit
applied to the second and third years shall be based on the credit factor assigned to the loss
management firm and in effect on each first day of July of the pertinent year: Provided, That the
applicable credit is halved in the third year.
(e) The employer may terminate participation in the program upon three years of continuous
participation in the program without penalty. Sooner termination may result in a penalty being
applied to the employer's premium rate.
(f) An employer who has subscribed to an existing program of a qualified loss management
firm prior to the effective date of this section shall be is subject to a reduction in credit as follows:
(1) Participation for one year or less shall result in credit for the full three years;
(2) Participation for more than one year but less than two years shall result in a credit for two
years;
(3) Participation for two years or more but less than three years shall result in a credit for one
year; and
(4) Participation for three years or more shall result in no credit.
(g) This section shall not become effective until the commissioner, in conjunction with the
compensation programs performance council, board of managers promulgates an appropriate rule
to implement the this section's provisions.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-1. Compensation fund; catastrophe and catastrophe payment defined; compensation
by employers.
(a) The commissioner commission shall establish a workers' compensation fund from the
premiums and other funds paid thereto by employers, as herein provided in this section, for the
benefit of employees of employers who have paid the premiums applicable to such the employers
and have otherwise complied fully with the provisions of section five, article two of this chapter,
and for the benefit, to the extent elsewhere in this chapter set out, of employees of employers who
have elected, under section nine, article two of this chapter, to make payments into the surplus
workers' compensation fund hereinafter as provided for in this section, and for the benefit of the
dependents of all such the employees, and for the payment of the administration expenses of this
chapter.
(b) A portion of all premiums that shall be are paid into the workers' compensation fund by
subscribers not electing to carry their own risk under section nine, article two of this chapter shall
be that is set aside to create and maintain a surplus reserve of the fund to cover the catastrophe
hazard the second injury hazard and all losses not otherwise specifically provided for in this chapter.
The percentage to be set aside shall be is determined pursuant to the rules adopted to implement
section four, article two of this chapter and shall be in an amount sufficient to maintain a solvent
surplus fund. All interest earned on investments by the workers' compensation fund, which is
attributable to the surplus fund reserve, shall be credited to the surplus fund.
(c) A catastrophe is hereby defined as an accident in which three or more employees are
killed or receive injuries, which, in the case of each individual, consist of: Loss of both eyes or the
sight thereof; or loss of both hands or the use thereof; or loss of both feet or the use thereof; or loss
of one hand and one foot or the use thereof. The aggregate of all medical and hospital bills and
other costs and all benefits payable on account of a catastrophe is hereby defined as "catastrophe
payment". In case of a catastrophe to the employees of an employer who is an ordinary premium-paying subscriber to the fund, or to the employees of an employer who, having elected to carry the
employer's own risk under section nine, article two of this chapter, has heretofore previously
elected, or may hereafter later elect, to pay into the catastrophe reserve of the surplus fund under the
provisions of that said section, then the catastrophe payment arising from such the catastrophe shall
not be charged against, or paid by, such the employer but shall be paid from the catastrophe reserve
of the surplus fund.
(d) (1) If For all awards made on or after the effective date of the amendments to this section
enacted during the year two thousand three, the following provisions relating to second injury are
not applicable. For awards made before the date specified in this subsection, if an employee who
has a definitely ascertainable physical impairment, caused by a previous occupational injury,
occupational pneumoconiosis or occupational disease, irrespective of its compensability, becomes
permanently and totally disabled through the combined effect of such the previous injury and a
second injury received in the course of and as a result of his or her employment, the employer shall
be chargeable only for the compensation payable for such the second injury: Provided, That in
addition to such the compensation, and after the completion of the payments therefor, the employee
shall be paid the remainder of the compensation that would be due for permanent total disability out
of a special reserve of the surplus workers' compensation fund known as the second injury reserve
created in the manner hereinbefore set forth. The procedure by which the claimant's request for a
permanent total disability award under this section is ruled upon shall require that the issue of the
claimant's degree of permanent disability first be determined. Thereafter, by means of a separate
order, a decision shall be made as to whether the award shall be is a second injury award under this
subsection or a permanent total disability award to be charged to the employer's account or to be
paid directly by the employer if the employer has elected to be self-insured under the provisions of section nine, article two of this chapter.
(2) If an employee of an employer, where the employer has elected to carry his or her own
risk under section nine, article two of this chapter, and is permitted not to make payments into the
second injury reserve of surplus fund under the provisions of said section, has a definitely
ascertainable physical impairment caused by a previous occupational injury, occupational
pneumoconiosis or occupational disease, irrespective of its compensability, and becomes
permanently and totally disabled from the combined effect of such previous injury and a second
injury received in the course of and as a result of his or her employment, the employee shall be
granted an award of total permanent disability and his or her employer shall, upon order of the
division, compensate the said employee in the same manner as if the total permanent disability of
the employee had resulted from a single injury while in the employ of such employer.
(e) Employers electing, as herein provided in this chapter, to compensate individually and
directly their injured employees and their fatally injured employees' dependents shall do so in the
manner prescribed by the division commission and shall make all reports and execute all blanks,
forms and papers as directed by the division commission, and as provided in this chapter.
§23-3-1a. Transfer of silicosis fund to workers' compensation fund; claims under former
article six.
Ten percent of the funds collected and held as the workers' compensation silicosis fund
under the provisions of former article six of this chapter, which article is by this act repealed, shall
be transferred to and made a part of the workers' compensation fund provided for in the preceding
section, and the balance thereof of the silicosis fund shall be refunded to the subscribers thereto to
the fund in proportion to their contributions to the same fund under the provisions of said former
article six; and all awards heretofore previously made under the provisions of article six shall be paid from the workers' compensation fund, or directly by the employer, under order of the
commissioner executive director, if the employer has elected to carry his or her own risk under the
provisions of section nine, article two of this chapter: Provided, That notwithstanding the repeal of
said article six, the provisions thereof shall be of the article are applicable in all cases of the disease
or death, because of silicosis, or an employee whose last exposure to silicon dioxide dust has
occurred prior to the effective date of this section, whose claim or application for compensation
benefits for silicosis, or that of his or her dependent, has not been filed prior to said that date, and
whose employer, at the time of such the exposure, was subject to the provisions of said article six
of this chapter.
§23-3-2. Custody, investment and disbursement of funds.
The state treasurer shall be is the custodian of the workers' compensation fund and all
premiums, deposits or other moneys paid thereto payable to each fund shall be deposited in the state
treasury to the credit of the workers' compensation fund for which it was assessed, transferred or
collected in the manner prescribed in section five, article two of this chapter. The workers'
compensation fund shall consist of the premiums and deposits provided by this chapter and all
interest accruing thereto upon investments and deposits in the state depositories, and any other
moneys or funds which may be given, appropriated or otherwise designated or accruing thereto to
it and all earnings. Said The fund shall be a separate and distinct fund and shall be so kept upon the
books and records of the auditor and treasurer and the state depositories in which any part is
deposited. Disbursements therefrom shall be made upon requisitions signed by the secretary and
approved by the commissioner of the bureau of employment programs executive director.
_____The board of investments shall have authority to invest the surplus, reserve or other moneys
belonging to the fund in the bonds of the United States, notes or bonds of this state, bridge revenue bonds of this state issued prior to the first day of January, one thousand nine hundred thirty-nine,
or any bonds issued to refund the same, bonds of any county, city, town, village or school district
of the state. No such investment shall be made, nor any investment sold or otherwise disposed of
without the concurrence of a majority of all members of the board of investments. It shall be the
duty of every county, school district or municipality issuing any bonds, to offer the same in writing
to the board of investments, prior to advertising the same for sale, and the board of investments
shall, within fifteen days after receipt of such offer, accept the same and purchase such bonds, or
any portion thereof at par and accrued interest, or reject such offer. All securities purchased by the
board of investments for investment for the workers' compensation fund shall be placed in the hands
of the state treasurer as the custodian thereof, and shall be his duty to keep and account for the same
as he keeps and accounts for other securities of the state, and to collect the interest thereon as the
same becomes due and payable and the principal when the same is due. No notes, bonds or other
securities shall be purchased by the board of investments until and unless the attorney general shall
investigate the issuance of such notes, bonds or securities and shall give a written opinion to the
board that the same have been regularly issued according to the constitution and the laws of this
state, which opinion, if such notes, bonds or securities be purchased, shall be filed with the treasurer
with such bonds or securities.
The workers' compensation fund is a participant plan as defined in section two, article six,
chapter twelve of this code and is subject to the provisions of section nine-a of said article. The fund
shall be invested by the investment management board in accordance with said article.
§23-3-3. Investment of surplus funds required.
Whenever there shall be is in the state treasury any funds belonging to the workers'
compensation fund not likely, in the opinion of the commissioner commission, to be required for immediate use, it shall be is the duty of the board of investments investment management board to
invest the same funds as prescribed in the preceding section two of this article. Whenever it may
become becomes necessary or expedient to use any of the invested funds so invested, the board of
investments investment management board, at the direction of the commissioner commission, shall
collect, sell or otherwise realize upon any investment to the amount considered necessary or
expedient to use.
§23-3-5. Authorization to require the electronic invoices and transfers.
(a) The workers' compensation division is authorized to commission shall on or before the
thirty-first day of December, two thousand five, establish a program to require the acceptance of
disbursements by electronic transfer from the workers' compensation fund to employers, vendors
and all others lawfully entitled to receive such disbursements: Provided, That until the thirty-first
day of December, two thousand five, claimants may not be required to accept such the transfers but
may elect to do so.
(b) The division is further authorized to commission may establish a program to require
payments of deposits, premiums and other funds into the workers' compensation fund by electronic
transfer of funds.
(c) The division is further authorized to commission may establish a program that invoices
and other charges against the workers' compensation fund may be submitted to the division
commission by electronic means.
(d) Any program authorized by this section must be implemented through the issuance of
a rule pursuant to subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this
code promulgated by the board of managers.
§23-3-6. Emergency fiscal measures.
(a) In addition to other measures intended by the Legislature to address the imminent threat
to the fiscal solvency of the workers' compensation fund, the Legislature finds that the prudent use
of available moneys may be necessary to supplement ongoing efforts to reduce and eliminate that
threat. The provisions of this section are enacted for those purposes.
(b) The following measures are authorized for the purposes described in subsection (a) of
this section:
(1) Upon meeting the conditions and requirements of subsection (a), section eight-b, article
four-b of this chapter, the commission may expend the assets described in said subsection (a) and
any income earned thereon to satisfy the obligations of the workers' compensation fund.
(2) Upon meeting the conditions and requirements of subsection (b), section eight-b, article
four-b of this chapter, the commission may expend the assets described in said subsection (b) and
any income earned thereon to satisfy the obligations of the workers' compensation fund.
(3) In each fiscal year beginning after the thirtieth day of June, two thousand three, it is the
intent of the Legislature that pursuant to appropriation in the budget bill for each respective fiscal
year, five million dollars of general revenue funds be transferred to the workers' compensation fund
and that the amounts transferred be expended to satisfy the obligations of the workers' compensation
fund.
(4)(A) If in any year expenditures from the workers' compensation fund are expected to
exceed assets in that fund, the executive director may under the following conditions request a
transfer of moneys from the principal of the West Virginia tobacco settlement medical trust fund
created in section two, article eleven-a, chapter four of this code. Prior to requesting the transfer the
executive director shall obtain an opinion from the commission's actuary as to the amount of the
deficit in the workers' compensation fund. Upon meeting the requirements of this subdivision, the executive director shall, upon approval of the board of managers, submit a written request to the
joint committee on government and finance that an amount determined by the Legislature be
transferred by appropriation from the principal of the West Virginia tobacco settlement medical trust
fund to the workers' compensation fund. Upon appropriation of the Legislature, the commission
may expend the assets transferred and any income earned thereon to satisfy the obligations of the
workers' compensation fund.
(B) Upon any exercise of the authority granted by this subdivision, the executive director
shall not increase benefit rates during the year as provided in section fourteen, article four of this
chapter and shall conduct an investigation into the causes of the deficit and determine the best course
of action to alleviate the shortfall.
(5) It is the intent of the Legislature that pursuant to legislative appropriation, fourteen
million dollars of funds made available to the state pursuant to the federal Jobs and Growth Tax
Relief Reconciliation Act of 2003, PL 108-27, be transferred to the workers' compensation fund and
that the amounts transferred be expended to satisfy the obligations of the workers' compensation
fund.
(6) It is the intent of the Legislature that pursuant to legislative appropriation, one million
dollars will be expired from the Alcohol Beverage Control Administration's General Administrative
Fund and transferred to the workers' compensation fund and that the amounts transferred be
expended to satisfy the obligations of the workers' compensation fund.
(7) It is the intent of the Legislature that pursuant to legislative appropriation, four million
dollars will be transferred from the unappropriated balance of the state excess lottery reserve fund
to the workers' compensation fund and that the amounts transferred be expended to satisfy the
obligations of the workers' compensation fund.
(8) Funds transferred to the workers' compensation fund pursuant to the provisions of this
subsection are anticipated to generate income of at least six million dollars over the course of the
three year period following the enactment of this section in the year two thousand three. The
commission may expend any income earned on these transferred funds to satisfy the obligations of
the workers' compensation fund.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1. To whom compensation fund disbursed; occupational pneumoconiosis and other
occupational diseases included in "injury" and "personal injury"; definition of
occupational pneumoconiosis and other occupational diseases.
(a) Subject to the provisions and limitations elsewhere in this chapter set forth, the
commissioner commission shall disburse the workers' compensation fund to the employees of
employers subject to this chapter which employees who have received personal injuries in the course
of and resulting from their covered employment or to the dependents, if any, of such the employees
in case death has ensued, according to the provisions hereinafter made; and also for the expenses
of the administration of this chapter, as provided in section two, article one of this chapter:
Provided, That in the case of any employees of the state and its political subdivisions, including:
Counties; municipalities; cities; towns; any separate corporation or instrumentality established by
one or more counties, cities or towns as permitted by law; any corporation or instrumentality
supported in most part by counties, cities or towns; any public corporation charged by law with the
performance of a governmental function and whose jurisdiction is coextensive with one or more
counties, cities or towns; any agency or organization established by the department of mental health
for the provision of community health or mental retardation services and which is supported, in
whole or in part, by state, county or municipal funds; board, agency, commission, department or spending unit, including any agency created by rule of the supreme court of appeals, who have
received personal injuries in the course of and resulting from their covered employment, such the
employees are ineligible to receive compensation while such the employees are at the same time and
for the same reason drawing sick leave benefits. Such The state employees may only use sick leave
for nonjob-related absences consistent with sick leave utilization use and may draw workers'
compensation benefits only where there is a job-related injury. This proviso shall not apply to
permanent benefits: Provided, however, That such the employees may collect sick leave benefits
until receiving temporary total disability benefits. The division of personnel shall promulgate rules
pursuant to article three, chapter twenty-nine-a of this code relating to use of sick leave benefits by
employees receiving personal injuries in the course of and resulting from covered employment:
Provided further, That in the event an employee is injured in the course of and resulting from
covered employment and such the injury results in lost time from work, and such the employee for
whatever reason uses or obtains sick leave benefits and subsequently receives temporary total
disability benefits for the same time period, such the employee may be restored sick leave time taken
by him or her as a result of the compensable injury by paying to his or her employer the temporary
total disability benefits received or an amount equal to the temporary total disability benefits
received. Such The employee shall be restored sick leave time on a day-for-day basis which
corresponds to temporary total disability benefits paid to the employer: And provided further, That
since the intent of this paragraph subsection is to prevent an employee of the state or any of its
political subdivisions from collecting both temporary total disability benefits and sick leave benefits
for the same time period, nothing herein may be construed to prevent in this subsection prevents an
employee of the state or any of its political subdivisions from electing to receive either sick leave
benefits or temporary total disability benefits but not both.
(b) For the purposes of this chapter, the terms "injury" and "personal injury" shall include
includes occupational pneumoconiosis and any other occupational disease, as hereinafter defined,
and the commissioner commission shall likewise also disburse the workers' compensation fund to
the employees of such the employers in whose employment such the employees have been exposed
to the hazards of occupational pneumoconiosis or other occupational disease and in this state have
contracted occupational pneumoconiosis or other occupational disease, or have suffered a
perceptible aggravation of an existing pneumoconiosis or other occupational disease, or to the
dependents, if any, of such the employees, in case death has ensued, according to the provisions
hereinafter made: Provided, That compensation shall not be payable for the disease of occupational
pneumoconiosis, or death resulting therefrom from the disease, unless the employee has been
exposed to the hazards of occupational pneumoconiosis in the state of West Virginia over a
continuous period of not less than two years during the ten years immediately preceding the date of
his or her last exposure to such hazards, or for any five of the fifteen years immediately preceding
the date of such his or her last exposure. An application for benefits on account of occupational
pneumoconiosis shall set forth the name of the employer or employers and the time worked for each,
and the commissioner. The commission may allocate to and divide any charges resulting from such
claim among the employers by whom the claimant was employed for as much as sixty days during
the period of three years immediately preceding the date of last exposure to the hazards of
occupational pneumoconiosis. The allocation shall be based upon the time and degree of exposure
with each employer.
(c) For the purposes of this chapter, disability or death resulting from occupational
pneumoconiosis, as defined in the immediately succeeding sentence, subsection (d) of this section
shall be treated and compensated as an injury by accident.
(d) Occupational pneumoconiosis is a disease of the lungs caused by the inhalation of minute
particles of dust over a period of time due to causes and conditions arising out of and in the course
of the employment. The term "occupational pneumoconiosis" shall include includes, but shall is
not be limited to, such diseases as silicosis, anthracosilicosis, coal worker's pneumoconiosis,
commonly known as black lung or miner's asthma, silico-tuberculosis (silicosis accompanied by
active tuberculosis of the lungs), coal worker's pneumoconiosis accompanied by active tuberculosis
of the lungs, asbestosis, siderosis, anthrax and any and all other dust diseases of the lungs and
conditions and diseases caused by occupational pneumoconiosis which are not specifically
designated herein in this section meeting the definition of occupational pneumoconiosis set forth in
the immediately preceding sentence this subsection.
(e) In determining the presence of occupational pneumoconiosis, X-ray evidence may be
considered but shall not be accorded greater weight than any other type of evidence demonstrating
occupational pneumoconiosis.
(f) For the purposes of this chapter, occupational disease means a disease incurred in the
course of and resulting from employment. No ordinary disease of life to which the general public
is exposed outside of the employment shall be is compensable except when it follows as an incident
of occupational disease as defined in this chapter. Except in the case of occupational
pneumoconiosis, a disease shall be deemed considered to have been incurred in the course of or to
have resulted from the employment only if it is apparent to the rational mind, upon consideration
of all the circumstances: (1) That there is a direct causal connection between the conditions under
which work is performed and the occupational disease; (2) that it can be seen to have followed as
a natural incident of the work as a result of the exposure occasioned by the nature of the
employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the
employment; (5) that it is incidental to the character of the business and not independent of the
relation of employer and employee; and (6) that it must appear appears to have had its origin in a
risk connected with the employment and to have flowed from that source as a natural consequence,
though it need not have been foreseen or expected before its contraction: Provided, That
compensation shall not be payable for an occupational disease or death resulting from the disease,
unless the employee has been exposed to the hazards of the disease in the state of West Virginia over
a continuous period that is determined to be sufficient, by rule of the board of managers, for the
disease to have occurred in the course of and resulting from the employee's employment. An
application for benefits on account of an occupational disease shall set forth the name of the
employer or employers and the time worked for each. The commission may allocate to and divide
any charges resulting from such claim among the employers by whom the claimant was employed.
The allocation shall be based upon the time and degree of exposure with each employer.
(g) No award shall be made under the provisions of this chapter for any occupational disease
contracted prior to the first day of July, one thousand nine hundred forty-nine. An employee shall
be deemed considered to have contracted an occupational disease within the meaning of this
paragraph subsection if the disease or condition has developed to such an extent that it can be
diagnosed as an occupational disease.
(h) Claims for occupational disease as hereinbefore defined in subsection (f) of this section,
except occupational pneumoconiosis, shall be processed in like manner as claims for all other
personal injuries
(i) On or before the first day of January, two thousand four, workers' compensation
commission shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment in claims of carpal tunnel syndrome.
§23-4-1a. Report of injuries by employee.
Every employee who sustains an injury subject to this chapter, or his or her representative,
shall immediately on the occurrence of such the injury or as soon thereafter as practicable give or
cause to be given to the employer or any of the employer's agents a written notice of the occurrence
of such the injury, with like notice or a copy thereof of the notice to the workers' compensation
division commission stating in ordinary language the name and address of the employer, the name
and address of the employee, the time, place, nature and cause of the injury, and whether temporary
total disability has resulted therefrom from the injury. Such The notice shall be given personally
to the employer or any of the employer's agents, or may be sent by certified mail addressed to the
employer at the employer's last known residence or place of business. Such The notice may be
given to the workers' compensation division commission by mail.
§23-4-1b. Report of injuries by employers.
It shall be is the duty of every employer to report to the commissioner commission every
injury sustained by any person in his or her employ. Such The report shall be on forms prescribed
by the commissioner commission and shall be made within five days of the employer's receipt of
the employee's notice of injury, required by section one-a of this article, or within five days after
the employer has been notified by the commissioner commission that a claim for benefits has been
filed on account of such injury, whichever is sooner, and, notwithstanding any other provision of
this chapter to the contrary, such the five-day period may not be extended by the commissioner
commission, but the employer shall have has the right to file a supplemental report at a later date.
The employer's report of injury shall include a statement as to whether or not, on the basis of the
information then available, the employer disputes the compensability of the injury or objects to the payment of temporary total disability benefits in connection therewith with the injury. Such The
statements by the employer shall not prejudice the employer's right thereafter to contest the
compensability of the injury, or to object to any subsequent finding or award, in accordance with
article five of this chapter; but an employer's failure to make timely report of an injury as required
herein in this section, or statements in such the report to the effect that the employer does not dispute
the compensability of the injury or object to the payment of temporary total disability benefits for
such the injury, shall be deemed considered to be a waiver of the employer's right to object to any
interim payment of temporary total disability benefits paid by the commissioner commission with
respect to any period from the date of injury to the date of the commissioner's commission's receipt
of any objection made thereto to the interim payments by the employer.
§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of
medical benefits; payments of benefits during protest; right of commission to collect
payments improperly made.
(a) In any claim for benefits under this chapter, the workers' compensation division
commission shall determine whether the claimant has sustained a compensable injury within the
meaning of section one of this article and the division shall enter an order giving all parties
immediate notice of such the decision.
(1) The division commission may enter an order conditionally approving the claimant's
application if the division commission finds that obtaining additional medical evidence or
evaluations or other evidence related to the issue of compensability would aid the division
commission in making a correct final decision. Benefits shall be paid during the period of
conditional approval; however, if the final decision is one that rejects the claim, then any such the
payments shall be considered an overpayment. The division commission or self-insured employer may only recover the amount of such an the overpayment as provided for in subsection (i)(h) of this
section.
(2) In making a determination regarding the compensability of a newly filed claim or upon
a filing for the reopening of a prior claim pursuant to the provisions of section sixteen of this article
based upon an allegation of recurrence, reinjury, aggravation or progression of the previous
compensable injury or in the case of a filing of a request for any other benefits under the provisions
of this chapter, the division commission shall consider the date of the filing of the claim for benefits
for a determination of the following:
(A) Whether the claimant had a scheduled shutdown beginning within one week of the date
of the filing; or
(B) Whether the claimant received notice within sixty days of the filing that his or her
employment position was to be eliminated, including, but not limited to, the claimant's worksite,
a layoff or the elimination of the claimant's employment position; or
(C) Whether the claimant is receiving unemployment compensation benefits at the time of
the filing; or
(D) Whether the claimant has received unemployment compensation benefits within sixty
days of the filing.
In the event of an affirmative finding upon any of these four factors, then such the finding
shall be given probative weight in the overall determination of the compensability of the claim or
of the merits of the reopening request.
(3) Any party shall have the right to may object to the order of the division commission and
obtain an evidentiary hearing as provided in section one, article five of this chapter: Provided, That
if the claimant files a timely protest to the ruling of a self-insured employer denying the compensability of the claim, the office of judges shall provide a hearing on the protest on an
expedited basis as determined by rule of the office of judges.
(b) Where it appears from the employer's report, or from proper medical evidence, that a
compensable injury will result in a disability which will last longer than three seven days as
provided in section five of this article, the division commission may immediately enter an order
commencing the payment of temporary total disability benefits to the claimant in the amounts
provided for in sections six and fourteen of this article, and the payment of the expenses provided
for in subsection (a), section three of this article, relating to said the injury, without waiting for the
expiration of the thirty-day period during which objections may be filed to such the findings as
provided in section one, article five of this chapter. The division commission shall enter an order
commencing the payment of temporary total disability or medical benefits within fifteen days of
receipt of either the employee's or employer's report of injury, whichever is received sooner, and
also upon receipt of either a proper physician's report or any other information necessary for a
determination. The division commission shall give to the parties immediate notice of any order
granting temporary total disability or medical benefits. When an order granting temporary total
disability benefits is made, the claimant's return to work potential shall be assessed. The
commission may schedule medical and vocational evaluation of the claimant and assign appropriate
personnel to expedite the claimant's return to work as soon as reasonably possible.
(c) The division commission may enter orders granting temporary total disability benefits
upon receipt of medical evidence justifying the payment of such the benefits. In no claim shall the
The division commission may not enter an order granting prospective temporary total disability
benefits for a period of more than ninety days: Provided, That when the division commission
determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total disability benefits, the division commission shall enter an order continuing the
payment of temporary total disability benefits for an additional period not to exceed ninety days and
shall give immediate notice to all parties of such the decision.
(d) Upon receipt of the first report of injury in claim, the division commission shall request
from the employer or employers any wage information necessary for determining the rate of benefits
to which the employee is entitled. If an employer does not furnish the division commission with this
information within fifteen days from the date the division commission received the first report of
injury in the case, the employee shall be paid temporary total disability benefits for lost time at the
rate the division commission obtains from reports made pursuant to section eleven, article ten,
chapter twenty-one-a of this code subsection (b), section two, article two of this chapter. If no such
wages have been reported, then the division commission shall make such the payments at the rate
the division commission finds would be justified by the usual rate of pay for the occupation of the
injured employee. The division commission shall adjust the rate of benefits both retroactively and
prospectively upon receipt of proper wage information. The division commission shall have access
to all wage information in the possession of any state agency.
(e) Subject to the limitations set forth in section sixteen of this article, upon a finding of the
division commission or a self-insured employer that a claimant who has sustained a previous
compensable injury which has been closed, by any order of the division, or by the claimant's return
to work, suffers further temporary total disability or requires further medical or hospital treatment
resulting from the compensable injury, the division commission or the self-insured employer shall
immediately enter an order commencing commence the payment of temporary total disability
benefits to the claimant in the amount provided for in sections six and fourteen of this article, and
the expenses provided for in subsection (a), section three of this article, relating to said the disability, without waiting for the expiration of the thirty-day period during which objections may be filed to
such findings as provided in section one, article five of this chapter. The division commission or
self-insured employer shall give immediate notice to the parties of its order decision.
(f) Where the employer is a subscriber to the workers' compensation fund under the
provisions of article three of this chapter, and upon the findings aforesaid, the division commission
shall mail all workers' compensation checks paying temporary total disability benefits directly to
the claimant and not to the employer for delivery to the claimant.
(g) Where the employer has elected to carry its own risk under section nine, article two of
this chapter, and upon the findings aforesaid, the division self-insured employer shall immediately
issue a pay order directing the employer to pay such the amounts as are due the claimant for
temporary total disability benefits. A copy of the order notice shall be sent to the claimant. The
self-insured employer shall commence such payments by mailing or delivering the payments
directly to the employee within ten days of the date of the receipt of the pay order by the employer.
If the self-insured employer believes that its employee is entitled to benefits, the employer may start
payments before receiving a pay order from the division.
(h) In the event that an employer files a timely objection to any order of the division with
respect to compensability, or any order denying an application for modification with respect to
temporary total disability benefits, or with respect to those expenses outlined in subsection (a),
section three of this article, the division shall continue to pay to the claimant such benefits and
expenses during the period of such disability. Where it is subsequently found by the division that
the claimant was not entitled to receive such temporary total disability benefits or expenses, or any
part thereof, so paid, the division shall, when the employer is a subscriber to the fund, credit said
employer's account with the amount of the overpayment; and, when the employer has elected to carry its own risk, the division shall refund to such employer the amount of the overpayment. The
amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the
surplus fund created in section one, article three of this chapter.
(i)(h) When the employer has protested the compensability or applied for modification of
a temporary total disability benefit award or expenses and the final decision in such that case
determines that the claimant was not entitled to such the benefits or expenses, the amount of such
benefits or expenses shall be is considered overpaid. The overpayment is a debt owed to the fund
or a self-insured employer, as the case may be. For all awards made or non-awarded partial benefits
paid on and after the effective date of the amendment and reenactment of the section during the year
two thousand three, a lien for all overpayments is hereby created: Provided, That no lien is created
where the aggregate of a claimant's overpayments is less than five hundred dollars: Provided,
however, That no lien is created until the commission or a self-insured employer, as the case may
be, has given the claimant written notice of the overpayment. In addition to means otherwise
provided by law for the collection of a debt or enforcement of a lien, the The division commission
or self-insured employer may only recover the amount of such overpaid benefits or expenses by
withholding, in whole or in part, as determined by the division future permanent partial disability
benefits payable to the individual in the same or other claims and credit such the amount against the
overpayment until it is repaid in full.
(j)(i) In the event that the division commission finds that, based upon the employer's report
of injury, the claim is not compensable, the division commission shall provide a copy of such the
employer's report to the claimant in addition to the order denying the claim.
(j) If a claimant is receiving benefits paid through a wage replacement plan, salary
continuation plan or other benefit plan provided by the employer to which the employee has not contributed, and that plan does not provide an offset for temporary total disability benefits to which
the claimant is also entitled under this chapter as a result of the same injury or disease, the employer
shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of
the notice, the commission shall reduce the temporary total disability benefits provided under this
chapter by an amount sufficient to ensure that the claimant does not receive monthly benefits in
excess of the amount provided by the employer's plan or the temporary total disability benefit,
whichever is greater: Provided, That this subsection does not apply to benefits being paid under the
terms and conditions of a collective bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the division commission makes an award for permanent partial or permanent total
disability, the division commission or self-insured employer shall start payment of benefits by
mailing or delivering the amount due directly to the employee within fifteen days from the date of
the award: Provided, That the division commission may withhold payment of the portion of the
award that is the subject of the following subsection (b) of this section until seventy-seven days have
expired without an objection being filed.
(b) On and after the first day of July, one thousand nine hundred ninety-five, whenever When
the division commission, self-insured employer, the office of judges or the workers' compensation
appeal board intermediate court of appeals enters an order or provides notice granting the claimant
a permanent total disability award and an objection or petition for appeal is then filed by the
employer or the division commission, the division commission or self-insured employer shall begin
the payment of monthly permanent total disability benefits. However, any payment for a back
period of benefits from the onset date of total permanent disability to the date of the award shall be
limited to a period of twelve months of benefits. If, after all litigation is completed and the time for the filing of any further objections or appeals to the award has expired, and the award of permanent
total disability benefits is upheld, then the claimant shall receive the remainder of benefits due to
him or her based upon the onset date of total permanent total disability that was finally determined.
(c) If the claimant is then owed any additional payment of back permanent total disability
benefits, then the division commission or self-insured employer shall not only pay the claimant the
sum owed but shall also add thereto interest at the simple rate of six percent per annum from the date
of the initial award granting the total permanent disability to the date of the final order upholding
the award. In the event that an intermediate order directed an earlier onset date of permanent total
disability than was found in the initial award, the interest-earning period for that additional period
shall begin upon the date of the intermediate award. Any interest payable shall be charged to the
account of the employer or shall be paid by the employer if it has elected to carry its own risk.
(d) If a timely protest to the award is filed, as provided in section one or nine, article five of
this chapter, the division commission or self-insured employer shall continue to pay to the claimant
such benefits during the period of such the disability unless it is subsequently found that the
claimant was not entitled to receive the benefits, or any part thereof, so paid, in which event the
division commission shall, where the employer is a subscriber to the fund, credit said the employer's
account with the amount of the overpayment; and, where the employer has elected to carry the
employer's own risk, the division shall refund to such employer the amount of the overpayment.
The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division
to the surplus fund created by section one, article three of this chapter. If the final decision in any
case determines that a claimant was not lawfully entitled to benefits paid to him or her pursuant to
a prior decision, such the amount of benefits so benefit paid shall be deemed considered overpaid.
The overpayment is a debt owed to the fund or a self-insured employer, as the case may be, and a lien therefor is hereby created: Provided, That no lien is created where the aggregate of a claimant's
overpayments is less than five hundred dollars: Provided, however, That no lien is created until the
commission or a self-insured employer, as the case may be, has given the claimant written notice
of the overpayment. In addition to means otherwise provided by law for the collection of a debt or
enforcement of a lien, the The division commission or self-insured employer may only recover such
that amount by withholding, in whole or in part, as determined by the division commission, future
permanent partial disability benefits payable to the individual in the same or other claims and credit
such the amount against the overpayment until it is repaid in full.
(e) An award for permanent partial disability shall be made as expeditiously as possible and
in accordance with the time frame requirements promulgated by the board of managers.
_____(f) If a claimant is receiving benefits paid through a retirement plan, wage replacement plan,
salary continuation plan or other benefit plan provided by the employer to which the employee has
not contributed, and that plan does not provide an offset for permanent total disability benefits to
which the claimant is also entitled under this chapter as a result of the same injury or disease, the
employer shall notify the commission of the duplication of the benefits paid to the claimant. Upon
receipt of the notice, the commission shall reduce the permanent total disability benefits provided
under this chapter by an amount sufficient to ensure that the claimant does not receive monthly
benefits in excess of the amount provided by the employer's plan or the permanent total disability
benefit, whichever is greater: Provided, That this subsection does not apply to benefits being paid
under the terms and conditions of a collective bargaining agreement.
§23-4-1e. Temporary total disability benefits not to be paid for periods of correctional center
or jail confinement; denial of workers' compensation benefits for injuries or disease
incurred while confined.
(a) Notwithstanding any provision of this code to the contrary, no person shall be
jurisdictionally entitled to temporary total disability benefits for that period of time in excess of three
days during which such that person is incarcerated confined in a penitentiary or state correctional
facility or a county or regional jail: Provided, That incarceration confinement shall not affect the
claimant's eligibility for payment of expenses: Provided, however, That this subsection is
applicable only to injuries and diseases incurred prior to any period of incarceration confinement.
Upon release from confinement, the payment of benefits for the remaining period of temporary total
disability shall be made if justified by the evidence and authorized by order of the commissioner
commission.
(b) Notwithstanding any provision of this code to the contrary, no person incarcerated
confined in a penitentiary or state correctional facility or a county or regional jail who suffers injury
or a disease in the course of and resulting from his or her work during such the period of
incarceration confinement which work is imposed by the administration of the penitentiary or state
correctional facility or the county or regional jail and is not suffered during such the person's usual
employment with his or her usual employer when not incarcerated confined shall receive benefits
under the provisions of this chapter for such the injury or disease.
§23-4-1f. Weighing of evidence.
(a) For all awards made on or after the effective date of the amendment and reenactment of
this section during the year two thousand three, resolution of any issue raised in administering this
chapter shall be based on a weighing of all evidence pertaining to the issue and a finding that a
preponderance of the evidence supports the chosen manner of resolution. The process of weighing
evidence shall include, but not be limited to, an assessment of the relevance, credibility, materiality
and reliability that the evidence possesses in the context of the issue presented. Under no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply
because it is reliable and is most favorable to a party's interests or position. If after weighing all of
the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal
amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that
is most consistent with the claimant's position will be adopted.
(b) Except as provided in subsection (a) of this section, a claim for compensation filed
pursuant to this chapter must be decided on its merit and not according to any principle that requires
statutes governing workers' compensation to be liberally construed because they are remedial in
nature. No such principle may be used in the application of law to the facts of a case arising out of
this chapter, or in determining the constitutionality of this chapter.
§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer;
legislative declarations and findings; "deliberate intention" defined.
(a) Notwithstanding anything hereinbefore or hereinafter contained in this chapter, no
employee or dependent of any employee is entitled to receive any sum from the workers'
compensation fund or to direct compensation from any employer making the election and receiving
the permission mentioned in section nine, article two of this chapter, from a self-insured employer,
or otherwise under the provisions of this chapter, on account of any personal injury to or death to
any employee caused by a self-inflicted injury or the intoxication of such the employee. Upon the
occurrence of an injury which the employee asserts, or which reasonably appears to have, occurred
in the course of and resulting from the employee's employment, the employer may require the
employee to undergo a blood test for the purpose of determining the existence or nonexistence of
evidence of intoxication pursuant to rules for the administration of the test promulgated by the board
of managers: Provided, That the employer must have a reasonable and good faith objective suspicion of the employee's intoxication and may only test for the purpose of determinating whether
the person is intoxicated.
_____(b) For the purpose of this chapter, the commissioner commission may cooperate with the
office of miners' health, safety and training and the state division of labor in promoting general
safety programs and in formulating rules to govern hazardous employments.
(b) (c) If injury or death result to any employee from the deliberate intention of his or her
employer to produce such the injury or death, the employee, the widow, widower, child or dependent
of the employee has the privilege to take under this chapter, and has a cause of action against the
employer, as if this chapter had not been enacted, for any excess of damages over the amount
received or receivable under this chapter.
(c) (d) (1) It is declared that enactment of this chapter and the establishment of the workers'
compensation system in this chapter was and is intended to remove from the common law tort
system all disputes between or among employers and employees regarding the compensation to be
received for injury or death to an employee except as herein expressly provided in this chapter, and
to establish a system which compensates even though the injury or death of an employee may be
caused by his or her own fault or the fault of a co-employee; that the immunity established in
sections six and six-a, article two of this chapter is an essential aspect of this workers' compensation
system; that the intent of the Legislature in providing immunity from common lawsuit was and is
to protect those so immunized from litigation outside the workers' compensation system except as
herein expressly provided in this chapter; that, in enacting the immunity provisions of this chapter,
the Legislature intended to create a legislative standard for loss of that immunity of more narrow
application and containing more specific mandatory elements than the common law tort system
concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted
under the asserted authority of this section is or is not prohibited by the immunity granted under this
chapter.
(2) The immunity from suit provided under this section and under section six-a, article two
of this chapter may be lost only if the employer or person against whom liability is asserted acted
with "deliberate intention". This requirement may be satisfied only if:
(i) It is proved that such the employer or person against whom liability is asserted acted with
a consciously, subjectively and deliberately formed intention to produce the specific result of injury
or death to an employee. This standard requires a showing of an actual, specific intent and may not
be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically
intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C)
willful, wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific findings of fact made by the court
in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the
following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a
high degree of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of
such the specific unsafe working condition and of the high degree of risk and the strong probability
of serious injury or death presented by such the specific unsafe working condition;
(C) That such the specific unsafe working condition was a violation of a state or federal
safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known
safety standard within the industry or business of such the employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as
contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment
or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through
(C), hereof inclusive, of this paragraph, such the employer nevertheless thereafter exposed an
employee to such the specific unsafe working condition intentionally; and
(E) That such employee so exposed the employee exposed suffered serious injury or death
as a direct and proximate result of such the specific unsafe working condition.
(iii) In cases alleging liability under the provisions of the preceding paragraph (ii) of this
subdivision:
(A) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule to the contrary, and consistent with
the legislative findings of intent to promote prompt judicial resolution of issues of immunity from
litigation under this chapter, the court shall dismiss the action upon motion for summary judgment
if it finds, pursuant to rule 56 of the rules of civil procedure that one or more of the facts required
to be proved by the provisions of subparagraphs (A) through (E), of the preceding paragraph (ii)
inclusive, paragraph (ii) of this subdivision do not exist, and the court shall dismiss the action upon
a timely motion for a directed verdict against the plaintiff if after considering all the evidence and
every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court
determines that there is not sufficient evidence to find each and every one of the facts required to
be proven by the provisions of subparagraphs (A) through (E), of the preceding paragraph (ii)
inclusive, paragraph (ii) of this subdivision; and
(C) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each other subparagraph, subsection, section, article or chapter of this code so that
if any provision of a subparagraph of this paragraph is held void, the remaining provisions of this
act and this code remain valid.
(d) (e) The reenactment of this section in the regular session of the Legislature during the
year one thousand nine hundred eighty-three does not in any way affect the right of any person to
bring an action with respect to or upon any cause of action which arose or accrued prior to the
effective date of such the reenactment.
§23-4-3. Schedule of maximum disbursements for medical, surgical, dental and hospital
treatment; legislative approval; guidelines; preferred provider agreements; charges in
excess of scheduled amounts not to be made; required disclosure of financial interest
in sale or rental of medically related mechanical appliances or devices; promulgation
of rules to enforce requirement; consequences of failure to disclose; contract by
employer with hospital, physician, etc., prohibited; criminal penalties for violation;
payments to certain providers prohibited; medical cost and care programs; payments;
interlocutory orders.
(a) The workers' compensation division commission shall establish and alter from time to
time, as the division may determine to be commission determines appropriate, a schedule of the
maximum reasonable amounts to be paid to health care providers, providers of rehabilitation
services, providers of durable medical and other goods and providers of other supplies and medically
related items or other persons, firms or corporations for the rendering of treatment or services to
injured employees under this chapter. The division commission also, on the first day of each regular
session and also from time to time, as the division commission may consider appropriate, shall
submit the schedule, with any changes thereto, to the Legislature. The promulgation of the schedule is not subject to the legislative rule-making review procedures established in sections nine through
sixteen, article three, chapter twenty-nine-a of this code.
The division commission shall disburse and pay from the fund for such personal injuries to
such the employees as may be who are entitled thereto hereunder to the benefits under this chapter
as follows:
(1) Such sums Sums for health care services, rehabilitation services, durable medical and
other goods and other supplies and medically related items as may be reasonably required. The
division commission shall determine that which is reasonably required within the meaning of this
section in accordance with the guidelines developed by the health care advisory panel pursuant to
section three-b of this article: Provided, That nothing herein in this section shall prevent the
implementation of guidelines applicable to a particular type of treatment or service or to a particular
type of injury before guidelines have been developed for other types of treatment or services or
injuries: Provided, however, That any guidelines for utilization review which are developed in
addition to the guidelines provided for in said section three-b of this article may be utilized used by
the division commission until superseded by guidelines developed by the health care advisory panel
pursuant to said section. Each health care provider who seeks to provide services or treatment which
are not within any such guideline shall submit to the division commission specific justification for
the need for such the additional services in the particular case and the division commission shall
have the justification reviewed by a health care professional before authorizing any such the
additional services. The division is authorized to commission may enter into preferred provider and
managed care agreements.
(2) Payment for health care services, rehabilitation services, durable medical and other goods
and other supplies and medically related items authorized under this subsection may be made to the injured employee or to the person, firm or corporation who or which has rendered such the treatment
or furnished health care services, rehabilitation services, durable medical or other goods or other
supplies and items, or who has advanced payment for same them, as the division may deem
commission considers proper, but no such payments or disbursements shall be made or awarded by
the division commission unless duly verified statements on forms prescribed by the division shall
be commission have been filed with the division commission within two years six months after the
rendering of such the treatment or the delivery of such goods, supplies or items or within ninety days
of a subsequent compensability ruling if a claim is initially rejected: Provided, That no payment
hereunder under this section shall be made unless such a verified statement shows no charge for or
with respect to such the treatment or for or with respect to any of the items specified above in this
subdivision has been or will be made against the injured employee or any other person, firm or
corporation., and when When an employee covered under the provisions of this chapter is injured
in the course of and as a result of his or her employment and is accepted for health care services,
rehabilitation services, or the provision of durable medical or other goods or other supplies or
medically related items, the person, firm or corporation rendering such the treatment is hereby
prohibited from making may not make any charge or charges therefor for the treatment or with
respect thereto to the treatment against the injured employee or any other person, firm or corporation
which would result in a total charge for the treatment rendered in excess of the maximum amount
set forth therefor in the division's commission's schedule established as aforesaid.
(3) Any pharmacist filling a prescription for medication for a workers' compensation
claimant shall dispense a generic brand of the prescribed medication if a generic brand exits. If a
generic brand does not exist, then the pharmacist may dispense the name brand. In the event that
a physician wishes to prescribe the use of the name brand of a given prescription medication, then he or she must indicate in his or her own handwriting on the prescription order form that the brand
name medication is to be issued. In the event that a claimant wishes to receive the name brand
medication in lieu of the generic brand and if the physician has not indicated that the brand name
is required, then the claimant may receive the name brand medication but, in that event, the claimant
will be is personally liable for the difference in costs between the generic brand medication and the
brand name medication.
(4) In the event that a claimant elects to receive health care services from a health care
provider from outside of the state of West Virginia and if that health care provider refuses to abide
by and accept as full payment the reimbursement made by the workers' compensation division
commission pursuant to the schedule of maximum reasonable amounts of fees authorized by
subsection (a) of this section, then, with the exceptions noted below, the claimant will be is
personably liable for the difference between the scheduled fee and the amount demanded by the out-
of-state health care provider.
(A) In the event of an emergency where there is an urgent need for immediate medical
attention in order to prevent the death of a claimant or to prevent serious and permanent harm to the
claimant, if the claimant receives the emergency care from an out-of-state health care provider who
refuses to accept as full payment the scheduled amount, then that the claimant will is not be
personally liable for the difference between the amount scheduled and the amount demanded by the
health care provider. Upon the claimant's attaining a stable medical condition and being able to be
transferred to either a West Virginia health care provider or an out-of-state health care provider who
has agreed to accept the scheduled amount of fees as payment in full, if such the claimant refuses
to seek the specified alternative health care providers, then he or she will be is personally liable for
the difference in costs between the scheduled amount and the amount demanded by the health care provider for services provided after attaining stability and being able to be transferred.
(B) In the event that there is no health care provider reasonably near to the claimant's home
who is qualified to provide the claimant's needed medical services and who is either located in the
state of West Virginia or who has agreed to accept as payment in full the scheduled amounts of fees,
then the division commission, upon application by the claimant, may authorize the claimant to
receive medical services from another health care provider. and such The claimant shall is not be
personally liable for the difference in costs between the scheduled amount and the amount demanded
by the health care provider.
(b)(1) No employer shall enter into any contracts with any hospital, its physicians, officers,
agents or employees to render medical, dental or hospital service or to give medical or surgical
attention therein to any employee for injury compensable within the purview of this chapter, and no
employer shall permit or require any employee to contribute, directly or indirectly, to any fund for
the payment of such medical, surgical, dental or hospital service within such hospital for such the
compensable injury. Any employer violating this section subsection shall be is liable in damages
to the employer's employees as provided in section eight, article two of this chapter, and any
employer or hospital or agent or employee thereof violating the provisions of this section shall be
is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not less than
one hundred dollars nor more than one thousand dollars or by imprisonment not exceeding one year,
or both.: Provided, That the foregoing
(2) The provisions of this subsection shall not be deemed to prohibit an employer from
participating in a managed health care plan, including, but not limited to, a preferred provider
organization or program or a health maintenance organization or managed care organization or other
medical cost containment relationship with the providers of medical, hospital or other health care. An employer that provides a managed health care plan approved by the commission for its
employees may require an injured employee to use health care providers authorized by the managed
health care plan for care and treatment of his or her compensable injuries. : Provided, however,
That nothing in this section shall be deemed to restrict the right of a claimant to If the employer does
not provide a managed health care plan or program, the claimant may select his or her initial health
care provider for treatment of a compensable injury or disease, except as provided under subdivision
(3) of this subsection. Should such If a claimant thereafter wish wishes to change his or her health
care provider and if his or her employer has established and maintains a managed health care plan,
program consisting of a preferred provider organization or program, or a health maintenance
organization, then the claimant shall select a new health care provider through such the managed
health care program plan. A claimant who has used the providers under the employer's managed
health care plan may select a health care provider outside the employer's plan for treatment of the
compensable injury or disease if the employee receives written approval from the commission to
do so and the approval is given pursuant to criteria established by rule of the commission.
(3) Moreover, if If the division commission enters into an agreement which has been
approved by the compensation programs performance council board of managers with a managed
health care plan, including, but not limited to, a preferred provider organization or program, a health
maintenance organization or managed care organization or other health care delivery organization
or organizations or other medical cost containment relationship with the providers of medical,
hospital or other health care, then:
(A) If an injured employee's employer does not provide a managed health care plan
approved by the commission for its employees as described in subdivision (2) of this subsection, the
commission may require the employee to use health care providers authorized by the commission's managed health care plan for care and treatment of his or her compensable injuries; and
(B) If a claimant seeks to change his or her initial choice of health care provider where
neither the employer or the commission had an approved health care management plan at the time
the initial choice was made, and if the claimant's employer does not provide access to such an
organization a plan as part of the employer's general health insurance benefit, then the claimant shall
be provided with a new health care provider from the division's commission's preferred provider
organization or program, health maintenance organization or other health care delivery organization
or organizations managed health care plan available to him or her.
(c) When an injury has been reported to the division commission by the employer without
protest, the division may pay, or order an employer who or which made the election and who or
which received the permission mentioned in section nine, article two of this chapter to commission
or self-insured employer may pay, within the maximum amount provided by schedule established
by the division as aforesaid under this section, bills for health care services without requiring the
injured employee to file an application for benefits.
(d) The division commission or self-insured employer shall provide for the replacement of
artificial limbs, crutches, hearing aids, eyeglasses and all other mechanical appliances provided in
accordance with this section which later wear out, or which later need to be refitted because of the
progression of the injury which caused the same devices to be originally furnished, or which are
broken in the course of and as a result of the employee's employment. The fund commission or self-
insured employer shall pay for these devices, when needed, notwithstanding any time limits
provided by law.
(e) No payment shall be made to a health care provider who is suspended or terminated under
the terms of section three-c of this article except as provided in subsection (c) of said section.
(f) The division is authorized to commission may engage in and contract for medical cost
containment programs, pharmacy benefits management programs, medical case management
programs and utilization review programs. Payments for these programs shall be made from the
supersedeas reserve of the surplus workers' compensation fund. Any order issued pursuant to any
such the program shall be interlocutory in nature until an objecting party has exhausted all review
processes provided for by the division commission.
(g) Notwithstanding the foregoing provisions of this section, the division commission may
establish fee schedules, make payments and take other actions required or allowed pursuant to article
twenty-nine-d, chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
(a) The commissioner commission shall establish a health care advisory panel consisting of
representatives of the various branches and specialties among health care providers in this state.
There shall be a minimum of five members of the health care advisory panel who shall receive
reasonable compensation for their services and reimbursement for reasonable actual expenses. Each
member of this panel shall be provided appropriate professional or other liability insurance, without
additional premium, by the state board of risk and insurance management created pursuant to article
twelve, chapter twenty-nine of this code. The panel shall:
(a)(1) Establish guidelines for the health care which is reasonably required for the treatment
of the various types of injuries and occupational diseases within the meaning of section three of this
article;
(b)(2) Establish protocols and procedures for the performance of examinations or evaluations
performed by physicians or medical examiners pursuant to sections seven-a and eight of this article;
(c)(3) Assist the commissioner commission in establishing guidelines for the evaluation of the care provided by health care providers to injured employees for purposes of section three-c of
this article;
(d)(4) Assist the commissioner commission in establishing guidelines as to regarding the
anticipated period of disability for the various types of injuries pursuant to subsection (b), section
seven-a of this article; and
_____(e)(5) Assist the commissioner commission in establishing appropriate professional review
of requests by health care providers to exceed the guidelines for treatment of injuries and
occupational diseases established pursuant to subdivision (a)(1) of this section.
(b) In addition to the requirements of 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.
§23-4-3c. Suspension or termination of providers of health care.
(a) The commissioner commission may suspend for up to one year three years or
permanently terminate the right of any health care provider, including a provider of rehabilitation
services within the meaning of section nine of this article, to obtain payment for services rendered
to injured employees:
(1) If the commissioner commission finds that the health care provider is regularly providing
to injured employees health care that is excessive, medically unreasonable or unethical, care to
injured employees which shall include abusing the workers' compensation system in the treatment
provided to injured employees or in its billing practices;
(2) If the commissioner commission finds that a health care provider is attempting to make
any charge or charges against the injured employee or any other person, firm or corporation which
would result in a total charge for any treatment rendered in excess of the maximum amount set by
the commissioner commission, in violation of section three of this article;
(3) If the commissioner commission determines that the health care provider has had his or
her license to practice suspended or terminated by the appropriate authority in this state or in another
state; or
(4) If the commissioner commission determines that the health care provider has been
convicted of any crime in relation to his or her practice, or any felony .; or
_____(5) If the commission determines that the health care provider has made medically
unsupported recommendations regarding a percentage of disability or has prescribed medically
unsupported treatment including medication. The rules promulgated under this section shall
establish criteria for determining whether recommendations or treatment are medically unsupported.
The commissioner executive director shall consult with medical experts, including the health
care advisory panel established pursuant to section three-b of this article, for purposes of
determining whether a health care provider should be suspended or terminated pursuant to this
section.
(b) Upon the commissioner determining determination by the executive director that there
is probable cause to believe that a health care provider should be suspended or terminated pursuant to this section, the commissioner executive director shall provide such the health care provider with
written notice which shall state stating the nature of the charges against the health care provider and
the time and place at which such of a hearing. Upon issuance of the notice and due consideration
of the executive director's fiduciary duties, the executive director may immediately suspend
payment to the health care provider pending the final order of suspension or termination. The health
care provider shall appear to show cause why the health care provider's right to receive payment
under this chapter should not be suspended or terminated. at which time and place such At the
hearing the health care provider shall be afforded an opportunity to review the commissioner's
evidence, and to cross-examine the commissioner's witnesses, and also afforded the opportunity to
present testimony and enter evidence in support of its position. The hearing shall be conducted in
accordance with the provisions of article five, chapter twenty-nine-a of this code. The hearing may
be conducted by the commissioner executive director or a hearing officer appointed by the
commissioner executive director. The commissioner executive director or hearing officer shall have
has the power to subpoena witnesses, papers, records, documents and other data and things in
connection with the proceeding hereunder under this subsection and to administer oaths or
affirmations in any such the hearing. If, after reviewing the record of such the hearing, the
commissioner executive director determines that the right of such the health care provider to obtain
payment under this article should be suspended for a specified period of time or should be
permanently terminated, the commissioner executive director shall issue a final order suspending
or terminating the right of such the health care provider to obtain payment for services under this
article. Any health care provider so suspended or terminated shall be notified in writing and the
notice shall specify the reasons for the action so taken. The order shall set forth findings of fact and
conclusions of law in support of the decision. The order shall be mailed to the health care provider by certified mail, return receipt requested. Any appeal by the health care provider shall be brought
in the circuit court of Kanawha County or in the county in which the provider's principal place of
business is located. The scope of the court's review of such an appeal the final order shall be as
provided in section four, of said article five, chapter twenty-nine-a of this code. The provider may
be suspended or terminated, based upon the final order of the commissioner executive director or
hearing officer, pending final disposition of any appeal. Such The final order may be stayed by the
circuit court after hearing, but shall not be stayed in or as a result of any ex parte proceeding. If the
health care provider does not appeal the final order of the commissioner within thirty days, it shall
be is final.
(c) No payment shall be made to a health care provider or to an injured employee for services
provided by a health care provider after the effective date of a commissioner's final order
terminating or suspending the health care provider: Provided, That nothing herein in this subsection
shall prohibit payment by the commissioner executive director or self-insured employer to a
suspended or terminated health care provider for medical services rendered where the medical
services were rendered to an injured employee in an emergency situation. The suspended or
terminated provider is prohibited from making may not make any charge or charges for any services
so provided against the injured employee unless the injured employee, before any services are
rendered, is given notice by the provider in writing that the provider does not participate in the
workers' compensation program and that the injured employee will be solely responsible for all
payments to the provider and unless the injured employee also signs a written consent, before any
services are rendered, to make payment directly and to waive any right to reimbursement from the
commissioner executive director or the self-insured employer. The written consent and waiver
signed by the injured employee shall be filed by the provider with the commissioner executive director and shall be made a part of the claim file.
(d) The commissioner executive director shall notify each claimant, whose duly authorized
treating physician or other health care provider has been suspended or terminated pursuant to this
section, of the suspension or termination of the provider's rights to obtain payment under this
chapter and shall assist the claimant in arranging for transfer of his or her care to another physician
or provider.
(e) Each suspended or terminated provider shall post in the provider's public waiting area
or areas a written notice, in the form required by the commissioner executive director, of the
suspension or termination of the provider's rights to obtain payment under this chapter.
(f) A suspended or terminated provider may apply for reinstatement at the end of the term
of suspension or, if terminated, after one year from the effective date of termination.
(g) The commissioner board of managers shall promulgate rules for the purpose of
implementing this section.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties.
(a) In case the personal injury causes death, reasonable funeral or cemetery expense, in an
amount to be fixed, from time to time, by the division commission shall be paid from the fund,
payment to be made to the persons who have furnished the services and supplies, or to the persons
who have advanced payment for same the services and supplies, as the division commission may
deem determine proper, in addition to such any award as may be made to the employee's
dependents.
(b) A funeral director or cemeterian, or any person who furnished the services and supplies
associated with the funeral or cemetery expenses, or a person who has advanced payment for same
the services and supplies, is prohibited from making any charge or charges against the employee's dependents for funeral expenses which would result in a total charge for funeral expenses in excess
of the amount fixed by the division commission unless:
(1) The person seeking funeral expenses notifies, in writing and prior to the rendering of any
service, the employee's dependent as to the exact cost of the service and the exact amount the
employee's dependent would be responsible for paying in excess of the amount fixed by the division
commission; and
(2) The person seeking funeral expenses secures, in writing and prior to the rendering of any
service, consent from the employee's dependent that he or she will be responsible to make payment
for the amount in excess of the amount fixed by the division commission.
(c) Any person who knowingly and willfully seeks or receives payment of funeral expenses
in excess of the amount fixed by the division commission without satisfying both of the
requirements of subsection (b) of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined three thousand dollars or confined in a county or regional jail for a definite
term of confinement of twelve months, or both.
§23-4-5. Benefits for first seven days after injury.
If the period of disability does not last longer than three seven days from the day the
employee leaves work as the result of the injury, no award shall be allowed, except the
disbursements provided for in the two next preceding sections, but if the period of disability lasts
longer than seven days from the day the employee leaves work as a result of the injury, an award
shall be allowed for the first three seven days of such disability.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of this chapter for personal
injury, the compensation shall be as provided in the following schedule:
(a) The expressions terms "average weekly wage earnings, wherever earned, of the injured
employee, at the date of injury" and "average weekly wage in West Virginia", as used in this
chapter, shall have the meaning and shall be computed as set forth in section fourteen of this article
except for the purpose of computing temporary total disability benefits for part-time employees
pursuant to the provisions of section six-d of this article.
(b) If For all awards made on and after the effective date of the amendment and reenactment
of this section during the year two thousand three, if the injury causes temporary total disability, the
employee shall receive during the continuance thereof of the disability a maximum weekly benefit
to be computed on the basis of seventy sixty-six and two-thirds percent of the average weekly wage
earnings, wherever earned, of the injured employee, at the date of injury, not to exceed one hundred
percent of the average weekly wage in West Virginia: Provided, That in no event shall an award
for temporary total disability be subject to annual adjustments resulting from changes in the average
weekly wage in West Virginia: Provided, however, in the case of a claimant whose injury occurred
prior to the second day of February, one thousand nine hundred ninety-five, award was granted prior
to the effective date of the amendment and reenactment of this section during the year two thousand
three, the maximum benefit rate shall be the rate applied under the prior enactment of this subsection
which was in effect at the time the injury occurred, and the rate shall not be affected by the
amendment and reenactment of this section during the regular session of the Legislature in the year
one thousand nine hundred ninety-five. The minimum weekly benefits paid hereunder under this
subdivision shall not be less than thirty-three and one-third percent of the average weekly wage in
West Virginia, except as provided in sections six-d and nine of this article. In no event, however,
shall such the minimum weekly benefits exceed the level of benefits determined by use of the then
applicable federal minimum hourly wage: Provided, however, That any claimant receiving permanent total disability benefits, permanent partial disability benefits or dependents' benefits prior
to the first day of July, one thousand nine hundred ninety-four, shall not have his or her benefits
reduced based upon the requirement herein in this subdivision that the minimum weekly benefit
shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section shall be is limited as follows: Aggregate award for a
single injury causing temporary disability shall be for a period not exceeding two hundred eight
weeks; aggregate award for a single injury for which an award of temporary total disability benefits
is made on or after the effective date of the amendment and reenactment of this section in the year
two thousand three shall be for a period not exceeding one hundred four weeks. Notwithstanding
any other provision of this subdivision to the contrary, no person may receive temporary total
disability benefits under an award for a single injury for a period exceeding one hundred four weeks
from the effective date of the amendment and reenactment of this section in the year two thousand
three.
(d) For all awards of permanent total disability benefits that are made on or after the second
day of February, one thousand nine hundred ninety-five, including those claims in which a request
for an award was pending before the division or which were in litigation but not yet submitted for
a decision, then benefits shall be payable until the claimant attains the age necessary to receive
federal old age retirement benefits under the provisions of the Social Security Act, 42 U. S. C. 401
and 402, in effect on the effective date of this section. Such a The claimant shall be paid benefits so
as not to exceed a maximum benefit of sixty-six and two-thirds percent of the claimant's average
weekly wage earnings, wherever earned, at the time of the date of injury not to exceed one hundred
percent of the average weekly wage in West Virginia. The minimum weekly benefits paid
hereunder under this section shall be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total disability benefits was made prior to the second day
of February, one thousand nine hundred ninety-five, such the awards shall continue to be paid at the
rate in effect prior to the said that date, subject to annual adjustments for changes in the average
weekly wage in West Virginia: Provided, That the provisions of sections one through eight,
inclusive, article four-a of this chapter shall be applied thereafter to all such prior awards that were
previously subject to its provisions. A single or aggregate permanent disability of eighty-five
percent or more shall entitle entitles the employee to a rebuttable presumption of a permanent total
disability for the purpose of paragraph (2), subdivision (n) of this section: Provided, however, That
the claimant must also be at least forty fifty percent medically impaired upon a whole body basis
or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision
(f) of this section. The presumption may be rebutted if the evidence establishes that the claimant
is not permanently and totally disabled pursuant to subdivision (n) of this section. Under no
circumstances shall may the division commission grant an additional permanent disability award
to a claimant receiving a permanent total disability award: Provided further, That if any claimant
thereafter sustains another compensable injury and has permanent partial disability resulting
therefrom from the injury, the total permanent disability award benefit rate shall be computed at the
highest benefit rate justified by any of the compensable injuries, and the cost of any increase in the
permanent total disability benefit rate shall be paid from the second injury reserve created by section
one, article three of this chapter.
(e)(1) For all awards made on or after the second day of February, one thousand nine
hundred ninety-five, effective date of the amendment and reenactment of this section during the year
two thousand three, if the injury causes permanent disability less than permanent total disability, the
percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability determined, at the maximum or minimum
benefit rates provided for in subdivision (d) of this section: as follows: Sixty-six and two-thirds
percent of the average weekly wage earnings, wherever earned, of the injured employee at the date
of injury, not to exceed seventy percent of the average weekly wage in West Virginia: Provided,
That in no event shall an award for permanent partial disability be subject to annual adjustments
resulting from changes in the average weekly wage in West Virginia: Provided, however, in the
case of a claimant whose injury occurred award was granted prior to the second day of February,
one thousand nine hundred ninety-five, effective date of the amendment and reenactment of this
section during the year two thousand three the maximum benefit rate shall be the rate applied under
the prior enactment of this section which was in effect at the time the injury occurred, and the rate
shall not be affected by the amendment and reenactment of this section during the regular session
of the Legislature in the year one thousand nine hundred ninety-five.
(2) If a claimant is released by his or her treating physician to return to work at the job he
or she held before the occupational injury occurred and if the claimant's preinjury employer does
not offer the preinjury job or a comparable job to the employee when such a position is available
to be offered, then the award for the percentage of partial disability shall be computed on the basis
of six weeks of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be as provided in subdivision
(b) of this section for temporary total disability.
(f) If the injury results in the total loss by severance of any of the members named in this
subdivision, the percentage of disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent disability.
The loss of a great toe (one phalanx) shall be considered a five percent disability.
The loss of other toes shall be considered a four percent disability.
The loss of other toes (one phalanx) shall be considered a two percent disability.
The loss of all toes shall be considered a twenty-five percent disability.
The loss of forepart of foot shall be considered a thirty percent disability.
The loss of a foot shall be considered a thirty-five percent disability.
The loss of a leg shall be considered a forty-five percent disability.
The loss of thigh shall be considered a fifty percent disability.
The loss of thigh at hip joint shall be considered a sixty percent disability.
The loss of a little or fourth finger (one phalanx) shall be considered a three percent
disability.
The loss of a little or fourth finger shall be considered a five percent disability.
The loss of ring or third finger (one phalanx) shall be considered a three percent disability.
The loss of ring or third finger shall be considered a five percent disability.
The loss of middle or second finger (one phalanx) shall be considered a three percent
disability.
The loss of middle or second finger shall be considered a seven percent disability.
The loss of index or first finger (one phalanx) shall be considered a six percent disability.
The loss of index or first finger shall be considered a ten percent disability.
The loss of thumb (one phalanx) shall be considered a twelve percent disability.
The loss of thumb shall be considered a twenty percent disability.
The loss of thumb and index fingers shall be considered a thirty-two percent disability.
The loss of index and middle fingers shall be considered a twenty percent disability.
The loss of middle and ring fingers shall be considered a fifteen percent disability.
The loss of ring and little fingers shall be considered a ten percent disability.
The loss of thumb, index and middle fingers shall be considered a forty percent disability.
The loss of index, middle and ring fingers shall be considered a thirty percent disability.
The loss of middle, ring and little fingers shall be considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two percent disability.
The loss of hand shall be considered a fifty percent disability.
The loss of forearm shall be considered a fifty-five percent disability.
The loss of arm shall be considered a sixty percent disability.
The total and irrecoverable loss of the sight of one eye shall be considered a thirty-three
percent disability. For the partial loss of vision in one or both eyes, the percentages of disability
shall be determined by the division commission, using as a basis the total loss of one eye.
The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two
and one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one or both ears, the percentage of disability shall be
determined by the division commission, using as a basis the total loss of hearing in both ears.
Should If a claimant sustain sustains a compensable injury which results in the total loss by
severance of any of the bodily members named in this subdivision, die or dies from sickness or
noncompensable injury before the division commission makes the proper award for such the injury,
the division commission shall make such the award to the claimant's dependents as defined in this
chapter, if any; such the payment to be made in the same installments that would have been paid to
claimant if living: Provided, That no payment shall be made to any surviving spouse of such the claimant after his or her remarriage and that this liability shall not accrue to the estate of such the
claimant and shall is not be subject to any debts of, or charges against, such the estate.
(g) Should If a claimant to whom has been made a permanent partial award die dies from
sickness or noncompensable injury, the unpaid balance of such the award shall be paid to claimant's
dependents as defined in this chapter, if any; such the payment to be made in the same installments
that would have been paid to claimant if living: Provided, That no payment shall be made to any
surviving spouse of such the claimant after his or her remarriage, and that this liability shall not
accrue to the estate of such the claimant and shall is not be subject to any debts of, or charges
against, such estate.
(h) For the purposes of this chapter, a finding of the occupational pneumoconiosis board
shall have has the force and effect of an award.
(i) For the purposes of this chapter, with the exception of those injuries provided for in
subdivision (f) of this section and in section six-b of this article, the degree of permanent disability
other than permanent total disability shall be determined exclusively by the degree of whole body
medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f)
of this section and section six-b of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said section. The occupational
pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions
on the degree of pulmonary function impairment that claimants suffer solely upon whole body
medical impairment. The workers' compensation division commission shall adopt standards for the
evaluation of claimants and the determination of a claimant's degree of whole body medical
impairment. Once the degree of medical impairment has been determined, that degree of
impairment shall be the degree of permanent partial disability that shall be awarded to the claimant. This subdivision shall be is applicable to all injuries incurred and diseases with a date of last
exposure on or after the second day of February, one thousand nine hundred ninety-five, to all
applications for an award of permanent partial disability made on and after such that date and to all
applications for an award of permanent partial disability that were pending before the division
commission or pending in litigation but not yet submitted for decision on and after such that date.
The prior provisions of this subdivision shall remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the commissioner executive director
by the health care advisory panel, the commissioner executive director shall appoint an
interdisciplinary examining board consisting of five members to evaluate claimants, including by
examination if the board so elects. The board shall be composed of three qualified physicians with
specialties and expertise qualifying them to evaluate medical impairment and two vocational
rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful
employment with or without retraining. One member of the board shall be designated annually as
chairperson by the commissioner executive director. The term of office of each member of the
board shall be six years and until his or her successor has been appointed and has qualified.
Provided, That two of the persons initially appointed shall serve a term of six years, two of the
remaining persons shall serve a term of four years and the remaining member shall serve a term of
two years. Any member of the board may be appointed to any number of terms. Any two physician
members and one vocational rehabilitation specialist member shall constitute a quorum for the
transaction of business. The commissioner executive director, from time to time, shall fix the
compensation to be paid to each member of the board, and the members shall are also be entitled
to reasonable and necessary traveling and other expenses incurred while actually engaged in the
performance of their duties. The board shall perform the duties and responsibilities as assigned by the provisions of this chapter, consistent with the administrative policies developed by the
commissioner executive director with the assistance approval of the compensation programs
performance council board of managers.
(1) The executive director shall establish requirements for the proper completion and support
for an application for permanent total disability benefits within an existing or a new rule no later
than the first day of January, two thousand four. Upon adoption of the rule by the board of
managers, no issue of permanent total disability may be referred to the interdisciplinary examining
board unless a properly completed and supported application for permanent total disability benefits
has been first filed with the commission. Prior to the referral of any issue to the interdisciplinary
examining board, the division commission shall conduct such examinations of the claimant as that
it finds necessary and obtain all pertinent records concerning the claimant's medical history and
reports of examinations and forward them to the board at the time of the referral. The division
commission shall provide adequate notice to the employer of the filing of the request for a
permanent total disability award and the employer shall be granted an appropriate period in which
to respond to the request. The claimant and the employer may furnish all pertinent information to
the board and shall furnish to the board any information requested by the board. The claimant and
the employer may each submit no more than one report and opinion regarding each issue present
in a given claim. The employer shall be entitled to may have the claimant examined by medical
specialists and vocational rehabilitation specialists: Provided, That the employer is entitled to only
one such examination on each issue present in a given claim. Any additional examinations must be
approved by the division commission and shall be granted only upon a showing of good cause. The
reports from all employer-conducted examinations must be filed with the board and served upon the
claimant. The board may request that those persons who have furnished reports and opinions regarding a claimant provide it with such additional information as considered necessary by the
board may deem necessary. Both the claimant and the employer, as well as the division
commission, may submit reports from experts challenging or supporting the other reports in the
record regardless of whether or not such an the expert examined the claimant or relied solely upon
the evidence of record.
(2) If the board or a quorum thereof of the board elects to examine a claimant, the individual
members shall conduct such any examinations as that are pertinent to each of their specialties. If
a claim presents an issue beyond the expertise of the board, the board may obtain advice or
evaluations by other specialists. In addition, if the compensation programs performance council
board of managers determines that the number of applications pending before the interdisciplinary
examining board has exceeded the level at which the board can review and make recommendations
within a reasonable time, then the council board of managers may authorize the commissioner
executive director to appoint such any additional members to the board as may be that are necessary
to reduce the backlog of applications. Such The additional members shall be recommended by the
health care advisory panel. and the commissioner The executive director may make such any
appointments as he or she chooses from the recommendations. The additional board members shall
not serve a set term but shall serve until the council board of managers determines that the number
of pending applications has been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters related to the determination of
permanent total disability under the provisions of subdivision (n) of this section and to questions
related to medical cost containment, utilization review decisions and managed care decisions arising
under section three of this article.
(4) In the event the board members elect to examine a claimant, the board shall prepare a report stating the tests, examinations, procedures and other observations that were made, the manner
in which each was conducted and the results of each. The report shall state the findings made by
the board and the reasons therefor for the findings. Copies of the reports of all such examinations
made by the board shall be served upon the parties and the division and each commission. Each
shall be given an opportunity to respond in writing to the findings and conclusions stated in the
reports.
(5) The board shall state its initial recommendations to the division commission in writing
with an explanation for each such recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the division commission and each shall be
afforded a thirty-day opportunity to respond in writing to the board regarding the board's
recommendations. The board shall then review any such responses and issue its final
recommendations. The final recommendations shall then be effectuated by the entry of an
appropriate order by the division commission. For all awards for permanent total disability where
the claim was filed on or after the effective date of the amendment and reenactment of this section
in the year two thousand three, the commission shall establish the date of onset of the claimant's
permanent total disability as the date when a properly completed and supported application for
permanent total disability benefits as prescribed in subdivision (1) of this subsection that results in
a finding of permanent total disability was filed with the commission: Provided, That upon
notification of the commission by a claimant or his or her representative that the claimant seeks to
be evaluated for permanent total disability, the commission shall send the claimant or his or her
representative the proper application form. The commission shall set time limits for the return of
the application. A properly completed and supported application returned within the time limits set
by the commission shall be treated as if received on the date the commission was notified the claimant was seeking evaluation for permanent total disability: Provided, however, That
notwithstanding any other provision of this section to the contrary, the onset date may not be sooner
than the date upon which the claimant meets the percentage thresholds of prior permanent partial
disability that are established by subsection (n) of this section as a prerequisite to the claimant's
qualification for consideration for a permanent total disability award.
(6) Except as noted below, objections pursuant to section one, article five of this chapter to
any such order shall be limited in scope to matters within the record developed before the workers'
compensation division commission and the board and shall further be limited to the issue of whether
the board properly applied the standards for determining medical impairment, if applicable, and the
issue of whether the board's findings are clearly wrong in view of the reliable, probative and
substantial evidence on the whole record. Should If either party contend contends that the
claimant's condition has changed significantly since the review conducted by the board, the party
may file a motion with the administrative law judge, together with a report supporting that assertion.
Upon the filing of such the motion, the administrative law judge shall cause a copy of the report to
be sent to the examining board asking the board to review the report and provide such comments
as if the board chooses within sixty days of the board's receipt of the report. The board may then
either supply such comments or, at the board's discretion, request that the claim be remanded to the
board for further review by the board. If remanded, the claimant is not required to submit to further
examination by the employer's medical specialists or vocational rehabilitation specialists.
Following any such the remand, the board shall file its recommendations with the administrative law
judge for his or her review. If the board elects to respond with comments, such the comments shall
be filed with the administrative law judge for his or her review. Following the receipt of either the
board's recommendations or comment comments, the administrative law judge shall then issue a written decision ruling upon the asserted change in the claimant's condition. No additional evidence
may be introduced during the review of the objection before the office of judges or elsewhere on
appeal: Provided, That each party and the division commission may submit one written opinion on
each issue pertinent to a given claim based upon a review of the evidence of record either
challenging or defending the board's findings and conclusions. Thereafter, based upon the evidence
then of record, the administrative law judge shall issue a written decision containing his or her
findings of fact and conclusions of law regarding each issue involved in the objection.
(k) Compensation payable under any subdivision of this section shall not exceed the
maximum nor be less than the weekly benefits specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this chapter, temporary total disability
benefits payable under subdivision (b) of this section shall not be deductible from permanent partial
disability awards payable under subdivision (e) or (f) of this section. Compensation, either
temporary total or permanent partial, under this section shall be payable only to the injured
employee and the right thereto to the compensation shall not vest in his or her estate, except that any
unpaid compensation which would have been paid or payable to the employee up to the time of his
or her death, if he or she had lived, shall be paid to the dependents of such the injured employee if
there be such are any dependents at the time of death.
(m) The following permanent disabilities shall be conclusively presumed to be total in
character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n)(1) Other than for those injuries specified in subdivision (m) of this section, in order to
be eligible to apply for an award of permanent total disability benefits for all injuries incurred and
all diseases, including occupational pneumoconiosis, with a regardless of the date of last exposure,
on and after the second day of February, one thousand nine hundred ninety-five, and for all requests
for such an award pending before the division on and after the second day of February, one thousand
nine hundred ninety-five, effective date of the amendment and reenactment of this section during
the year two thousand three a claimant (A) must have been awarded the sum of forty fifty percent
in prior permanent partial disability awards, (B) must have suffered an occupational a single injury
or disease which results in a finding by the commission that the claimant has suffered a medical
impairment of forty fifty percent or (C) has sustained a thirty-five percent statutory disability
pursuant to the provisions of subdivision (f) of this section. Upon filing such an application, the
claim will be reevaluated by the examining board pursuant to subdivision (i) of this section to
determine if he or she the claimant has suffered a whole body medical impairment of forty fifty
percent or more resulting from either a single occupational injury or occupational disease or a
combination of occupational injuries and occupational diseases or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f) of this section. A claimant whose
prior permanent partial disability awards total eighty-five percent or more shall also be examined
by the board and must be found to have suffered a whole body medical impairment of forty fifty
percent in order for his or her request to be eligible for further review. The examining board shall
review the claim as provided for in subdivision (j) of this section. If the claimant has not suffered
whole body medical impairment of at least forty fifty percent or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f) of this section, then the request shall
be denied. Upon a finding that the claimant does have a forty has a fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section, then the review of the application shall continue
continues as provided for in the following paragraph of this subdivision. Those claimants whose
prior permanent partial disability awards total eighty-five percent or more and who have been found
to have a whole body medical impairment of at least forty fifty percent or have sustained a thirty-
five percent statutory disability pursuant to the provisions of subdivision (f) of this section shall then
be are entitled to the rebuttable presumption created pursuant to subdivision (d) for the remaining
issues in the request. For the purposes of determining whether the claimant should be awarded
permanent total disability benefits under the second injury provisions of subsection (d), section one,
article three of this chapter, only a combination of occupational injuries and occupational diseases,
including occupational pneumoconiosis, shall be considered.
(2) A For all awards made on or after the effective date of the amendment and reenactment
of this section during the year two thousand three, disability which renders the injured employee
unable to engage in substantial gainful activity requiring skills or abilities which can be acquired or
which are comparable to those of any gainful activity in which he or she has previously engaged
with some regularity and over a substantial period of time shall be considered in determining the
issue of total disability. The comparability of preinjury income to post-disability income will not
be a factor in determining permanent total disability. Geographic availability of gainful employment
within a driving distance of seventy-five miles from the residence of the employee or within the
distance from the residence of the employee to his or her preinjury employment, whichever is
greater, will be a factor in determining permanent total disability. 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 twenty-
one-a of this code shall be considered once they are effective.
(3) In the event that a claimant, who has been found to have at least a forty fifty percent
whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant
to the provisions of subdivision (f) of this section, is denied an award of permanent total disability
benefits pursuant to this subdivision and then accepts and continues to work at a lesser paying job
than he or she previously held, then such a the claimant shall be is eligible, notwithstanding the
provisions of section nine of this article, to receive temporary partial rehabilitation benefits for a
period of four years. Such The benefits shall be paid at the level necessary to ensure the claimant's
receipt of the following percentages of the average weekly wage earnings of the claimant at the time
of injury calculated as provided in this section and sections six-d and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no event shall such the benefits
exceed one hundred percent of the average weekly wage in West Virginia. In no event shall such
the benefits be subject to the minimum benefit amounts required by the provisions of subdivision
(b) of this section.
(4) Notwithstanding any provision of this subsection, subsection (d) of this section, or any
other provision of this code to the contrary, on any claim filed on or after the effective date of the
amendment and reenactment of this section in the year two thousand three:
_____(A) No percent of whole body medical impairment existing as the result of carpal tunnel
syndrome for which a claim has been made under this chapter may be included in the aggregation of permanent disability under the provisions of subsection (d) or (n) of this section; and
_____(B) No percent of whole body medical impairment existing as the result of any occupational
disease, the diagnosis of which is based solely upon symptons rather than specific, objective and
measurable medical findings, and for which a claim has been made under this chapter may be
included in the aggregation of permanent disability under the provisions of subsection (d) or (n) of
this section. It is the intent of the Legislature that the amendments to this section enacted during the
regular session of the Legislature in the year one thousand nine hundred ninety-nine which change
criteria for an award of permanent total disability benefits be applied retroactively to all injuries
incurred and all occupational diseases, including occupational pneumoconiosis, with a date of last
exposure on and after the second day of February, one thousand nine hundred ninety-five, and for
all requests for such an award pending before the division on and after the second day of February,
one thousand nine hundred ninety-five: Provided, That any claimant whose application for
permanent total disability benefits was rejected on or after the second day of February, one thousand
nine hundred ninety-five, based on a finding that the claimant: (1) Was not awarded the sum of fifty
percent in prior permanent partial disability awards; or (2) did not suffer an occupational injury or
occupational disease which resulted in a finding that the claimant has suffered a medical impairment
of fifty percent; or (3) did not suffer whole body medical impairment of at least fifty percent, then
such claimant may, during the period beginning on the first day of July, one thousand nine hundred
ninety-nine, and ending on the thirtieth day of September, one thousand nine hundred ninety-nine,
file with the division a petition for reconsideration of the denial of permanent total disability
benefits. After review of the petition by the division and the examining board, the division shall
enter an appropriate order on the claimant's petition for reconsideration.
§23-4-6a. Benefits and mode of payment to employees and dependents for occupational pneumoconiosis; further adjustment of claim for occupational pneumoconiosis.
If an employee is found to be permanently disabled due to occupational pneumoconiosis, as
defined in section one of this article, the percentage of permanent disability shall be is determined
by the degree of medical impairment that is found by the occupational pneumoconiosis board. The
division commission shall enter an order setting forth the findings of the occupational
pneumoconiosis board with regard to whether the claimant has occupational pneumoconiosis and
the degree of medical impairment, if any, resulting therefrom. That order shall be is the final
decision of the division commission for purposes of section one, article five of this chapter. If such
a decision is objected to, the office of judges shall affirm the decision of the occupational
pneumoconiosis board made following hearing unless the decision is clearly wrong in view of the
reliable, probative and substantial evidence on the whole record. Compensation shall be is paid
therefor in the same manner and at the same rate as is provided for permanent disability under the
provisions of subdivisions (d), (e), (g), (h), (i), (j), (k), (m) and (n), section six of this article:
Provided, That if it shall be determined by the division in accordance with the facts in the case and
with the advice and recommendation of the occupational pneumoconiosis board that an employee
has occupational pneumoconiosis, but without measurable pulmonary impairment therefrom, such
employee shall be awarded and paid twenty weeks of benefits at the same benefit rate as
hereinabove provided. for any employee who applies for occupational pneumoconiosis benefits
whose award was granted on or after the effective date of the amendment and reenactment of this
section during the year two thousand three, there shall be no permanent partial disability awarded
based solely upon a diagnosis of occupational pneumoconiosis, it being the intent of the Legislature
to eliminate any permanent partial disability awards for occupational pneumoconiosis without a
specific finding of measurable impairment.
If the employee dies from occupational pneumoconiosis, the benefits shall be as provided
for in section ten of this article; as to such the benefits sections eleven to fourteen, inclusive, of this
article shall apply.
In cases of permanent disability or death due to occupational pneumoconiosis, as defined in
section one of this article, accompanied by active tuberculosis of the lungs, compensation shall be
payable as for disability or death due to occupational pneumoconiosis alone.
The provisions of section sixteen, article four and sections two, three, four and five, article
five of this chapter providing for the further adjustment of claims shall be are applicable to the claim
of any claimant who receives a permanent partial disability award for occupational pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by either a single incident of trauma
or by exposure to hazardous noise in the course of and resulting from employment, the degree of
permanent partial disability, if any, shall be determined in accordance with the provisions of this
section and awards made in accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural hearing loss shall be computed
in the following manner:
(1) The measured decibel loss of hearing due to injury at the sound frequencies of five
hundred, one thousand, two thousand and three thousand hertz shall be determined for the injured
ear and the total shall be divided by four to ascertain the average decibel loss;
(2) The percent of monaural hearing impairment for the injured ear shall be calculated by
multiplying by one and six-tenths percent the difference by which the aforementioned average
decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent
hearing impairment, which maximum is reached at ninety decibels; and
(3) The percent of monaural hearing impairment so obtained shall then be multiplied by
twenty-two and one-half to ascertain the degree of permanent partial disability.
(c) The percent of permanent partial disability for a binaural hearing loss shall be computed
in the following manner:
(1) The measured decibel loss of hearing due to injury at the sound frequencies of five
hundred, one thousand, two thousand and three thousand hertz shall be is determined for each ear
and the total for each ear shall be divided by four to ascertain the average decibel loss for each ear;
(2) The percent of hearing impairment for each ear shall be is calculated by multiplying by
one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds
twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment,
which maximum is reached at ninety decibels;
(3) The percent of binaural hearing impairment shall then be calculated by multiplying the
smaller percentage (better ear) by five, adding this figure to the larger percentage (poorer ear) and
dividing the sum by six; and
(4) The percent of binaural hearing impairment so obtained shall then be multiplied by fifty-
five to ascertain the degree of permanent partial disability.
(d) No permanent partial disability benefits shall be granted for tinnitus, psychogenic hearing
loss, recruitment or hearing loss above three thousand hertz.
(e) An additional amount of permanent partial disability shall be granted for impairment of
speech discrimination, if any, to determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added together and the result divided by two
to calculate the average percentage of speech discrimination, and the permanent partial disability
shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination so obtained. To determine the additional
amount for monaural impairment, the permanent partial disability shall be ascertained by reference
to the percentage of permanent partial disability in the table below on the line with the percentage
of speech discrimination in the injured ear.
TABLE
% of Permanent
% of Speech Discrimination 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. and the commissioner The commission
shall allocate to and divide any charges resulting from such the claim among such the employers
with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the
period of three years immediately preceding the date of last exposure. The allocation shall be is
based upon the time of exposure with each employer. In determining the allocation, the
commissioner commission shall consider all the time of employment by each employer during
which the claimant was so exposed and not just the time within such the three-year period, under
the same allocation as is applied in occupational pneumoconiosis cases.
(h) The commissioner commission shall provide, consistent with current practice, for prompt referral of such the claims for evaluation, for all medical reimbursement and for prompt
authorization of hearing enhancement devices.
(i) The provisions of this section and the amendments to section six of this article insofar as
applicable to permanent partial disabilities for hearing loss shall be are operative as to any claim
filed after thirty days from the effective date of this section.
§23-4-6d. Benefits payable to part-time employees.
(a) For purposes of this section, a part-time employee means an employee who, at the date
of injury, is customarily employed twenty-five hours per week or less on a regular basis and is
classified by the employer as a part-time employee: Provided, That the term "part-time employee"
shall not include an employee who regularly works more than twenty-five hours per week for the
employer, nor shall it include an employee who regularly works for more than one employer and
whose regular combined working hours total more than twenty-five hours per week when that
employee is rendered unable to perform the duties of all such his or her employment as a result of
the injury, nor shall it include any employee in the construction industry who works less than
twenty-five hours per week.
(b) For purposes of establishing temporary total disability weekly benefits pursuant to
subdivision (b), section six of this article for part-time employees, the "average weekly wage
earnings, wherever earned, of the injured person at the date of injury" shall be computed :
(1) Until the first day of July, one thousand nine hundred ninety-four, based upon the average
gross pay, wherever earned, which is received by the employee during the two months, six months
or twelve months immediately preceding the date of the injury, whichever is most favorable to the
injured employee; or
(2) On and after the first day of July, one thousand nine hundred ninety-four, based upon the best average weekly gross pay, wherever earned, which is received by the employee during the best
quarter of wages out of the preceding four quarters of wages as reported to the commissioner
commission pursuant to section eleven, article ten, chapter twenty-one-a of this code subsection (b),
section two, article two of this chapter: Provided, That for part-time employees who have been
employed less than two months but more than one week prior to the date of injury or any employee
whose wages have not yet been reported to the commissioner commission, the average weekly wage
earnings shall be calculated based upon the average gross earnings in the weeks actually worked:
Provided, however, That for part-time employees who have been employed one week or less, the
average weekly wage earnings shall be calculated based upon the average weekly wage prevailing
for the same or similar part-time employment at the time of injury except that when an employer has
agreed to pay a certain hourly wage to such a part-time employee, the average weekly wage shall
be computed by multiplying such the hourly wage by the regular numbers of hours contracted to be
worked each week: Provided further, That notwithstanding any provision of this article to the
contrary, no part-time employee shall receive temporary total disability benefits greater than his or
her average weekly wage earnings as so calculated.
(c) Notwithstanding any other provisions of this article to the contrary, benefits payable to
a part-time injured employee for any permanent disability shall be computed and paid on the same
basis as if the injured employee is not a part-time employee within the meaning of this section.
§23-4-7. Release of medical information to employer; legislative findings; effect of application
for benefits; duty of employer.
(a) The Legislature hereby finds and declares that two of the primary objectives of the
workers' compensation system established by this chapter are to provide benefits to an injured
claimant promptly and to effectuate his or her return to work at the earliest possible time; that the prompt dissemination of medical information to the division commission and employer as to
diagnosis, treatment and recovery is essential if these two objectives are to be achieved; that
claimants are increasingly burdened with the task of contacting their treating physicians to request
the furnishing of detailed medical information to the division commission and their employers; that
the division commission is increasingly burdened with the administrative responsibility of providing
copies of medical reports to the employer involved, whereas in other states the employer can obtain
the necessary medical information direct from the treating physician; that much litigation is
occasioned in this state because of a lack of medical information having been received by the
employer as to the continuing disability of a claimant; and that detailed narrative reports from the
treating physician are often necessary in order for the division commission, the claimant's
representatives and the employer to evaluate a claim and determine whether additional or different
treatment is indicated.
(b) In view of the foregoing findings, a claimant irrevocably agrees by the filing of his or her
application for benefits that any physician may release to and orally discuss with the claimant's
employer, or its representative, or with a representative of the division commission, from time to
time, the claimant's medical history and any medical reports pertaining to the occupational injury
or disease and to any prior injury or disease of the portion of the claimant's body to which a medical
impairment is alleged containing detailed information as to the claimant's condition, treatment,
prognosis and anticipated period of disability and dates as to when the claimant will reach or has
reached his or her maximum degree of improvement or will be or was released to return to work.
For the exclusive purposes of this chapter, the patient-physician privilege of confidentiality is
waived with regard to the physician's providing this medical information to the division
commission, the employer or to the employer's representative. Whenever a copy of any such medical report is obtained by the employer or its representative and the physician has not also
forwarded a copy of the same medical report to the division commission, the employer shall forward
a copy of such the medical report to the division commission within ten days from the date such the
employer received the same medical report from such the physician.
§23-4-7a. Monitoring of injury claims; legislative findings; review of medical evidence;
recommendation of authorized treating physician; independent medical evaluations;
temporary total disability benefits and the termination thereof; mandatory action;
additional authority; suspension of benefits.
(a) The Legislature hereby finds and declares that injured claimants should receive the type
of treatment needed as promptly as possible; that overpayments of temporary total disability benefits
with the resultant hardship created by the requirement of repayment should be minimized; and that
to achieve these two objectives it is essential that the division commission establish and operate a
systematic program for the monitoring of injury claims where the disability continues longer than
might ordinarily be expected.
(b) In view of the foregoing findings, the division commission, in consultation with the
health care advisory panel, shall establish guidelines as to the anticipated period of disability for the
various types of injuries. Each injury claim in which temporary total disability continues beyond
the anticipated period of disability so established for the injury involved shall be reviewed by the
division commission. If satisfied, after reviewing the medical evidence, that the claimant would not
benefit by an independent medical evaluation, the division commission shall mark the claim file
accordingly and shall diary such the claim file as to the next date for required review which shall
not exceed sixty days. If the division commission concludes that the claimant might benefit by an
independent medical evaluation, the division commission shall proceed as specified in subsections (d) and (e) of this section.
(c) When the authorized treating physician concludes that the claimant has either reached
his or her maximum degree of improvement or is ready for disability evaluation, or when the
claimant has returned to work, such the authorized treating physician may recommend a permanent
partial disability award for residual impairment relating to and resulting from the compensable
injury, and the following provisions shall govern and control:
(1) If the authorized treating physician recommends a permanent partial disability award of
fifteen percent or less, the division commission shall enter an award of permanent partial disability
benefits based upon such the recommendation and all other available information., and the The
claimant's entitlement to temporary total disability benefits shall cease ceases upon the entry of such
the award unless previously terminated under the provisions of subsection (e) of this section.
(2) If, however, the authorized treating physician recommends a permanent partial disability
award in excess of fifteen percent, or recommends a permanent total disability award, the claimant's
entitlement to temporary total disability benefits shall cease ceases upon the receipt by the division
commission of such the medical report. and the division The commission shall refer the claimant
to a physician or physicians of the division's commission's selection for independent evaluation
prior to the entry of a permanent disability award: Provided, That unless the claimant has returned
to work, the claimant shall thereupon receive benefits which shall then be at the permanent partial
disability rate as provided in subdivision (e), section six of this article until the entry of a permanent
disability award or until the claimant returns to work., and which The amount of such benefits paid
prior to the receipt of such the independent evaluation report shall be considered and deemed
determined to be payment of the permanent disability award then granted, if any. In the event that
benefits actually paid exceed the amount granted by the permanent partial disability award, the claimant shall be is entitled to no further benefits by such the award, but shall not be liable by offset
or otherwise for and the excess paid shall be an overpayment. The overpayment is a debt owed to
the fund or a self-insured employer, as the case may be. For all awards made or non-awarded partial
benefits paid on and after the effective date of the amendment and reenactment of the section during
the year two thousand three, a lien for all overpayments is hereby created: Provided, That no lien
is created where the aggregate of a claimant's overpayments is less than five hundred dollars:
Provided, however, That no lien is created until the commission or a self-insured employer, as the
case may be, has given the claimant written notice of the overpayment. In addition to means
otherwise provided by law for the collection of a debt or enforcement of a lien, the commission 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.
(d) When the division commission concludes that an independent medical evaluation is
indicated, or that a claimant may be ready for disability evaluation in accordance with other
provisions of this chapter, the division commission shall refer the claimant to a physician or
physicians of the division's commission's selection for examination and evaluation. If the physician
or physicians so selected recommend continued, additional or different treatment, the
recommendation shall be relayed to the claimant and the claimant's then treating physician and the
recommended treatment may be authorized by the division commission.
(e) Notwithstanding any provision in subsection (c) of this section, the division commission
shall enter a notice suspending the payment of temporary total disability benefits but providing a
reasonable period of time during which the claimant may submit evidence justifying the continued
payment of temporary total disability benefits when:
(1) The physician or physicians selected by the division commission conclude that the
claimant has reached his or her maximum degree of improvement; or
(2) When the authorized treating physician shall advise advises the division commission that
the claimant has reached his or her maximum degree of improvement or that he or she is ready for
disability evaluation and when the authorized treating physician has not made any recommendation
with respect to a permanent disability award as provided in subsection (c) of this section; or
(3) When other evidence submitted to the division commission justifies a finding that the
claimant has reached his or her maximum degree of improvement: Provided, That in all cases a
finding by the division that the claimant has reached his or her maximum degree of improvement
shall terminate the claimant's entitlement to temporary total disability benefits regardless of whether
the claimant has been released to return to work: Provided, however, That under no circumstances
shall a claimant be entitled to receive temporary total disability benefits either beyond the date the
claimant is released to return to work or beyond the date he or she actually returns to work; or
__________(4) When other evidence submitted or otherwise obtained justifies a finding that the claimant
has engaged or is engaging in abuse, including, but not limited to, physical activities inconsistent
with his or her compensable workers' compensation injury.
__________In all cases, a finding by the commission that the claimant has reached his or her maximum
degree of improvement terminates the claimant's entitlement to temporary total disability benefits
regardless of whether the claimant has been released to return to work. Under no circumstances
shall a claimant be entitled to receive temporary total disability benefits either beyond the date the
claimant is released to return to work or beyond the date he or she actually returns to work.
In the event that the medical or other evidence indicates that claimant has a permanent
disability, unless he or she has returned to work, the claimant shall thereupon receive benefits which shall then be at the permanent partial disability rate as provided in subdivision (e), section six of this
article until entry of a permanent disability award, pursuant to an evaluation by a physician or
physicians selected by the division commission, or until the claimant returns to work. and which The
amount of benefits shall be considered and deemed determined to be payment of the permanent
disability award then granted, if any. In the event that benefits actually paid exceed the amount
granted under the permanent disability award, the claimant shall be is entitled to no further benefits
by such the order but shall not be liable by offset or otherwise for the excess paid.
(f) Notwithstanding the anticipated period of disability established pursuant to the provisions
of subsection (b) of this section, whenever in any claim temporary total disability shall continue
continues longer than one hundred twenty days from the date of injury (or from the date of the last
preceding examination and evaluation pursuant to the provisions of this subsection or pursuant to
the directions of the division commission under other provisions of this chapter), the division
commission shall refer the claimant to a physician or physicians of the division's commission's
selection for examination and evaluation in accordance with the provisions of subsection (d) of this
section and the provisions of subsection (e) of this section shall be are fully applicable: Provided,
That the requirement of mandatory examinations and evaluations pursuant to the provisions of this
subsection shall not apply to any claimant who sustained a brain stem or spinal cord injury with
resultant paralysis or an injury which resulted in an amputation necessitating a prosthetic appliance.
(g) The provisions of this section are in addition to and in no way in derogation of the power
and authority vested in the division commission by other provisions of this chapter or vested in the
employer to have a claimant examined by a physician or physicians of the employer's selection and
at the employer's expense, or vested in the claimant or employer to file a protest, under other
provisions of this chapter.
(h) All evaluations and examinations performed by physicians shall be performed in
accordance with the protocols and procedures established by the health care advisory panel pursuant
to section three-b of this article: Provided, That the physician may exceed these protocols when
additional evaluation is medically necessary.
(i) The commission may suspend benefits being paid to a claimant if the claimant refuses,
without good cause, to undergo the examinations or needed treatments provided for in this section
until the claimant submits to the examination or needed treatments. The executive director shall
propose rules for approval by the commission to implement the provisions of this subsection.
§23-4-7b. Trial return to work.
(a) The Legislature hereby finds and declares that it is in the interest of employees,
employers and the commissioner commission that injured employees be encouraged to return to
work as quickly as possible after an injury and that appropriate protections be afforded to injured
employees who return to work on a trial basis.
(b) Notwithstanding any other provisions of this chapter to the contrary, the injured
employee shall not have his or her eligibility to receive temporary total disability benefits terminated
when he or she returns to work on a trial basis as set forth herein in this section. An employee shall
be is eligible to return to work on a trial basis when he or she is released to work on a trial basis by
the treating physician.
(c) When an injured employee returns to work on a trial basis, the employer shall provide
a trial return to work notification to the commissioner commission. Upon receipt thereof of the
notification, the commissioner commission shall note the date of the first day of work pursuant to
the trial return and shall continue the claimant's eligibility for temporary total disability benefits,
but shall temporarily suspend the payment of temporary total disability benefits during the period actually worked by the injured employee. The claim shall be closed on a temporary total disability
basis either when the injured employee or the authorized treating physician notifies the
commissioner commission that the injured employee is able to perform his or her job or
automatically at the end of a period of three months from the date of the first day of work unless the
employee notifies the commissioner commission that he or she is unable to perform the duties of
the job, whichever occurs first. If the injured employee is unable to continue working due to the
compensable injury for a three-month period, the injured employee shall notify the commissioner
commission and temporary total disability benefits shall be reinstated immediately and he or she
shall be referred for a rehabilitation evaluation as provided in section nine of this article. No
provision of this section shall be construed to prohibit the commissioner commission from referring
the injured employee for any permanent disability evaluation required or permitted by any other
provision of this article.
(d) Nothing in this section shall prevent the employee from returning to work without a trial
return-to-work period.
(e) Nothing in this section shall be construed to require an injured employee to return to work
on a trial basis.
(f) The provisions of this section shall be terminated and be of no further force and effect on
the first day of July, one thousand nine hundred ninety-eight two thousand seven.
§23-4-8. Physical examination of claimant.
The commissioner shall have authority commission may, after due notice to the employer
and claimant, whenever in the commissioner's commission's opinion it shall be is necessary, to
order a claimant of compensation for a personal injury other than occupational pneumoconiosis to
appear for examination before a medical examiner or examiners selected by the commissioner commission; and the claimant and employer, respectively, shall each have the right to select a
physician of the claimant's or the employer's own choosing and at the claimant's or the employer's
own expense to participate in such the examination. All such examinations shall be performed in
accordance with the protocols and procedures established by the health care advisory panel pursuant
to section three-b of this article: Provided, That the physician may exceed these protocols when
additional evaluation is medically necessary. The claimant and employer shall, respectively, be
furnished with a copy of the report of examination made by the medical examiner or examiners
selected by the commissioner commission. The respective physicians selected by the claimant and
employer shall have the right to concur in any report made by the medical examiner or examiners
selected by the commissioner commission, or each may file with the commissioner commission a
separate report, which separate report shall be considered by the commissioner commission in
passing upon the claim. If the compensation claimed is for occupational pneumoconiosis, the
commissioner shall have the power commission may, after due notice to the employer, and
whenever in the commissioner's commission's opinion it shall be is necessary, to order a claimant
to appear for examination before the occupational pneumoconiosis board hereinafter provided for
in section eight-a of this article. In any case the claimant shall be is entitled to reimbursement for
loss of wages, and to reasonable traveling and other expenses necessarily incurred by him or her in
obeying such the order.
Where the claimant is required to undergo a medical examination or examinations by a
physician or physicians selected by the employer, as aforesaid or in connection with any claim
which is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable
traveling and other expenses in connection with such the examination or examinations, not to exceed
the expenses paid when a claimant is examined by a physician or physicians selected by the commissioner commission.
§23-4-8a. Occupational pneumoconiosis board; composition; term of office; duties; quorum;
remuneration.
The occupational pneumoconiosis board shall consist of five licensed physicians who shall
be appointed by the commissioner executive director. No person shall be appointed as a member
of the board, or as a consultant thereto, who has not by special study or experience, or both, acquired
special knowledge of pulmonary diseases. All members of the occupational pneumoconiosis board
shall be physicians of good professional standing admitted to practice medicine and surgery in this
state. , and two of them Two members shall be roentgenologists. One member of the board shall
be designated annually as chairman by the commissioner executive director. The term of office of
each member of the board shall be six years. The five members of the existing board in office on
the effective date of this section shall continue to serve until their terms expire and until their
successors have been appointed and have qualified. Any member of the board may be appointed
to any number of terms. The function of the board is to determine all medical questions relating to
cases of compensation for occupational pneumoconiosis under the direction and supervision of the
commissioner executive director. Any three members of the board constitute a quorum for the
transaction of its business if at least one of the members present is a roentgenologist. The
commissioner executive director shall, from time to time, fix the compensation to be paid each
member of the board., and members Members are also entitled to reasonable and necessary traveling
and other expenses incurred while actually engaged in the performance of their duties. In fixing the
compensation of board members, the commissioner executive director shall take into consideration
the number of claimants a member of the board actually examines, the actual time spent by members
in discharging their duties and the recommendation of the compensation programs performance council board of managers as to reasonable reimbursement per unit of time expended based on
comparative data for physicians within the state in the same medical specialties.
§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.
The occupational pneumoconiosis board, upon reference to it by the commissioner
commission of a case of occupational pneumoconiosis, shall notify the employee, or in case he or
she is dead, the claimant, and the employer to appear before such the board at a time and place stated
in the notice. If the employee be is living, he or she shall appear before the board at the time and
place specified and submit to such the examination, including clinical and X-ray examinations, as
required by the board may require. If a physician licensed to practice medicine in the state shall
make makes an affidavit that the employee is physically unable to appear at the time and place
designated by the board, such the board shall, on notice to the proper parties, change the place and
time as may reasonably facilitate the hearing or examination of the employee or may appoint a
qualified specialist in the field of respiratory disease to examine the claimant on behalf of the board.
The employee, or in case he or she is dead, the claimant, and employer shall also produce as
evidence to the board all reports of medical and X-ray examinations which may be in their
respective possession or control, showing the past or present condition of the employee. If the
employee be is dead, the notice of the board shall further require that the claimant produce necessary
consents and permits so that an autopsy may be performed, if the board shall so direct directs. When
in the opinion of the board an autopsy is deemed considered necessary accurately and scientifically
to ascertain and determine the cause of death, such the autopsy examination shall be ordered by the
board, which shall designate a duly licensed physician, a pathologist or such any other specialists
as may be deemed determined necessary by the board, to make such the examination and tests to
determine the cause of death and certify his or her or their written findings, in triplicate, to the board, which. The findings shall be public records. In the event that a claimant for compensation for such
the death refuses to consent and permit such the autopsy to be made, all rights for compensation
shall thereupon be are forfeited.
The employee, or if he or she be dead, the claimant, and the employer, shall be entitled to
be present at all examinations conducted by the board and to be represented by attorneys and
physicians.
§23-4-8c. Occupational pneumoconiosis board; reports and distribution thereof; presumption;
findings required of board; objection to findings; procedure thereon; limitations on
refilings; consolidation of claims.
(a) The occupational pneumoconiosis board, as soon as practicable, after it has completed
its investigation, shall make its written report, to the commissioner commission of its findings and
conclusions on every medical question in controversy and the commissioner commission shall send
one copy thereof of the report to the employee or claimant and one copy to the employer., and the
The board shall also return to and file with the commissioner commission all the evidence as well
as all statements under oath, if any, of the persons who appear appeared before it on behalf of the
employee or claimant, or employer, and also all medical reports and X-ray examinations produced
by or on behalf of the employee or claimant, or employer.
(b) If it can be shown that the claimant or deceased employee has been exposed to the hazard
of inhaling minute particles of dust in the course of and resulting from his or her employment for
a period of ten years during the fifteen years immediately preceding the date of his or her last
exposure to such hazard and that such the claimant or deceased employee has sustained a chronic
respiratory disability, then it shall be presumed that such the claimant is suffering or such the
deceased employee was suffering at the time of his or her death from occupational pneumoconiosis which arose out of and in the course of his or her employment. This presumption shall is not be
conclusive.
(c) The findings and conclusions of the board shall set forth, among other things, the
following:
(1) Whether or not the claimant or the deceased employee has contracted occupational
pneumoconiosis and, if so, the percentage of permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was sufficient to have caused the
claimant's or deceased employee's occupational pneumoconiosis or to have perceptibly aggravated
an existing occupational pneumoconiosis or other occupational disease; and
(3) What, if any, physician appeared before the board on behalf of the claimant or employer
and what, if any, medical evidence was produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of such the findings and conclusions of
the board, such the party shall file with the commissioner commission or, on or after the first day
of July, one thousand nine hundred ninety-one, with the office of judges, within thirty days from
receipt of such the copy to such that party, unless for good cause shown the commissioner
commission or chief administrative law judge extends such the time, such the party's objections
thereto to the findings and conclusions of the board in writing, specifying the particular statements
of the board's findings and conclusions to which such party objects. The filing of an objection
within the time specified is hereby declared to be a condition of the right to litigate such the findings
and hence therefore jurisdictional. After the time has expired for the filing of objections to the
findings and conclusions of the board, the commissioner commission or administrative law judge
shall proceed to act as provided in this chapter. If after the time has expired for the filing of
objections to the findings and conclusions of the board no objections have been filed, the report of a majority of the board of its findings and conclusions on any medical question shall be taken to be
plenary and conclusive evidence of the findings and conclusions therein stated in the report. If
objection has been filed to the findings and conclusions of the board, notice thereof of the objection
shall be given to the board, and the members thereof of the board joining in such the findings and
conclusions shall appear at the time fixed by the commissioner commission or office of judges for
the hearing to submit to examination and cross-examination in respect to such the findings and
conclusions. At such the hearing, evidence to support or controvert the findings and conclusions
of the board shall be limited to examination and cross-examination of the members of the board and
to the taking of testimony of other qualified physicians and roentgenologists.
(e) In the event that a claimant receives a final decision that he or she has no evidence of
occupational pneumoconiosis, then such the claimant is barred for a period of three years from the
date of the occupational pneumoconiosis board's decision or until his or her employment with the
employer who employed the claimant at the time designated as the claimant's last date of exposure
in the denied claim has terminated, whichever is sooner, from filing a new claim or pursuing a
previously filed, but unruled upon, claim for occupational pneumoconiosis or requesting a
modification of any prior ruling finding him or her not to be suffering from occupational
pneumoconiosis. For the purposes of this subsection, a claimant's employment shall be deemed
considered to be terminated if, for any reason, he or she has not worked for that employer for a
period in excess of ninety days. Any previously filed, but unruled upon, claim shall be consolidated
with the claim in which the board's decision is made and shall be denied together with the decided
claim. The provisions of this subsection shall not be applied in any claim where doing so would,
in and of itself, later cause a claimant's claim to be forever barred by the provisions of section
fifteen of this article.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the workers' compensation program to
assist workers employees to return to suitable gainful employment after an injury. In order to
encourage workers to return to employment and to encourage and assist employers in providing
suitable employment to injured employees, it shall be is a priority of the commissioner commission
to achieve early identification of individuals likely to need rehabilitation services and to assess the
rehabilitation needs of these injured employees. It shall be is the goal of rehabilitation to return
injured workers employees to employment which shall be is comparable in work and pay to that
which the individual performed prior to the injury. If a return to comparable work is not possible,
the goal of rehabilitation shall be is to return the individual to alternative suitable employment, using
all possible alternatives of job modification, restructuring, reassignment and training, so that the
individual will return to productivity with his or her employer or, if necessary, with another
employer. The Legislature further finds that it is the shared responsibility of the employer, the
employee, the physician and the commissioner commission to cooperate in the development of a
rehabilitation process designed to promote reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent disability, or has sustained an
injury likely to result in temporary disability in excess of one hundred twenty days, and such fact
has been as determined by the commissioner commission, the commissioner commission shall at
the earliest possible time determine whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitation services and if the commissioner
commission determines that the employee can be physically and vocationally rehabilitated and
returned to remunerative employment by the provision of rehabilitation services including, but not
limited to, vocational or on-the-job training, counseling, assistance in obtaining appropriate temporary or permanent work site, work duties or work hours modification, by the provision of
crutches, artificial limbs or other approved mechanical appliances, or medicines, medical, surgical,
dental or hospital treatment or other services which the commission in its sole discretion determines
will directly assist the employee's return to employment, the commissioner commission shall
forthwith immediately develop a rehabilitation plan for the employee and, after due notice to the
employer, expend such an amount as may be necessary for the aforesaid purposes that purpose:
Provided, That such the expenditure for vocational rehabilitation shall not exceed ten twenty
thousand dollars for any one injured employee: Provided, however, That no payment shall be made
for such vocational rehabilitation purposes as provided in this section unless authorized by the
commissioner commission prior to the rendering of such the physical or vocational rehabilitation,
except that payments shall be made for reasonable medical expenses without prior authorization if
sufficient evidence exists which would relate the treatment to the injury and the attending physician
or physicians have requested authorization prior to the rendering of such the treatment: Provided
further, That payment for physical rehabilitation, including the purchase of prosthetic devices and
other equipment and training in use of such the devices and equipment, shall be are considered
expenses within the meaning of section three of this article and shall be are subject to the provisions
of sections three, three-a, three-b and three-c of this article. The provision of any rehabilitation
services shall may be pursuant to a rehabilitation plan to be developed and monitored by a
rehabilitation professional for each injured employee or by such other provider as determined by the
commission. Notwithstanding any other provision of this section to the contrary, the commission
may determine under rules promulgated by the board of managers that a rehabilitation plan or any
component thereof is not appropriate for an injured employee.
(c) In every case in which the commissioner shall order commission orders physical or vocational rehabilitation of a claimant as provided herein in this section, the claimant shall, during
the time he or she is receiving any vocational rehabilitation or rehabilitative treatment that renders
him or her totally disabled during the period thereof of rehabilitation, be compensated on a
temporary total disability basis for such that period.
(d) In every case in which the claimant returns to gainful employment as part of a
rehabilitation plan, and the employee's average weekly wage earnings are less than the average
weekly wage earnings earned by the injured employee at the time of the injury, he or she shall
receive temporary partial rehabilitation benefits calculated as follows: The temporary partial
rehabilitation benefit shall be seventy percent of the difference between the average weekly wage
earnings earned at the time of the injury and the average weekly wage earnings earned at the new
employment, both to be calculated as provided in sections six, six-d and fourteen of this article as
such the calculation is performed for temporary total disability benefits, subject to the following
limitations: In no event shall such are the benefits be subject to the minimum benefit amounts
required by the provisions of subdivision (b), section six of this article, nor shall such may the
benefits exceed the temporary total disability benefits to which the injured employee would be
entitled pursuant to sections six, six-d and fourteen of this article during any period of temporary
total disability resulting from the injury in the claim: Provided, That no temporary total disability
benefits shall be paid for any period for which temporary partial rehabilitation benefits are paid:
Provided, however, That the aggregate award of temporary total rehabilitation or temporary partial
rehabilitation benefits for a single injury for which an award of temporary total rehabilitation or
temporary partial rehabilitation benefits is made on or after the effective date of the amendment and
reenactment of this section in the year two thousand three shall be for a period not exceeding fifty-
two weeks 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 such the change has
occurred, the amount of benefits payable hereunder under this subsection shall be adjusted
prospectively. Temporary partial rehabilitation benefits shall only be payable when the injured
employee is receiving vocational rehabilitation services in accordance with a rehabilitation plan
developed under this section and no payment of temporary partial rehabilitation benefits shall be
made after the claimant has received the vocational training provided under the rehabilitation plan.
(e) The commissioner executive director, in consultation with the board of managers, shall
promulgate propose for promulgation rules for the purpose of developing a comprehensive
rehabilitation program which will assist injured workers to return to suitable gainful employment
after an injury in a manner consistent with the provisions and findings of this section. Such The
rules shall provide definitions for rehabilitation facilities and rehabilitation services pursuant to this
section. Notwithstanding any other provision of this chapter to the contrary, and in addition to the
provisions of section three of this article authorizing employers to participate in a managed health
care plan, including a managed health care plan that provide physical and vocational rehabilitation
services, an employer may contract directly with one or more providers of vocational rehabilitation
services to be the employer's preferred provider of vocational rehabilitation services for its
employees who receive injuries compensable under the provisions of this chapter, and the rules
promulgated under this section may require those employees to use the preferred providers.
__________(f) The reenactment of the provisions of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-nine is for the purpose of reestablishing
the rehabilitation program heretofore created by virtue of the provisions of this section and the rules
promulgated pursuant thereto for all injured employees who sustained injuries on or after the first
day of July, one thousand nine hundred ninety-eight. To this end, the performance council is directed
to reenact the rules promulgated under the prior enactment of this section within fifteen days of the
effective date hereof and the commissioner shall promulgate any revisions to the rules for review
by the performance council on or before the first day of July, one thousand nine hundred ninety-
nine.
§23-4-9b. Preexisting impairments not considered in fixing amount of compensation.
Where an employee has a definitely ascertainable impairment resulting from an occupational
or a nonoccupational injury, disease or any other cause, whether or not disabling, and such the
employee shall thereafter receive receives an injury in the course of and resulting from his or her
employment, unless such the subsequent injury results in total permanent disability within the
meaning of section one, article three of this chapter, such impairment the prior injury, and the effect
thereof of the prior injury, and an aggravation thereof, shall not be taken into consideration in fixing
the amount of compensation allowed by reason of such the subsequent injury, and such
compensation. Compensation shall be awarded only in the amount that would have been allowable
had such the employee not had such the preexisting impairment. Nothing in this section shall be
construed to require requires that the degree of such the preexisting impairment be definitely
ascertained or rated prior to the injury received in the course of and resulting from such the
employee's employment or that benefits must have been granted or paid for such the preexisting
impairment. The degree of such the preexisting impairment may be established at any time by
competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if such the definitely ascertainable preexisting impairment resulted from an injury or disease
previously held compensable and such the impairment had not been rated, benefits for such the
impairment shall be payable to the claimant by or charged to the employer in whose employ the
injury or disease occurred. The employee shall also receive from the second injury reserve created
by section one, article three of this chapter the difference, if any, in the benefit rate applicable in the
more recent claim and the prior claim.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational pneumoconiosis or other occupational
disease, suffered by an employee in the course of and resulting from his or her employment, causes
death, and disability is continuous from the date of such the injury until the date of death, or if death
results from occupational pneumoconiosis or from any other occupational disease, the benefits shall
be in the amounts and to the persons as follows:
(a) If there be are no dependents, the disbursements shall be limited to the expense provided
for in sections three and four of this article;
(b) If there be are dependents as defined in subdivision (d) of this section, such the
dependents shall be paid for as long as their dependency shall continue continues in the same
amount as that was paid or would have been paid the deceased employee for total disability had he
or she lived. The order of preference of payment and length of dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage of such the widow or widower,
and any child or children dependent upon the decedent until each such child shall reach reaches
eighteen years of age or where such the child after reaching eighteen years of age continues as a full-
time student in an accredited high school, college, university, business or trade school, until such
the child reaches the age of twenty-five years, or if an invalid child, to continue as long as such the child remains an invalid. All such persons shall be are jointly entitled to the amount of benefits
payable as a result of employee's death;
(2) A wholly dependent father or mother until death; and
(3) Any other wholly dependent person for a period of six years after the death of the
deceased employee;
(c) If the deceased employee leaves no wholly dependent person, but there are partially
dependent persons at the time of death, the payment shall be fifty dollars a month to continue for
such the portion of the period of six years after the death, as determined by the division may
determine commission, but no such partially dependent person shall receive compensation payments
as a result of the death of more than one employee.
Compensation under subdivisions (b) and (c) hereof of this section shall, except as may be
specifically provided to the contrary therein in those subdivisions, cease upon the death of the
dependent, and the right thereto to the compensation shall not vest in his or her estate.
(d) "Dependent", as used in this chapter, shall mean means a widow, widower, child under
eighteen years of age, or under twenty-five years of age when a full-time student as provided herein
in this section, invalid child or posthumous child, who, at the time of the injury causing death, is
dependent, in whole or 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
herein in this section, child under eighteen years of age legally adopted prior to the injury causing
death, or under twenty-five years of age when a full-time student as provided herein in this section,
father, mother, grandfather or grandmother, who, at the time of the injury causing death, is
dependent, in whole or in part, for his or her support upon the earnings of the employee; and invalid
brother or sister wholly dependent for his or her support upon the earnings of the employee at the time of the injury causing death; and
(e) If a person receiving permanent total disability benefits dies from a cause other than a
disabling injury leaving any dependents as defined in subdivision (d) of this section, an award shall
be made to such the dependents in an amount equal to one hundred four times the weekly benefit
the worker was receiving at the time of his or her death and be paid either as a lump sum or in
periodic payments, at the option of the dependent or dependents. Direct premium rating experience
charges for the payment of such benefits granted as a result of a second injury award of permanent
total disability shall not be made to the employee's employer. It is the intent of the Legislature that
the amendments to this subsection enacted during the regular session of the Legislature in the year
one thousand nine hundred ninety-nine be construed so as to make dependents eligible for benefits
under this subsection retroactive to the second day of February, one thousand nine hundred ninety-
five.
§23-4-11. To whom death benefits paid.
The benefits, in case of death, shall be paid to such one or more dependents of the decedent,
or to such any other persons, for the benefit of all of the dependents, as may be determined by the
commissioner commission, who may apportion the benefits among the dependents in such the
manner as he may deem they consider just and equitable. Payment to a dependent subsequent in
right may be made if the commissioner deems commission considers proper and shall operate it
operates to discharge all other claims therefor for the benefits.
§23-4-12. Application of benefits.
The dependent or person to whom benefits are paid shall apply the same benefits to the use
of the several beneficiaries thereof of the benefits according to their respective claims upon the
decedent for support, in compliance with the finding and direction of the commissioner commission.
§23-4-14. Computation of benefits.
(a) The average weekly wage earnings, wherever earned, of the injured person at the date
of injury, and the average weekly wage in West Virginia as determined by the commissioner
commission, in effect at the date of injury, shall be taken as the basis upon which to compute the
benefits.
(1) In cases involving occupational pneumoconiosis or other occupational diseases, the "date
of injury" shall be is the date of the last exposure to the hazards of occupational pneumoconiosis or
other occupational diseases.
(2) In computing benefits payable on account of occupational pneumoconiosis, the
commissioner commission shall deduct the amount of all prior workers' compensation benefits paid
to the same claimant on account of silicosis, but a prior silicosis award shall not, in any event,
preclude an award for occupational pneumoconiosis otherwise payable under this article.
(b) (1) Until the first day of July, one thousand nine hundred ninety-four, the expression
"average weekly wage earnings, wherever earned, of the injured person, at the date of injury",
within the meaning of this chapter, shall be computed based upon the daily rate of pay at the time
of the injury or upon the average pay received during the two months, six months or twelve months
immediately preceding the date of the injury, whichever is most favorable to the injured employee,
except for the purpose of computing temporary total disability benefits for part-time employees
pursuant to the provisions of section six-d of this article.
(2) On and after the first day of July, one thousand nine hundred ninety-four, the expression
"average weekly wage earnings, wherever earned, of the injured person, at the date of injury",
within the meaning of this chapter, shall be computed based upon the daily rate of pay at the time
of the injury or upon the weekly average derived from the best quarter of wages out of the preceding four quarters of wages as reported to the commissioner commission pursuant to section eleven,
article ten, chapter twenty-one-a of this code subsection (b), section two, article two of this chapter,
whichever is most favorable to the injured employee, except for the purpose of computing temporary
total disability benefits for part-time employees pursuant to the provisions of section six-d of this
article.
(c) The expression "average weekly wage in West Virginia", within the meaning of this
chapter, shall be is the average weekly wage in West Virginia as determined by the commissioner
of the bureau of employment programs in accordance with the provisions of sections ten and eleven,
article six, chapter twenty-one-a of this code and other applicable provisions of said chapter.
(d) In any claim for injuries, including occupational pneumoconiosis and other occupational
diseases, occurring on or after the first day of July, one thousand nine hundred seventy-one, any
award for temporary total, permanent partial or permanent total disability benefits or for dependent
benefits shall be paid at the weekly rates or in the monthly amount in the case of dependent benefits
applicable to the claimant therein in effect on the date of such the injury. If during the life of such
award for temporary total, permanent partial or permanent total disability benefits or for dependent
benefits the weekly rates or the monthly amount in the case of dependent benefits, are increased or
decreased, the claimant shall receive such increased or decreased benefits beginning as of the
effective date of said increase or decrease. 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 therefor must for compensation shall be made on the form or forms prescribed by the division
commission and filed with the division commission within six months from and after the injury or
death, as the case may be, and unless so filed within such the six months period, the right to
compensation under this chapter shall be is forever barred, such time limitation being hereby
declared to be a condition of the right and hence jurisdictional, and all proofs of dependency in fatal
cases must likewise also be filed with the division commission within six months from and after the
death. In case the employee is mentally or physically incapable of filing such the application, it may
be filed by his or her attorney or by a member of his or her family.
(b) To entitle any employee to compensation for occupational pneumoconiosis under the
provisions hereof of this subsection, the application therefor must for compensation shall be made
on the form or forms prescribed by the division commission and filed with the division commission
within three years from and after the last day of the last continuous period of sixty days or more
during which the employee was exposed to the hazards of occupational pneumoconiosis or within
three years from and after the employee's a diagnosed impairment due to occupational
pneumoconiosis was made known to him or her the employee by a physician or which he or she
should reasonably have known, whichever shall last occur, and unless so filed within such the three-
year period, the right to compensation under this chapter shall be is forever barred, such time
limitation being hereby declared to be a condition of the right and hence jurisdictional, or, in the
case of death, the application shall be filed as aforesaid by the dependent of such the employee
within one year from and after such the employee's death, and such time limitation is a condition
of the right and hence jurisdictional.
(c) To entitle any employee to compensation for occupational disease other than occupational
pneumoconiosis under the provisions hereof of this section, the application therefor must for compensation shall be made on the form or forms prescribed by the division commission and filed
with the division commission within three years from and after the day on which the employee was
last exposed to the particular occupational hazard involved or within three years from and after the
employee's occupational disease was made known to him or her by a physician or which he or she
should reasonably have known, whichever shall last occur occurs, and unless so filed within such
the three-year period, the right to compensation under this chapter shall be forever barred, such time
limitation being hereby declared to be a condition of the right and hence therefore jurisdictional, or,
in case of death, the application shall be filed as aforesaid by the dependent of such the employee
within one year from and after such the employee's death, and such time limitation is a condition
of the right and hence jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
Notwithstanding any other provisions of this chapter, nonresident alien beneficiaries shall
be are entitled to the same benefits as citizens of the United States: Provided, however, That the
commissioner commission in his its discretion may make, and such the beneficiary shall be required
to accept, commutation of such the benefits into a lump sum settlement and payment. Nonresident
alien beneficiaries within the meaning hereof shall mean of this section means persons not citizens
of the United States residing outside of the territorial limits of the United States at the time of the
injury with respect to which benefits are awarded.
§23-4-15b. Determination of nonmedical questions by commission; claims for occupational
pneumoconiosis; hearing.
If a claim for occupational pneumoconiosis benefits be is filed by an employee within three
years from and after the last day of the last continuous period of sixty days' exposure to the hazards
of occupational pneumoconiosis, the division commission shall determine whether the claimant was exposed to the hazards of occupational pneumoconiosis for a continuous period of not less than sixty
days while in the employ of the employer within three years prior to the filing of his or her claim,
whether in the state of West Virginia the claimant was exposed to such hazard over a continuous
period of not less than two years during the ten years immediately preceding the date of his or her
last exposure thereto to the hazard and whether the claimant was exposed to such the hazard over
a period of not less than ten years during the fifteen years immediately preceding the date of his or
her last exposure thereto to the hazard. If a claim for occupational pneumoconiosis benefits be is
filed by an employee within three years from and after the employee's occupational pneumoconiosis
was made known to the employee by a physician or otherwise should have reasonably been known
to the employee, the division commission shall determine whether the claimant filed his or her
application within said that period and whether in the state of West Virginia the claimant was
exposed to such the hazard over a continuous period of not less than two years during the ten years
immediately preceding the date of last exposure thereto to the hazard and whether the claimant was
exposed to such the hazard over a period of not less than ten years during the fifteen years
immediately preceding the date of last exposure thereto to the hazard. If a claim for occupational
pneumoconiosis benefits be is filed by a dependent of a deceased employee, the division
commission shall determine whether the deceased employee was exposed to the hazards of
occupational pneumoconiosis for a continuous period of not less than sixty days while in the employ
of the employer within ten years prior to the filing of the claim, whether in the state of West Virginia
the deceased employee was exposed to such the hazard over a continuous period of not less than two
years during the ten years immediately preceding the date of his or her last exposure thereto to the
hazard and whether the claimant was exposed to such the hazard over a period of not less than ten
years during the fifteen years immediately preceding the date of his or her last exposure thereto to the hazard. The division commission shall also determine such other nonmedical facts as may that,
in the division's commission's opinion, be are pertinent to a decision on the validity of the claim.
The division commission shall enter an order with respect to such nonmedical findings
within ninety days following receipt by the division commission of both the claimant's application
for occupational pneumoconiosis benefits and the physician's report filed in connection therewith
with the claimant's application and shall give each interested party notice in writing of these
findings with respect to all such the nonmedical facts. and such The findings and such actions of
the division commission shall be are final unless the employer, employee, claimant or dependent
shall, within thirty days after receipt of such the notice, object to such objects to the findings, and
unless an objection is filed within such the thirty-day period, such the findings shall be are forever
final, such the time limitation being hereby declared to be is a condition of the right to litigate such
the findings and hence therefor jurisdictional. Upon receipt of such an objection, the chief
administrative law judge shall set a hearing as provided in section nine, article five of this chapter.
In the event of an objection to such the findings by the employer, the claim shall, notwithstanding
the fact that one or more hearings may be held with respect to such the objection, mature for
reference to the occupational pneumoconiosis board with like effect as if the objection had not been
filed. If the administrative law judge concludes after the protest hearings that the claim should be
dismissed, a final order of dismissal shall be entered. , which The final order shall be is subject to
appeal in accordance with the provisions of sections ten and twelve, article five of this chapter. If
the administrative law judge concludes after such the protest hearings that the claim should be
referred to the occupational pneumoconiosis board for its review, the order entered shall be
interlocutory only and may be appealed only in conjunction with an appeal from a final order with
respect to the findings of the occupational pneumoconiosis board.
§23-4-16. Commission's jurisdiction over case continuous; modification of finding or order;
time limitation on awards; reimbursement of claimant for expenses; reopening cases
involving permanent total disability; promulgation of rules.
(a) The power and jurisdiction of the division commission over each case shall be is
continuing and the division commission may, in accordance with the following provisions of this
section and after due notice to the employer, make such modifications or changes with respect to
former findings or orders as may be that are justified. Upon and after the second day of February,
one thousand nine hundred ninety-five, the period in which a claimant may request a modification,
change or reopening of a prior award that was entered either prior to or after such that date shall be
determined by the following paragraphs subdivisions of this subsection. Any such request that is
made beyond such that period shall be refused.
(1) Except as provided in section twenty-two of this article, in any claim which was closed
without the entry of an order regarding the degree, if any, of permanent disability that a claimant has
suffered, or in any case in which no award has been made, any such request must be made within
five years of the closure. During that time period, only two such requests may be filed.
(2) Except as stated below, in any claim in which an award of permanent disability was
made, any such request must be made within five years of the date of the initial award. During that
time period, only two such requests may be filed. With regard to those occupational diseases,
including occupational pneumoconiosis, which are medically recognized as progressive in nature,
if any such request is granted by the division commission, then a new five-year period shall begin
begins upon the date of the subsequent award. With the advice of the health care advisory panel, the
commissioner and the compensation programs performance council executive director and the board
of managers shall by rule designate those progressive diseases which are customarily the subject of claims.
(3) No further award may be made in fatal cases except within two years after the death of
the employee.
(4) With the exception of the items set forth in subsection (d), section three of this article,
in any claim wherein in which medical or any type of rehabilitation service has not been rendered
or durable medical goods or other supplies have not been received for a period of five years, then
no request for additional medical or any type of rehabilitation benefits shall be granted nor shall any
such medical or any type of rehabilitation benefits or any type of goods or supplies be paid for by
the division commission if such they were provided without a prior request. For the exclusive
purposes of this paragraph subdivision, medical services and rehabilitation services shall not include
any encounter in which significant treatment was not performed.
(b) In any claim in which an injured employee shall make makes application for a further
period of temporary total disability, if such the application be is in writing and filed within the
applicable time limit stated above, then the division commission shall pass upon the request within
thirty days of the receipt of the request. If the decision is to grant the request, then the order shall
provide for the receipt of temporary total disability benefits. In any case in which an injured
employee shall make makes application for a further award of permanent partial disability benefits
or for an award of permanent total disability benefits, if such the application be is in writing and
filed within the applicable time limit as stated above, the division commission shall pass upon the
request within thirty days of its receipt and, if the division commission determines that the claimant
may be entitled to an award, the division will then commission shall refer the claimant for such
further examinations as may be that are necessary.
(c) If such the application is based on a report of any medical examination made of the claimant and submitted by the claimant to the division commission in support of his or her
application, and the claim is opened for further consideration and additional award is later made, the
claimant shall be reimbursed for the expenses of such the examination. Such The reimbursement
shall be made by the division commission to the claimant, in addition to all other benefits awarded,
upon due proof of the amount thereof being furnished the division commission by the claimant, but
shall in no case exceed the sum fixed pursuant to the division's commission's schedule of maximum
reasonable fees established under the provisions of section three of this article.
(d) The division shall have commission has continuing power and jurisdiction over claims
in which permanent total disability awards have been made after the eighth day of April, one
thousand nine hundred ninety-three.
(1) The division commission shall continuously monitor permanent total disability awards
and may, from time to time, after due notice to the claimant, reopen a claim for reevaluation of the
continuing nature of the disability and possible modification of the award: Provided, That such
reopenings shall not be done sooner than every two years: Provided, however, That any individual
claimant shall only be reevaluated a total of two times after which he or she may not be again
reevaluated under the provisions of this subsection. At such times as the commission may
determine, the commission may require the claimant to provide documents and other information
to the commission, including, but not limited to, tax returns, financial records, and affidavits
demonstrating level of income, recreational activities, work activities, medications used, and
physicians or other medical or rehabilitation providers treating or prescribing medication or other
services for the claimant; require the claimant to appear under oath before the commission or its
duly authorized representative and answer questions; and suspend or terminate any benefits of a
claimant who wilfully fails to provide the information or appear as required: Provided, That the commission shall develop, implement and complete a program as soon as reasonably possible that
requires each person receiving permanent total disability benefits on the effective date of the
amendment and reenactment of this section in the year two thousand three, and each person who is
awarded those benefits thereafter, to submit the tax returns and the affidavit described herein at least
once: Provided, however, That this requirement does not restrict the commission's authority to
require the information that may be required herein at such other times as the commission may
determine. The division commission may reopen a claim for reevaluation when, in the division's
commission's sole discretion, it concludes that there exists good cause to believe that the claimant
no longer meets the eligibility requirements under subdivision (n), section six of this article. The
eligibility requirements, including any vocational standards, shall be applied as those requirements
are stated at the time of a claim's reopening: Provided further, That if a permanent total disability
award was made on or after the eighth day of April, one thousand nine hundred ninety-three, and
on or before the second day of February, one thousand nine hundred ninety-five, the eligibility
requirements for the claimant upon a reopening shall be the eligibility requirements which applied
to his or her claim at the time the award was made. This section shall not be is not applicable to any
claim in which the final decision on the eligibility of the claimant to a permanent total disability
award was made more than ten years prior to the date of proposed reevaluation.
(2) Upon reopening a claim under this subsection, the division commission may take
evidence, have the claimant evaluated, make findings of fact and conclusions of law and shall
vacate, modify or affirm the original permanent total disability award as the record requires. The
claimant's former employer shall not be a party to the reevaluation, but shall be notified of the
reevaluation and may submit such any information to the division commission as the employer may
elect. In the event the claimant retains his or her award following the reevaluation, then the claimant's reasonable attorneys' fees incurred in defending the award shall be paid by the workers'
compensation division commission from the supersedeas reserve of the surplus workers'
compensation fund. In addition, the workers' compensation division commission shall reimburse
a prevailing claimant for his or her costs in obtaining one evaluation on each issue during the course
of the reevaluation with such the reimbursement being made from the supersedeas reserve of the
surplus fund. The compensation programs performance council board of managers shall adopt
criteria for the determination of reasonable attorneys' fees.
(3) This subsection shall not be applied to awards made under the provisions of subdivision
(m), section six of this article. The claimant may seek review of the division's commission's final
order as otherwise provided for in article five of this chapter for review of orders granting or
denying permanent disability awards.
(4) The commission shall establish by rule criteria for review, reopening and reevaluating
a claim under this subsection. The commission shall at least quarterly provide a report of the
exercise of its authority to continuously monitor permanent total disability awards under this section
to the joint committee on government and finance and the joint commission on economic
development.
(e) A claimant may have only one active request for a permanent disability award pending
in a claim at any one time. Any new such request that is made while another is pending shall be
consolidated into the former request.
§23-4-16a. Interest on benefits.
Whenever any award of temporary total, permanent partial or permanent total disability
benefits or dependent benefits is made on or after July one the first day of July, one thousand nine
hundred seventy-one, and a protest is filed thereto to the award or an appeal is taken therefrom from the award by an employer only and not by the claimant or dependent and the award is not ultimately
denied or reduced following such the protest or appeal, the commissioner commission shall add
thereto interest to the award at the simple rate of six percent per annum from the date the award
would have been payable had such the protest or appeal not been filed or taken, exclusive of any
period for which a continuance was granted upon motion of any party other than the protesting or
appealing employer. Any interest payable shall be charged to the account of the protesting or
appealing employer to the extent that the benefits upon which such interest is computed are charged
to the account of such the employer.
§23-4-17. Commutation of periodical benefits.
The commissioner commission, under special circumstances and when the same it is deemed
considered advisable, may commute periodical benefits to one or more lump-sum payments. Upon
the application of any claimant who has received an award of partial or total disability, who is not
a citizen of the United States and desires to reside permanently beyond the territorial limits of the
United States, or upon the application of an alien dependent of a deceased employee with respect
of whose death award of compensation has been made, such the dependent residing in the territorial
limits of the United States at the time of the decedent's death, and desiring to reside permanently
beyond such the territorial limits of the United States, the commissioner commission may commute
into one lump-sum payment the periodical payments to which such the claimant or dependent would
be entitled, but at the rate of one-half the amount that would be payable to a citizen of the United
States under like circumstances., and such The lump-sum payment at the rate aforesaid shall
discharge specified in this section discharges all liability with respect of said to the award, but in no
event shall such the award be paid until such the claimant or dependent shall have has actually
arrived and domiciled himself or herself outside the territorial limits of the United States, except a sufficient portion of said the award to pay transportation and other necessary expenses.
§23-4-18. Mode of paying benefits generally; exemptions of compensation from legal process.
Except as provided by this section, compensation shall be paid only to such the employees
or their dependents and shall be is exempt from all claims of creditors and from any attachment,
execution or assignment other than compensation to counsel for legal services, under the provisions
of, and subject to the limitations contained in section sixteen, article five of this chapter, and other
than for the enforcement of orders for child or spousal support entered pursuant to the provisions
of chapter forty-eight of this code. Payments may be made in such the periodic installments as
determined by the division commission in each case, but in no event less frequently than
semimonthly for any temporary award and monthly for any permanent award. Payments for
permanent disability shall be paid on or before the third day of the month in which they are due. In
all cases where compensation is awarded or increased, the amount thereof of compensation shall be
calculated and paid from the date of disability.
§23-4-20. Postmortem examinations.
The commissioner shall have authority commission may, after due notice to the employer
and claimant, whenever he shall deem it considers it necessary, to order an autopsy and may
designate a duly licensed physician to make such the postmortem examination or examinations as
may be that are necessary to determine the cause of the deceased employee's death., and such The
physician shall file with the commissioner commission a written report of his or her findings.; the
The claimant and the employer, respectively, shall have the right to select a physician of his, her or
its own choosing and, at his, her or its own expense, to participate in the postmortem examination.,
and the The respective physicians selected by the claimant and the employer shall have the right to
concur in any report made by the physician selected by the commissioner commission, or each may file with the commissioner commission a separate report. In any case, including silicosis cases, in
which either the employer or a claimant requests that an autopsy be performed, then such the
autopsy shall be directed as hereinbefore provided in this section., and in In the event that a claimant
for compensation for such the death refuses to consent and permit such the autopsy to be made all
rights to compensation shall be forfeited.
§23-4-22. Permanent disability evaluations; limitations; notice.
Notwithstanding any provision in this chapter to the contrary, any claim which was closed
for the receipt of temporary total disability benefits or which was closed on a no-lost-time basis and
which closure was more than five years prior to the effective date of this section shall not be
considered to still be open or the subject for an evaluation of the claimant for permanent disability
merely because such an evaluation has not heretofore previously been conducted and a decision on
permanent disability has not been made: Provided, That if a request for an evaluation was made in
such a claim prior to the twenty-ninth day of March, one thousand nine hundred ninety-three, the
commissioner commission shall have such the evaluation performed. In every such instance, such
a claim shall be a case in which no award has been made for the purposes of section sixteen of this
article. In every claim closed after the effective date of this section, the commissioner commission
shall give notice to the parties of the claimant's right to a permanent disability evaluation.
§23-4-23. Permanent total disability benefits; reduction of disability benefits; reduction of
benefits; application of section; severability.
(a) This section is applicable whenever benefits are being paid for permanent total disability
benefits arising under subdivision (d), (m) or (n), section six of this article or under section eight-c
of this article. This section is not applicable to the receipt of temporary total disability benefits, the
receipt of permanent partial disability benefits, the receipt of benefits by partially or wholly dependent persons or to the receipt of benefits pursuant to the provisions of subsection (e), section
ten of this article. This section is not applicable to the receipt of medical benefits or the payment
therefor for medical benefits.
(b) Whenever applicable benefits are paid to a beneficiary with respect to the same time
period for which old-age insurance benefit payments under the Social Security Act, 42 U. S. C. 401
and 402, or payments under a self-insurance plan, a wage continuation plan or a disability insurance
policy provided by an employer are also received or being received by the beneficiary, then such
the applicable benefits shall be reduced by these amounts:
(1) Fifty percent of the amount of full old-age insurance benefits received or being received
under the Social Security Act: Provided, That if the claimant is receiving reduced old-age
retirement benefits, then ten percent of the amount of old-age social security insurance benefits, had
such benefits not been reduced, shall be deducted from the applicable benefits: Provided, however,
That social security disability benefits shall not be deducted from the applicable benefits when such
disability benefits are later changed to old-age insurance benefits upon the claimant's attaining the
age specified for such conversion by the social security administration;
(2) (1) The after-tax amount of the payments received or being received under a self-
insurance plan, a wage continuation plan or under a disability insurance policy provided by an
employer if the employee did not contribute directly to the plan or to the payment of premiums
regarding the disability insurance policy; or
(3) (2) The proportional amount, based on the ratio of the employer's contributions to the
total insurance premiums for the policy period involved, of the after-tax amount of the payments
received or being received by the employee pursuant to a disability insurance policy provided by
an employer if the employee did contribute directly to the payment of premiums regarding the disability insurance policy: Provided, That in no event shall applicable benefits be reduced below
the minimum weekly benefits as provided for in subdivisions (b) and (d), section six of this article.
(c) The commissioner shall notify a claimant or self-insured employer of possible eligibility
for social security benefits and the requirements for establishing proof of application for those
benefits. Notification shall be promptly mailed by the commissioner or self-insured employer to the
claimant after the date on which by reason of age the claimant may be entitled to social security
benefits. A self-insured employer shall file a copy of any such notice of possible eligibility with the
commissioner within ten days of its mailing to the claimant.
(1) Within thirty days after the receipt of the notification of possible eligibility, the claimant
shall:
(A) Make application for social security benefits;
(B) Provide the commissioner or a self-insured employer with proof of that application; and
(C) Provide the commissioner or self-insured employer with an authorization for release of
information which shall be utilized by the commissioner or self-insured employer to obtain
necessary benefit entitlement and amount information from the social security administration. The
authorization for release of information shall be effective for one year.
(2) Failure of the claimant to provide the proof of application or authorization for release of
information shall allow the commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefits until the proof of application and
the authorization for release of information is provided. Compensation benefits withheld shall be
reimbursed to the claimant upon the providing of the required proof of application or the
authorization for release of information, or both.
(d) If the commissioner or the self-insured employer is required to submit a new authorization for release of information to the social security administration in order to receive
information necessary to comply with this section, the claimant shall provide the new authorization
for release of information within thirty days of a request by the commissioner or self-insured
employer. Failure of the claimant to provide the new authorization for release of information shall
allow the commissioner or self-insured employer with the approval of the commissioner to
discontinue the payment of applicable benefits until the authorization for release of information is
provided. Compensation benefits withheld shall be reimbursed to the claimant upon the providing
of the authorization for release of information.
(e) Within thirty days after either the date of first payment of benefits or after the date of
application for any benefit under subsection (b) of this section, whichever is later, the claimant shall
provide the commissioner or self-insured employer with a properly executed authorization for
release of information which shall be utilized by the commissioner or self-insured employer to
obtain necessary benefit entitlement and amount information from the appropriate source. The
authorization for release of information shall be effective for one year. Failure of the claimant to
provide a properly executed authorization for release of information shall allow the commissioner
or self-insured employer with the approval of the commissioner to discontinue the payment of
applicable benefits until the authorization for release of information is provided. Compensation
benefits withheld shall be reimbursed to the claimant upon the providing of the authorization for
release of information. If the commissioner or the self-insured employer is required to submit a new
authorization for release of information to the appropriate source in order to receive information
necessary to comply with this section, the claimant shall provide the new authorization for release
of information within thirty days of a request by the commissioner or self-insured employer. Failure
of the claimant to provide the new authorization for release of information shall allow the commissioner or self-insured employer with the approval of the commissioner to discontinue the
payment of applicable benefits until the authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the claimant upon the providing of the
authorization for release of information.
(f) Any benefit payments under the Social Security Act, or any fund, policy or program as
specified under subsection (b) of this section which the claimant receives after the effective date of
this section and during a period in which the claimant also receives unreduced workers'
compensation benefits shall be considered to create an overpayment of benefits for that period. The
commissioner or self-insured employer shall calculate the amount of the overpayment and send a
notice of overpayment and a request for reimbursement to the claimant. Failure by the claimant to
reimburse the commissioner or self-insured employer within thirty days after the mailing date of the
notice of request for reimbursement shall allow the commissioner or the self-insured employer, with
the approval of the commissioner, to discontinue fifty percent of future benefits payments. The
benefit payments withheld shall be credited against the amount of the overpayment. Payment of the
appropriate benefit shall resume when the total amount of the overpayment has been withheld. Any
self-insured employer taking a credit or making a reduction as provided for in this subsection shall
immediately report to the commissioner the amount of the credit or reduction and, as requested by
the commissioner, furnish to the commissioner satisfactory proof of the basis for a credit or
reduction.
(g) Nothing in this section shall be considered to compel a claimant to apply for early federal
social security old-age benefits or to apply for other early or reduced benefits.
(h) (c) This section applies to awards of permanent total disability made after the effective
date of this section.
(i) (d) The commissioner and the compensation programs performance council board of
managers shall promulgate the appropriate rules for the interpretation, processing and enforcement
of this section.
(j) (e) If any portion of this section or any application of this section is subsequently found
to be unconstitutional or in violation of applicable law, it shall not affect the validity of the
remainder of this section or such the applications of the section as that are not unconstitutional or
in such violation.
§23-4-24. Permanent total disability awards; retirement age; limitations on eligibility and the
introduction of evidence; effects of other types of awards; procedures; requests for
awards; jurisdiction.
(a) Notwithstanding any provision of this chapter to the contrary, except as stated below, no
claimant shall be awarded permanent total disability benefits arising under subdivision (d) or (n),
section six of this article or of section eight-c of this article who terminates active employment and
is receiving full old-age retirement benefits under the Social Security Act, 42 U. S. C. 401 and 402.
Any such claimant shall be evaluated only for the purposes of receiving a permanent partial
disability award premised solely upon the claimant's impairments. This subsection shall is not be
applicable in any claim in which the claimant has completed the submission of his or her evidence
on the issue of permanent total disability prior to the later of the following: Termination of active
employment or the initial receipt of full old-age retirement benefits under the Social Security Act.
Once the claimant has terminated active employment and has begun to receive full old-age social
security retirement benefits, the claimant shall not be permitted to may not produce additional
evidence of permanent total disability before the division commission or the office of judges nor
shall such a the claim be remanded for the production of such the evidence.
(b) For the purposes of subdivisions (d) and (n), section six of this article, the award of
permanent partial disability benefits under the provisions of section six-b of this article or under that
portion of section six-a of this article which awards twenty weeks of benefits to a claimant who has
occupational pneumoconiosis but without measurable pulmonary impairment therefrom shall not
be counted towards the eighty-five percent needed to gain the rebuttable presumption of permanent
total disability or towards the fifty percent threshold of paragraph (1), subdivision (n), section six
of this article when such claimant has terminated active employment and is receiving federal
nondisability pension or retirement benefits, including old-age benefits under the Social Security
Act. This subsection shall not affect any other awards of permanent partial disability benefits and
their use in achieving the rebuttable eighty-five percent presumption or the fifty percent threshold.
(c) (b) The workers' compensation division shall have commission has the sole and exclusive
jurisdiction to initially hear and decide any claim or request pertaining, in whole or in part, to
subdivision (d) or (n), section six of this article. Any claim or request for permanent total disability
benefits arising under said subdivisions shall first be presented to the division commission as part
of the initial claim filing or by way of an application for modification or adjustment pursuant to
section sixteen of this article. The office of judges may consider such a claim only after the division
commission has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of disability benefits for wages earned
by claimant.
(a) After the eighth day of April, one thousand nine hundred ninety-three, a reduction in the
amount of benefits as specified in subsection (b) of this section shall be made whenever benefits are
being paid for a permanent total disability award regardless of when such the benefits were awarded.
This section is not applicable to the receipt of medical benefits or the payment therefor for medical benefits, the receipt of permanent partial disability benefits, the receipt of benefits by partially or
wholly dependent persons, or to the receipt of benefits pursuant to the provisions of subsection (e),
section ten of this article. Prior to the application of this section to any claimant, the division
commission shall give the claimant notice of the effect of this section upon a claimant's award if and
when such the claimant later earns wages.
(b) Whenever applicable benefits are paid to a claimant with respect to the same time period
in which the claimant has earned wages as a result of his or her employment, the following reduction
in applicable benefits shall be made. The claimant's applicable monthly benefits and monthly net
wages received from the current employment shall be added together. If such the total exceeds by
more than one hundred twenty percent of the amount of the claimant's monthly net wages earned
during his or her last employment prior to the award of permanent total disability benefits, then such
the excess shall be reduced by one dollar for each two dollars that the claimant's monthly benefits
and monthly net wages exceed the one hundred twenty percent level: Provided, That in no event
shall applicable benefits be reduced below the minimum weekly benefits as provided for in
subdivisions (b) and (d), section six of this article.
ARTICLE 4A. DISABLED WORKERS' RELIEF FUND.
§23-4A-1. Disabled workers' relief fund created.
For the relief of persons who are receiving benefits pursuant to a permanent total disability
award in amounts less than thirty-three and one-third percent of the average weekly wage for the
state of West Virginia per month, and for the relief of widows who are receiving benefits on account
of the death of an employee in amounts less than thirty-three and one-third percent of the average
weekly wage in the state of West Virginia per month, and for the relief of children of employees
deceased before one thousand nine hundred sixty-seven, who are under the age of twenty-three and who are full-time students, and for the relief of other persons who are receiving dependents' benefits
on account of the death of an employee in amounts less than the specific monetary amounts set forth
in section ten, article four of this chapter and in effect as of July one the first day of July, one
thousand nine hundred seventy-three, there is hereby created continued a separate fund, to be
heretofore known as the "Disabled Workmen's Relief Fund", and which shall hereafter be known
as the "Disabled Workers' Relief Fund", which fund shall consist of such any sums as that are, from
time to time, made available to carry out the objects and purposes of this article. Said The fund shall
be in the custody of the state treasurer and disbursements therefrom from the fund shall be made
upon requisition signed by the commissioner executive director to those persons entitled to
participate therein in the fund and in such amounts to each participant as is that are provided in
section three of this article.
§23-4A-3. Computation of benefits.
Each individual entitled to participate in the disabled workers' relief fund shall be is entitled
to receive payments without application (except that an application shall be required under section
five of this article) from said the fund of an amount equal to the difference between the amounts set
forth in section one of this article and the amount said the individual is in fact receiving by virtue
of and under the laws of this state. The first such payment shall be made concurrently with the
payment to him or her of workers' compensation on the first day of August, one thousand nine
hundred seventy-six, and subsequent payments shall be made during the period thereafter in which
such the participant shall be is entitled to workers' compensation benefits by virtue of and under the
laws of this state.
§23-4A-5. Employers providing own system of compensation.
The commissioner executive director shall promptly require of each employer who has elected to pay direct compensation direct under the provisions of section nine, article two of this
chapter a verified list of the names and addresses of all persons to whom such the employer is
paying workers' compensation on account of permanent total disability or because of the death of
an employee and such any evidence respecting such those persons as the commissioner executive
director may reasonably consider necessary to determine the eligibility of any such person to
participate in the disabled workers' relief fund. Any person claiming the right to participate in said
the fund under the provisions of this section may file his or her application therefor for participation
with the commissioner executive director and shall be accorded a hearing thereon on the application.
§23-4A-6. Powers of commission over disabled workers' relief fund.
In the investigation and determination of the right of persons to participate in the disabled
workmen's workers' relief fund, the commissioner shall have executive director has and may
exercise all the powers which he or she possesses under the other articles of this chapter. His or her
powers and jurisdiction over each case shall be is continuing, but there shall be no appeal from his
the commission's decisions to any other body or tribunal. No attorney, representative or agent of
any claimant or participant shall be is entitled to charge or receive a fee or compensation or gratuity
in any form for representing or assisting or pretending to represent or assist any person to become
a participant in said the disabled workmen's workers' relief fund.
§23-4A-8. Disabled workers' relief fund; how funded.
For the purpose of carrying out the provisions of this article, the commissioner board of
managers shall transfer annually, out of the interest earned during the previous year on investments
held by the workers' compensation fund, and out of the amount assessed against self-insured
employers pursuant to the provisions of section nine, article two section nine of this chapter an
amount estimated by the commissioner executive director to be necessary to carry out the provisions of this article for one year.
Such The money shall be deposited by the commissioner board of managers in the disabled
workers' relief fund, as required by this article.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-2. Coal-workers' pneumoconiosis fund established.
For the relief of persons who are entitled to receive benefits by virtue of Title IV of the
federal Coal Mine Health and Safety Act of 1969, as amended, there is hereby established continued
a fund to be known as the coal-workers' pneumoconiosis fund, which fund shall be separate from
the workers' compensation fund. The coal-workers' pneumoconiosis fund shall consist of premiums
and other funds paid thereto to the fund by employers, subject to the provisions of Title IV of the
federal Coal Mine Health and Safety Act of 1969, as amended, who shall elect to subscribe to such
the fund to ensure the payment of benefits required by such the act.
The state treasurer shall be the custodian of the coal-workers' pneumoconiosis fund, and all
premiums, deposits or other moneys paid thereto to the fund shall be deposited in the state treasury
to the credit of the coal-workers' pneumoconiosis fund. Disbursements from such the fund shall be
made upon requisition signed by the commissioner executive director of the workers' compensation
commission to those persons entitled to participate therein in the fund. The West Virginia state
board of investments shall have authority to may invest any surplus, reserve or other moneys
belonging to the coal-workers' pneumoconiosis fund in accordance with article six, chapter twelve
of this code.
§23-4B-5. Payment of benefits.
Upon receipt of an order of compensation issued pursuant to a claim for benefits filed under
the provisions of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, the commissioner executive director shall disburse the coal-workers' pneumoconiosis fund in such the
amounts and to such the persons as said directed by the order shall direct.
§23-4B-6. Coal-workers' pneumoconiosis fund; how funded.
For the purpose of creating the coal-workers' pneumoconiosis fund, each employer, who
shall elect elects to subscribe to such the fund, shall pay premiums based upon and being such a
percentage of the payroll of such the employer as determined by the commissioner may determine
board of managers. It shall be is the duty of the commissioner board of managers to fix and
maintain the lowest possible rates of premiums consistent with the maintenance of a solvent fund
and the creation and maintenance of a reasonable surplus after providing for payment to maturity
of all liability insured pursuant to Title IV of the federal Coal Mine Health and Safety Act of 1969,
as amended. Such premium The rates shall be adjusted annually or more often as may, in the
opinion of the commissioner board of managers, be necessary.
The commissioner board of managers may by rule and regulation classify subscribers into
groups or classes according to the nature of the hazards incident to the business thereof of the
subscribers and assign premium rates thereto to the subscribers. In addition, the commissioner
board of managers may by rule and regulation prescribe procedures for subscription, payroll
reporting, premium payment, termination of subscription, reinstatement and other matters pertinent
to such the subscribers' continuing participation in the coal-workers' pneumoconiosis fund.
§23-4B-7. Administration.
The coal-workers' pneumoconiosis fund shall be administered by the commissioner of the
bureau of employment programs executive director of the workers' compensation commission, who
shall employ such any employees as may be necessary to discharge his or her duties and
responsibilities under this article. All payments of salaries and expenses of such the employees and all expenses peculiar to the administration of this article shall be made by the state treasurer from
the coal-workers' pneumoconiosis fund upon requisitions signed by the commissioner executive
director.
§23-4B-8b. Transfer of funds to workers' compensation fund.
(a) Notwithstanding any provision of section eight of this article to the contrary, the assets
which were previously transferred from the coal-workers' pneumoconiosis fund and held in a
separate account may, on or after the first day of July, two thousand three, be expended for workers'
compensation fund liabilities.
(b) The Legislature hereby finds and declares that there is a substantial actuarial surplus in
the coal-workers' pneumoconiosis fund in excess of one hundred seventy million dollars. The
Legislature further finds and declares that there is a substantial actuarial deficit in the workers'
compensation fund. The executive director shall conduct an actuarial audit to determine the amount
of the actuarial surplus in the coal-workers' pneumoconiosis fund as of the thirtieth day of June, two
thousand three, and certify the amount, as of that date, in a written order which together with the
results of the audit shall be a public record. The executive director shall also obtain a statement
from the commission's actuary that a distributable surplus exists in the coal-workers'
pneumoconiosis fund. When the actuary provides the statement, and notwithstanding any provision
of this article to the contrary, the executive director shall, by written order, transfer and amount not
to exceed one hundred seventy million dollars from the coal-workers' pneumoconiosis fund to the
workers' compensation fund, which assets shall thereupon become merged into and consolidated
with the workers' compensation fund and expended for workers' compensation fund liabilities:
Provided, That a level of reserve shall be retained in the coal-workers' pneumoconiosis fund
sufficient within a seventy-five percent confidence level, on an actuarial basis, to satisfy the payment of all claims incurred, including claims which were incurred but not reported, on or before
the thirtieth day of June, two thousand three. In the event the commission's actuary or an actuary
employed by the board of managers determines prior to the thirtieth day of June, two thousand six,
that the assets of the coal-workers' pneumoconiosis fund are not adequate to enable the coal-
workers' pneumoconiosis fund to meet its claim obligations under Title IV of the federal Coal Mine
Health and Safety Act of 1996, as amended, the executive director may transfer an amount not to
exceed seventy million dollars from the workers' compensation fund to the coal-workers'
pneumoconiosis fund for expenditure to meet those obligations.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-2. Employers' excess liability fund established.
(a) To provide insurance coverage for employers subject to this chapter who may be
subjected to liability for any excess of damages over the amount received or receivable under this
chapter, the division commission may continue the fund known as the employers' excess liability
fund, which fund shall be separate from the workers' compensation fund. The employers' excess
liability fund shall consist of premiums paid thereto to it by employers who may voluntarily elect
to subscribe to the fund for coverage of potential liability to any person who may be entitled to any
excess of damages over the amount received or receivable under this chapter.
(b) The commissioner and the compensation programs performance council are authorized
to board of managers may provide for, by the promulgation of a rule pursuant to subdivisions (b)
and (c), section seven, article three, chapter twenty-one-a of this code section one-a, article one of
this chapter, the continuance, abolition or sale of the employers' excess liability fund established
by section one of this article. In the event that the fund is to be sold, the sale shall be conducted
through the solicitation of competitive bids. Any funds that may remain after the sale or abolition of the employers' excess liability fund shall be paid into and become a part of the workers'
compensation fund to be used for the purposes of that fund. In the event that the employers' excess
liability fund program is abolished and the remaining liabilities of that program exceed the amount
retained in the employers' excess liability fund, such the excess liability including the costs of
administration shall be paid for from the workers' compensation fund.
§23-4C-3. Payment of excess damages from fund.
Upon receipt of a final order of a court determining the liability under section two, article
four of this chapter of a subscribing employer and the amount of the excess of damages over the
amount received or receivable under this chapter, the commissioner executive director shall make
disbursements from the employers' excess liability fund in such the amounts and to such the persons
as such directed by the final order may direct. In the event of a proposed settlement of a disputed
claim against a subscribing employer, the commissioner executive director, upon approving the
settlement upon petition by the subscribing employer, shall make disbursements from the
employers' excess liability fund in such the amounts and to such the persons as specified in the
approved settlement may specify. In the event of the settlement of any disputed claim wherein in
which one or more of the persons entitled to the proceeds to be paid pursuant to such the settlement
is under a legal disability by reason of age, mental incapacity or other reason, such the settlement,
if required by other provisions of law to be approved by a circuit court, shall be approved by the
circuit court of the county wherein such in which the person under disability is a resident or wherein
in which a civil action could be brought and maintained upon such the claim, in addition to being
approved by the commissioner commission as required by this section. The commissioner executive
director shall by legislative rule establish criteria and procedures for the settlement of all disputed
claims. In order to expeditiously establish such criteria and procedures, the commissioner is hereby given authority to promulgate such emergency rule or rules as may be necessary in accordance with
the provisions of section fifteen, article three, chapter twenty-nine-a of this code. The provisions
of said section fifteen, article three, chapter twenty-nine-a notwithstanding such emergency rule,
whether procedural, interpretive or legislative, shall be effective upon the filing thereof in the state
register and shall have an effective period of not to exceed eighteen months, unless any such rule
or rules be altered or amended or such period of time shortened or lengthened by subsequent act of
the Legislature. No action shall lie for de novo or other review of such rule to contest or question
the existence of circumstances justifying the promulgation of an emergency rule nor to challenge
the validity of such rule because of its classification as an emergency rule.
§23-4C-4. Employers' excess liability fund; how funded.
For the purpose of creating the employers' excess liability fund, each employer who shall
elect elects to subscribe to the fund shall pay premiums based upon and being such a percentage of
the payroll of the employer as determined by the commissioner may determine board of managers.
It shall be is the duty of the commissioner board of managers to fix and maintain the lowest possible
rates or premiums consistent with the maintenance of a solvent fund. The premium rates shall be
adjusted annually or more often as may, in the opinion of the commissioner board of managers, be
necessary.
The commissioner board of managers shall initially classify subscribers into groups or
classes according to the nature of the unusual hazards incident to the business thereof of the
subscribers as contemplated by section four, article two of this chapter and assign premium rates
thereto to the subscribers. The fixing, maintaining and adjusting of premium rates and the initial
classification of subscribers into groups or classes pursuant to this section shall be deemed to be are
findings or determinations of fact and not a legislative rule. In addition, the commissioner board of managers shall by legislative rule prescribe procedures for subscription, payroll reporting,
premium payment, termination of subscription, reinstatement, reclassification of groups, classes or
subscribers, the increase or decrease of premiums based upon incidence of liability and amounts
awarded, and other matters pertinent to the subscribers' continuing participation in the employers'
excess liability fund.
§23-4C-5. Administration.
The employers' excess liability fund shall be administered by the commissioner of
employment programs executive director, who shall employ such any employees as may be that are
necessary to discharge his or her duties and responsibilities under this article. All payments of
salaries and expenses of the employees and all expenses peculiar to the administration of this article
shall be made by the state treasurer from the employers' excess liability fund upon requisitions
signed by the commissioner executive director.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured of decision; procedures on claims; objections
and hearing.
(a) The workers' compensation division shall have full power and authority to commission
may hear and determine all questions within its jurisdiction. In matters arising under articles three
and four of this chapter, the division commission shall promptly review and investigate all claims.
The parties to a claim shall file such the information in support of their respective positions as they
deem consider proper. In addition, the division is authorized to commission may develop such
additional information as it deems that it considers to be necessary in the interests of fairness to the
parties and in keeping with the fiduciary obligations owed to the fund. With regard to any issue
which is ready for a decision, the division commission shall explain the basis of its decisions.
(b) Except with regard to interlocutory matters and those matters set forth in subsection (d)
of this section, upon making any decision, upon the making or refusing to make any award or upon
the making of any modification or change with respect to former findings or orders, as provided by
section sixteen, article four of this chapter, the division commission shall give notice, in writing, to
the employer, employee, claimant, or dependant as the case may be, of its action, which. The notice
shall state the time allowed for filing an objection to such the finding and such. The action of the
division shall be commission is final unless the employer, employee, claimant or dependant shall,
within thirty days after the receipt of such the notice, object in writing, to such the finding, and
unless. Unless an objection is filed within such the thirty-day period, such the finding or action shall
be forever is final, such. This time limitation being hereby declared to be is a condition of the right
to litigate such the finding or action and hence jurisdictional. Any such objection shall be filed with
the office of judges with a copy served upon the division commission and other parties in
accordance with the procedures set forth in sections eight and nine of this article. In all instances
where a self-insured employer or a third-party administrator has made claims decisions as authorized
in this chapter, they shall provide claimants and the commission notice of all claims decisions as
provided for by rules for self-administration promulgated by the board of managers, and shall be
bound by each requirement imposed upon the commission by this article.
(c) Where a finding or determination of the division commission is protested only by the
employer, and the employer does not prevail in its protest, and in the event the claimant is required
to attend a hearing by subpoena or agreement of counsel or at the express direction of the division
commission or office of judges, then such the claimant in addition to reasonable traveling and other
expenses shall be reimbursed for loss of wages incurred by the claimant in attending such the
hearing.
(d) Once an objection has been filed with the office of judges, the parties to the objection
shall be offered an opportunity for mediation of the disputed issue by the division. If all of the
parties to the objection agree to mediation, the division shall designate a deputy who was not
involved in the original decision to act as mediator: Provided, That on issues related solely to the
medical necessity of proposed medical treatment or diagnostic services, the division shall offer the
parties to the objection a selection of names of medical providers in the appropriate specialty. The
parties shall then either agree upon a medical provider who shall act as mediator or, in the absence
of an agreement, the division shall select a medical provider who shall act as mediator. In cases
where issues of medical necessity are intertwined with nonmedical treatment or nondiagnostic
issues, both a medical provider and a designated deputy shall act as comediators and shall consider
their respective issues. Neither shall be empowered to overturn the decision of the other.
Upon entering into mediation, the parties shall inform the office of judges of that action and
the office of judges shall stay further action on the objection.
The mediator shall solicit the positions of the parties and shall review such additional
information as the parties or the division shall furnish. The mediator shall then issue a decision in
writing with the necessary findings of fact and conclusions of law to support that decision. If any
party disagrees with the decision, that party may note its objection to the office of judges, the
division and the other parties, and the office of judges shall lift the stay on the original protest. The
decision and any information introduced during the attempted mediation shall be subject to
consideration by the office of judges in making its decision on the objection. Upon acceptance by
the parties of the result of the mediation, the office of judges shall dismiss the objection with
prejudice.
The mediator shall conduct the mediation in an informal manner and without regard to the formal rules of evidence and procedure. Once the parties agree to mediation, then the agreement
cannot be withdrawn.
(e) The panel of medical providers who shall serve as mediators shall be selected and
approved by the compensation programs performance council. A medical provider serving as a
mediator shall have the same protections from liability as does the division's employees with regard
to their decisions including coverage by the board of risk management which shall be provided by
the workers' compensation division.
(f) The division is expressly authorized to amend, correct or set aside any order on any issue
entered by it which is on its face defective or clearly erroneous or the result of mistake, clerical error
or fraud. Jurisdiction to take this action shall continue until the expiration of one hundred eighty
days from the date of entry of an order unless the order is sooner affected by appellate action:
Provided, That corrective actions in the case of fraud may be taken at any time.
(d) The commission or self-insured employer 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 three hundred sixty five days from the date of entry of an order unless the order is
sooner affected by appellate action: Provided, That corrective actions in the case of fraud may be
taken at any time.
__________(g) (e) All objections to orders of the division commission or self-insured employers shall
be styled in the name of the workers' compensation division commission. All appeals prosecuted
from the office of judges or from the appeal board shall either be in the name of the workers'
compensation division commission or shall be against the workers' compensation division commission unless the parties to the appeal are limited to a claimant and a self-insured employer.
In all such matters actions under this article, the workers' compensation division commission shall
be the party in interest unless the parties to the appeal are limited to a claimant and a self-insured
employer.
§23-5-2. Application by employee for further adjustment of claim; objection to modification;
hearing.
In any case where an injured employee makes application in writing for a further adjustment
of his or her claim under the provisions of section sixteen, article four of this chapter, and such the
application discloses cause for a further adjustment thereof, the division commission shall, after due
notice to the employer, make such the modifications, or changes with respect to former findings or
orders in such the claim as may be that are justified, and any. Any party dissatisfied with any such
modification or change so made by the division shall commission is, upon proper and timely
objection, be entitled to a hearing, as provided in section nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
If, however, in any case in which application for further adjustment of a claim is filed under
the preceding section, it shall appear appears to the division commission that such an application
filed under section two of this article fails to disclose a progression or aggravation in the claimant's
condition, or some other fact or facts which were not theretofore previously considered by the
division commission in its former findings, and which would entitle such the claimant to greater
benefits than the claimant has already received, the division commission shall, within a reasonable
time, notify the claimant and the employer that such the application fails to establish a prima facie
cause for reopening the claim such. The notice shall be in writing stating the reasons for denial and
the time allowed for objection to such the decision of the division commission. The claimant may, within thirty days after receipt of such the notice, object in writing to such the finding and unless.
Unless the objection is filed within such the thirty-day period, no such objection shall be allowed,
such. This time limitation being hereby declared to be is a condition of the right to such objection
and hence jurisdictional. Upon receipt of an objection, the office of judges shall afford the claimant
an evidentiary hearing as provided in section nine of this article.
§23-5-4. Application by employer for modification of award; objection to modification;
hearing.
In any case wherein in which an employer makes application in writing for a modification
of any award previously made to an employee of said the employer, the commission shall make a
decision upon the application. and such If the application discloses cause for a further adjustment
thereof, the division commission shall, after due notice to the employee, make such the
modifications or changes with respect to former findings or orders in such form as may be that are
justified, and any. Any party dissatisfied with any such modification or change so made by the
division shall commission or by the denial of an application for modification is, upon proper and
timely objection, be entitled to a hearing as provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any such case it shall appear appears to the division commission that the application
filed pursuant to section four of this article fails to disclose some fact or facts which were not
theretofore previously considered by the division commission in its former findings, and which
would entitle such the employer to any modification of said the previous award, the division
commission shall, within sixty days from the receipt of such the application, notify the claimant and
employer that such the application fails to establish a just cause for modification of said the award.
Such The notice shall be in writing stating the reasons for denial and the time allowed for objection to such the decision of the division commission. The employer may, within thirty days after receipt
of said the notice, object in writing to such the decision, and unless. Unless the objection is filed
within such the thirty-day period, no such objection shall be allowed, such. This time limitation
being hereby declared to be is a condition of the right to such objection and hence jurisdictional.
Upon receipt of such the objection, the office of judges shall afford the employer an evidentiary
hearing as provided in section nine of this article.
§23-5-6. Time periods for objections and appeals; extensions.
Notwithstanding the fact that the time periods set forth for objections, protests and appeals
to or from the workers' compensation appeal board office of judges are jurisdictional, such the
periods may be extended or excused upon application of either party within a period of time equal
to the applicable period by requesting an extension of such the time period showing good cause or
excusable neglect, accompanied by the objection or appeal petition. In exercising such discretion
the administrative law judge, appeal board or court, as the case may be, shall consider whether the
applicant was represented by counsel and whether timely and proper notice was actually received
by the applicant or the applicant's representative.
§23-5-7. Compromise and settlement.
With the exception of medical benefits for non-orthopedic occupational disease claims, the
claimant, the employer and the workers' compensation division commission may negotiate a final
settlement of any and all issues in a claim wherever the claim may then be is in the review
administrative or appellate processes. Upon entering into an agreement, the parties shall file the
written and executed agreement with the office of judges. The office of judges shall review the
proposed agreement to determine if it is fair and reasonable to the parties and shall ensure that each
of the parties are is fully aware of the effects of the agreement including what each party is conceding in exchange for the agreement. If the office of judges concludes that the agreement is
not fair or is not reasonable or that one of the parties is not fully informed, then the agreement will
not be approved, which. The decision on this question shall is not be reviewable. If the employer
is not active in the claim, then the division commission may negotiate a final settlement of any and
all issues in a claim except for medical benefits for non-orthopedic occupational disease claims with
the claimant. Upon approval of the settlement, it shall be made a part of the claim record and the.
The office of judges shall send written notice of the settlement to all parties and, where appropriate,
to the appeal board or the supreme court of appeals. Except in cases of fraud, no issue that is the
subject of an approved settlement agreement may be reopened by any party, including the division
commission. Any settlement agreement may provide for a lump-sum payment or a structured
payment plan, or any combination thereof, or such any other basis as the parties may agree. If such
a self-insured employer later fails to make the agreed-upon payment, the division commission shall
assume the obligation to make the payments and shall be entitled to recover the amounts paid or to
be paid from the self-insured employer and its sureties or guarantors or both as provided for in
sections five and five-a, article two of this chapter.
The amendments to this section enacted during the regular session of the Legislature in the
year one thousand nine hundred ninety-nine shall apply to all settlement agreements executed after
such the effective date.
§23-5-8. Designation of office of administrative law judges; powers of chief administrative law
judge.
(a) The workers' compensation office of administrative law judges previously created
pursuant to chapter twelve, acts of the Legislature, one thousand nine hundred ninety, second
extraordinary session, is hereby continued and designated to be an integral part of the workers' compensation system of this state. The office of judges shall be under the supervision of a chief
administrative law judge who shall be appointed by the governor, with the advice and consent of the
Senate. The previously appointed incumbent of that position who was serving on the second day
of February, one thousand nine hundred ninety-five, shall continue to serve in that capacity unless
subsequently removed as provided for in subsection (b) of this section.
(b) The chief administrative law judge shall be a person who has been admitted to the
practice of law in this state and shall also have had at least four years of experience as an attorney.
The chief administrative law judge's salary shall be set by the compensation programs performance
workers' compensation board of managers created in section one, article three, chapter twenty-one-a
of this code. Said The salary shall be within the salary range for comparable chief administrative
law judges as determined by the state personnel board created by section six, article six, chapter
twenty-nine of said this code. The chief administrative law judge may only be removed by a vote
of two thirds of the members of the compensation programs performance council workers'
compensation board of managers and shall not be removed except for official misconduct,
incompetence, neglect of duty, gross immorality or malfeasance cause and then only after he or she
has been presented in writing with the reasons for his or her removal and is given opportunity to
respond and to present evidence. No other provision of this code purporting to limit the term of
office of any appointed official or employee or affecting the removal of any appointed official or
employee shall be is applicable to the chief administrative law judge.
(c) By and with the consent of the commissioner the The chief administrative law judge shall
employ administrative law judges and other personnel as that are necessary for the proper conduct
of a system of administrative review of orders issued by the workers' compensation division
commission which orders have been objected to by a party. and all such The employees shall be in the classified service of the state. Qualifications, compensation and personnel practice relating to
the employees of the office of judges, other than the chief administrative law judge, shall be
governed by the provisions of the statutes, this code and rules and regulations of the classified
service pursuant to article six, chapter twenty-nine of this code. All such additional administrative
law judges shall be persons who have been admitted to the practice of law in this state and shall also
have had at least two years of experience as an attorney. The chief administrative law judge shall
supervise the other administrative law judges and other personnel which collectively shall be
referred to in this chapter as the office of judges.
(d) The administrative expense of the office of judges shall be included within the annual
budget of the workers' compensation division commission.
(e) Subject to the approval of the compensation programs performance council pursuant to
subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code, the The
office of judges shall, from time to time, promulgate rules of practice and procedure for the hearing
and determination of all objections to findings or orders of the workers' compensation division
pursuant to section one of this article commission. The office of judges shall not have the power
to initiate or to promulgate legislative rules as that phrase is defined in article three, chapter
twenty-nine-a of said this code. Any rules adopted pursuant to this section which are applicable to
the provisions of this article are not subject to sections nine through sixteen, inclusive, article three,
chapter twenty-nine-a of this code. The office of judges shall follow the remaining provisions of
said chapter for giving notice to the public of its actions and the holding of hearings or receiving of
comments on the rules.
(f) The chief administrative law judge shall continue to have has the power to hear and
determine all disputed claims in accordance with the provisions of this article, establish a procedure for the hearing of disputed claims, take oaths, examine witnesses, issue subpoenas, establish the
amount of witness fees, keep such records and make such reports as that are necessary for disputed
claims and exercise such any additional powers, including the delegation of such powers to
administrative law judges or hearing examiners as may be that are necessary for the proper conduct
of a system of administrative review of disputed claims. The chief administrative law judge shall
make such reports as may be that are requested of him or her by the compensation programs
performance council workers' compensation board of managers.
§23-5-9. Hearings on objections to commission or self-insured employer decisions; mediation;
remand.
(a) Objections to a decision of the workers' compensation division decision commission or
of a self-insured employer made pursuant to the provisions of section one of this article shall be filed
with the office of judges. Upon receipt of an objection, the office of judges shall notify the division
commission and all other parties of the filing of the objection. The office of judges shall establish
by rule promulgated in accordance with the provisions of subsection (e), section eight of this article
an adjudicatory process that enables parties to present evidence in support of their positions and
provides an expeditious resolution of the objection. The employer, the claimant and the division
commission shall be notified of any hearing at least ten days in advance.
(b) The office of judges shall establish a program for mediation to be conducted in
accordance with the requirements of rule twenty-five of the West Virginia trial court rules. The
parties may agree that the result of the mediation is binding. A case may be referred to mediation
by the administrative law judge on his or her own motion, on motion of a party or by agreement of
the parties. Upon issuance of an order for mediation, the office of judges shall assign a mediator
from a list of qualified mediators maintained by the West Virginia state bar.
__________(b)(c) The office of judges shall keep full and complete records of all proceedings concerning
a disputed claim. Subject to the rules of practice and procedure promulgated pursuant to section
eight of this article, the record upon which the matter shall be decided shall include any evidence
submitted by a party to the office of judges, evidence taken at hearings conducted by the office of
judges and any documents in the division's commission's claim files which relate to the subject
matter objected to of the objection. The record may include evidence or documents submitted in
electronic form or other appropriate medium in accordance with the rules of practice and procedure
referred to herein. The office of judges shall is not be bound by the usual common law or statutory
rules of evidence.
(c)(d) All hearings shall be conducted as determined by the chief administrative law judge
pursuant to the rules of practice and procedure promulgated pursuant to section eight of this article.
Upon consideration of the entire designated record, the chief administrative law judge or other
authorized adjudicator within the office of judges shall, based on the determination of the facts of
the case and applicable law, render a decision affirming, reversing or modifying the division's
commission's action. Said The decision shall contain findings of fact and conclusions of law and
shall be mailed to all parties.
(d)(e) The rule authorized by subsection (a) of this section shall be promulgated on or before
the first day of July September, one thousand nine hundred ninety-nine two thousand three. Until
the rule is finally promulgated, the prior provisions of this section as found in chapter two hundred
fifty-three of the acts of the Legislature, one thousand nine hundred ninety-five, shall remain in
effect any rules previously promulgated shall remain in full force and effect.
(f) The office of judges may remand a claim to the commission for further development of
the facts or administrative matters as, in the opinion of the administrative law judge, may be necessary for a full and complete disposition of the case. The administrative law judge shall
establish a time within which the commission must report back to the administrative law judge.
__________(g) The decision of the workers' compensation office of judges regarding any objections to
a decision of the workers' compensation commission or a self-insured employer is final, and benefits
shall be paid or denied in accordance with the decision unless the decision is subsequently appealed
and reversed in accordance with the procedures set forth in this article and in article one-b, chapter
fifty-one of this code.
§23-5-10. Appeal from administrative law judge decision to appeal board.
The employer, claimant or workers' compensation division commission may appeal to the
appeal board created in section eleven of this article for a review of a decision by an administrative
law judge. No appeal or review shall lie unless application therefor be made within thirty days of
receipt of notice of the administrative law judge's final action or in any event within sixty days of
the date of such final action, regardless of notice and, unless the application for appeal or review is
filed within the time specified, no such appeal or review shall be allowed, such time limitation being
hereby declared to be a condition of the right of such appeal or review and hence jurisdictional.
§23-5-10a. Appeal from administrative law judge decision to intermediate court of appeals.
(a) On and after the first day of January, two thousand four, a claimant, employer or the
workers' compensation commission may petition the intermediate court of appeals created pursuant
to article one-b, chapter fifty-one of this code, for review of a final decision of the workers'
compensation office of judges. The petition shall be filed in accordance with the procedural
requirements of this article and of article one-b, chapter fifty-one of this code and in the rules of the
intermediate court of appeals. No appeal shall be allowed unless the application therefor is made
within thirty days of receipt of the final decision of the office of judges, but in no event, regardless of notice, more than sixty days after the final decision, such time limitation being hereby declared
to be a condition of the right of such appeal or review and, hence, jurisdictional.
(b) The court may hear the appeal only if, in the discretion of the intermediate court of
appeals, it appears on the face of the petition that the decision of the office of judges is:
(1) The result of a violation of statutory or constitutional provisions or administrative rules
of the workers compensation commission or the office of judges;
(2) The result of erroneous conclusions of law;
(3) Beyond the statutory authority or jurisdiction of the office of judges;
(4) The result of unlawful procedures;
(5) Based on improper or unsupported findings of fact; or
(6) Arbitrary and capricious or characterized by abuse or unwarranted exercise of discretion.
§23-5-11. Workers' compensation appeal board-generally.
There shall continue to be a board to be known as the "Workers' Compensation Appeal
Board", which shall be referred to in this article as the "board", to be composed of three members.
The board shall perform the duties and responsibilities assigned to it by this code consistent with
the administrative policies developed by the governor and the commissioner executive director with
the assistance of the compensation programs performance council board of managers.
Two members of such board shall be of opposite politics to the third, and all three shall be
citizens of this state who have resided therein for a period of at least five years. All members of the
board shall be appointed by the governor and shall receive an annual salary in accordance with the
provisions of section two-a, article seven, chapter six of this code. The salaries shall be payable in
monthly installments, and the members shall also be entitled to all reasonable and necessary
traveling and other expenses actually incurred while engaged in the performance of their duties. The governor shall designate one of the members of the board as chairman thereof, and the board shall
meet at the capitol or at such other places throughout the state as it may consider proper at regular
sessions designated as "Appeal Board Hearing Days" commencing on the first Tuesday of every
month or the next regular business day, for a period of at least three days, for the purpose of
conducting hearings on appeals, and continuing as long as may be necessary for the proper and
expeditious transaction of the hearings, decisions and other business before it. All clerical services
required by the board shall be paid for by the commissioner executive director from any funds at his
or her disposal. The board shall, from time to time, compile and promulgate such rules of practice
and procedure as to it shall appear proper for the prompt and efficient discharge of its business and
such rules shall be submitted first to the compensation programs performance council board of
managers for its approval pursuant to subdivisions (b) and (c), section seven, article three, chapter
twenty-one-a of this code and, if so approved, then to the supreme court of appeals for approval, and
if approved by such court shall have the same force and effect as the approved rules of procedure
of circuit courts. By and with the consent of the commissioner executive director, the board shall
employ such clerical staff as may be necessary for the efficient conduct of its business. Salaries of
the board, and its employees, and all of its necessary operating expenses shall be paid from the
workers' compensation fund. The board shall submit its annual budget to the commissioner
executive director for inclusion as a separate item in the budget estimates prepared by him or her
annually and within the limits of such budget, all expenses of the board shall be by the requisition
of the commissioner executive director. Salaries of the employees of the board shall be governed
by the provisions of article six, chapter twenty-nine of this code.
The board shall report monthly to the compensation programs performance council on the
status of all claims on appeal. After the effective date of the amendment and reenactment of this section in the year two thousand three, the board shall report monthly to the board of managers on
the status of all claims on appeal.
§23-5-12. Appeal to board; procedure; remand and supplemental hearing.
(a) Any employer, employee, claimant or dependent, who shall feel aggrieved at any final
action of the administrative law judge taken after a hearing held in accordance with the provisions
of section nine of this article, shall have the right to appeal to the board created in section eleven of
this article for a review of such action. The workers' compensation division commission shall
likewise have the right to appeal to the appeal board any final action taken by the administrative law
judge. The aggrieved party shall file a written notice of appeal with the office of judges directed to
such board, within thirty days after receipt of notice of the action complained of, or in any event,
regardless of notice, within sixty days after the date of the action complained of, and unless the
notice of appeal is filed within the time specified, no such appeal shall be allowed, such time
limitation being hereby declared to be a condition of the right to such appeal and hence
jurisdictional; and the office of judges shall notify the other parties immediately upon the filing of
a notice of appeal. The office of judges shall forthwith make up a transcript of the proceedings
before the office of judges and certify and transmit the same to the board. Such certificate shall
incorporate a brief recital of the proceedings therein had and recite each order entered and the date
thereof.
(b) The board shall review the action of the administrative law judge complained of at its
next meeting after the filing of notice of appeal, provided such notice of appeal shall have been filed
thirty days before such meeting of the board, unless such review be postponed by agreement of
parties or by the board for good cause. The board shall set a time and place for the hearing of
arguments on each claim and shall notify the interested parties thereof, and briefs may be filed by the interested parties in accordance with the rules of procedure prescribed by the board. The board
may affirm the order or decision of the administrative law judge or remand the case for further
proceedings. It shall reverse, vacate or modify the order or decision of the administrative law judge
if the substantial rights of the petitioner or petitioners have been prejudiced because the
administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole
record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
(c) After a review of the case, the board shall sustain the finding of the administrative law
judge, in which case it need not make findings of fact or conclusions of law, or enter such order or
make such award as the administrative law judge should have made, stating in writing its reasons
therefor, and shall thereupon certify the same to the workers' compensation division commission
and chief administrative law judge, who shall proceed in accordance therewith.
(d) Instead of affirming, reversing or modifying the decision of the administrative law judge
as aforesaid, the board may, upon motion of any party or upon its own motion, for good cause
shown, to be set forth in the order of the board, remand the case to the chief administrative law judge
for the taking of such new, additional or further evidence as in the opinion of the board may be
necessary for a full and complete development of the facts of the case. In the event the board shall remand the case to the chief administrative law judge for the taking of further evidence therein, the
administrative law judge shall proceed to take such new, additional or further evidence in
accordance with any instruction given by the board, and shall take the same within thirty days after
receipt of the order remanding the case, giving to the interested parties at least ten days' written
notice of such supplemental hearing, unless the taking of evidence shall be postponed by agreement
of parties, or by the administrative law judge for good cause. After the completion of such
supplemental hearing, the administrative law judge shall, within sixty days, render his or her
decision affirming, reversing or modifying the former action of the administrative law judge, which
decision shall be appealable to, and proceeded with by the appeal board in like manner as in the first
instance. In addition, upon a finding of good cause, the board may remand the case to the workers'
compensation division commission for further development. Any decision made by the division
commission following such a remand shall be subject to objection to the office of judges and not to
the board. The board may remand any case as often as in its opinion is necessary for a full
development and just decision of the case. All appeals from the action of the administrative law
judge shall be decided by the board at the same session at which they are heard, unless good cause
for delay thereof be shown and entered of record. In all proceedings before the board, any party may
be represented by counsel.
§23-5-15. Appeals from final decisions of board to supreme court of appeals; procedure;
costs.
From any final decision of the board, including any order of remand, an application for
Before the first day of January, two thousand four, review of any final decision of the board,
including any order of remand, may be prosecuted by either party or by the workers' compensation
division commission to the supreme court of appeals within thirty days from the date thereof of the final order by the filing of a petition therefor to such with the court against the board and the adverse
party or parties as respondents, and unless . Unless the petition for review is filed within such the
thirty-day period, no such appeal or review shall be allowed, such time limitation being hereby
declared to be a condition of the right to such appeal or review and hence jurisdictional; and the.
The clerk of such the supreme court of appeals shall notify each of the respondents and the workers'
compensation division commission of the filing of such petition. The board shall, within ten days
after receipt of such notice, file with the clerk of the court the record of the proceedings had before
it, including all the evidence. The court or any judge thereof in vacation may thereupon determine
whether or not a review shall be granted. And if granted to a nonresident of this state, he or she shall
be required to execute and file with the clerk before such order or review shall become effective,
a bond, with security to be approved by the clerk, conditioned to perform any judgment which may
be awarded against him or her thereon. The board may certify to the court and request its decision
of any question of law arising upon the record, and withhold its further proceeding in the case,
pending the decision of court on the certified question, or until notice that the court has declined to
docket the same. If a review be granted or the certified question be docketed for hearing, the clerk
shall notify the board and the parties litigant or their attorneys and the workers' compensation
division, commission of that fact by mail. If a review be granted or the certified question docketed,
the case shall be heard by the court in the same manner as in other cases, except that neither the
record nor briefs need be printed. Every such review granted or certified question docketed prior
to thirty days before the beginning of the term, shall be placed upon the docket for such term. The
attorney general shall, without extra compensation, represent the board in such cases. The court
shall determine the matter so brought before it and certify its decision to the board and to the
division. The cost of such proceedings on petition, including a reasonable attorney's fee, not exceeding thirty dollars to the claimant's attorney, shall be fixed by the court and taxed against the
employer if the latter be unsuccessful, and if the claimant, or the division commission (in case the
latter be the applicant for review) be unsuccessful, such costs, not including attorney's fees, shall
be taxed against the division commission, payable out of the workers' compensation fund, or shall
be taxed against the claimant, in the discretion of the court. But there shall be no cost taxed upon
a certified question.
§23-5-15a. Appeals from final decisions of the intermediate court of appeals to the supreme
court of appeals.
On and after the first day of January, two thousand four, either party or the workers'
compensation commission may request review of any final decision of the intermediate court of
appeals created pursuant to article one-b, chapter fifty-one of this code, including any order of
remand, by filing a petition for appeal against the office of judges and the adverse party with the
supreme court of appeals in accordance with the procedures set forth in rule thirteen-a of the West
Virginia Rules of Appellate Procedure. Any petition for appeal must be filed with the clerk of the
supreme court of appeals.
§23-5-17. Termination of office of judges.
The office of judges shall terminate terminates on the first day of July, two thousand three
nine, pursuant to the provisions of article ten, chapter four of this code unless sooner terminated,
continued or reestablished pursuant to the provisions of that said article.
§23-5-18. Workers' compensation appeal board termination.
Pursuant to the provisions of article ten, chapter four of this code, the workers' compensation
appeal board shall continue to exist until the first day of July, two thousand three, unless sooner
terminated, continued or reestablished by act of the Legislature. After the thirty-first day of December, two thousand three, the workers' compensation appeal board shall be terminated, the
provisions of sections ten, eleven, twelve, fourteen and fifteen of this article shall be of no further
force and effect, and all matters pending before the appeal board on the thirty-first day of December,
two thousand three shall be transferred to the intermediate court of appeals created in article one-b,
chapter fifty-one of this code.
CHAPTER 26. STATE BENEVOLENT INSTITUTIONS.
ARTICLE 8. EMERGENCY HOSPITALS.
§26-8-2. Patients; expenses; disposition of receipts.
The state commissioner of public institutions department of health and human resources shall
admit to said the hospitals, under its rules and regulations, persons requiring hospital care and shall
treat free of charge persons accidentally injured in this state while engaged in their usual
employment, but preference at all times shall be given to persons accidentally injured: Provided,
That the commissioner of the bureau of employment programs executive director of the workers'
compensation commission shall pay to said the hospitals for the treatment of anyone entitled to
benefits or aid out of the workers' compensation fund the same fee or expenses as that would be paid
to a private hospital for similar treatment. All moneys collected under this section shall be paid into
the state treasury through the state commissioner of public institutions as required in section thirteen,
article one, chapter twenty-five of this code.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-125. Employment and income reporting.
(a) For purposes of this section:
(1) "Employee" means an individual who is an "employee" for purposes of federal income tax withholding, as defined in 26 U. S. C. §3401;
(2) "Employer" means the person or entity for whom an individual performs or performed
any service of whatever nature and who has control of the payment of the individual's wages for
performance of such the service or services, as defined in 26 U. S. C. §3401;
(3) An individual is considered a "new hire" on the first day in which that individual
performs services for remuneration and on which an employer begins to withhold amounts for
income tax purposes.
(b) Except as provided in subsections (c) and (d) of this section, all employers doing business
in the state shall report to the bureau for child support enforcement:
(1) The hiring of any person who resides or works in this state to whom the employer
anticipates paying earnings; and
(2) The rehiring or return to work of any employee who resides or works in this state.
(c) Employers are not required to report the hiring, rehiring or return to work of any person
who is an employee of a federal or state agency performing intelligence or counterintelligence
functions if the head of such the agency has determined that reporting could endanger the safety of
the employee or compromise an ongoing investigation or intelligence mission.
(d) An employer that has employees in states other than this state and that transmits reports
magnetically or electronically is not required to report to the bureau for child support enforcement
the hiring, rehiring or return to work of any employee if the employer has filed with the secretary
of the federal department of health and human services, as required by 42 U. S. C. §653A, a written
designation of another state in which it has employees as the reporting state.
(e) Employers shall report by mailing to the bureau for child support enforcement a copy of
the employee's W-4 form; however, an employer may transmit such the information through another means if approved in writing by the bureau for child support enforcement prior to the transmittal.
The report shall include the employee's name, address and social security number, the employer's
name and address, any different address of the payroll office and the employer's federal tax
identification number. The employer may report other information, such as date of birth or income
information, if desired.
(f) Employers shall submit a report within fourteen days of the date of the hiring, rehiring
or return to work of the employee. However, if the employer transmits the reports magnetically or
electronically by two monthly submissions, the reports shall be submitted not less than twelve days
nor more than sixteen days apart.
(g) An employer shall provide to the bureau for child support enforcement, upon its written
request, information regarding an obligor's employment, wages or salary, medical insurance, start
date and location of employment.
(h) Any employer who fails to report in accordance with the provisions of this section shall
be assessed a civil penalty of no more than twenty-five dollars per failure. If the failure to report
is the result of a conspiracy between the employer and the employee not to supply the required
report or to supply a false or incomplete report, the employer shall be assessed a civil penalty of no
more than five hundred dollars.
(i) Employers required to report under this section may assess each employee so reported
one dollar for the administrative costs of reporting.
(j) Uses for the new hire information include, but are not limited to, the following:
(1) The state directory of new hires shall furnish the information to the national directory of
new hires;
(2) The bureau for child support enforcement shall use information received pursuant to this section to locate individuals for purposes of establishing paternity and of establishing, modifying
and enforcing child support obligations and may disclose such the information to any agent of the
agency that is under contract with the bureau to carry out such those purposes;
(3) State agencies responsible for administering a program specified in 42 U. S. C. §1320b-
7(b) shall have access to information reported by employers for purposes of verifying eligibility for
the program; and
(4) The bureau of employment programs and the workers' compensation commission shall
have access to information reported by employers for purposes of administering employment
security and workers' compensation programs.
§48-18-131. Access to records, confidentiality.
(a) All records in the possession of the bureau for child support enforcement, including
records concerning an individual case of child or spousal support, shall be kept is confidential and
shall not be released except as provided below follows:
(1) Records shall be disclosed or withheld as required by federal law or regulations
promulgated thereunder notwithstanding other provisions of this section.
(2) Information as to the whereabouts of a party or the child shall not be released to a person
against whom a protective order has been entered with respect to such that party or child or where
the state has reason to believe that the release of the information to the person making the request
may result in physical or emotional harm to the party or the child.
(3) The phone number, address, employer and other information regarding the location of
the obligor, the obligee and the child shall only be disclosed: (A) Upon his or her written consent,
to the person whom the consent designates; or (B) notwithstanding subdivision (4) of this
subsection, to the obligee, the obligor, the child or the caretaker or representative of the child, upon order of a court if the court finds that the disclosure is for a bona fide purpose, is not contrary to the
best interest of a child and does not compromise the safety of any party: Provided, That the identity
and location of the employer may be disclosed on the letters, notices and pleadings of the bureau
as necessary and convenient for the determination of support amounts and the establishment,
investigation, modification, enforcement, collection and distribution of support.
(4) Information and records other than the phone number, address, employer and information
regarding the location of the obligor, the obligee and the child shall be disclosed to the obligor, the
obligee, the child or the caretaker of the child or his or her duly authorized representative, upon his
or her written request: Provided, That when the obligor requests records other than collection and
distribution records, financial records relevant to the determination of the amount of support
pursuant to the guidelines, or records the obligor has supplied, the bureau shall mail a notice by first-
class mail to the last known address of the obligee notifying him or her of the request. The notice
shall advise the obligee of his or her right to object to the release of records on the grounds that the
records are not relevant to the determination of the amount of support or the establishment,
modification, enforcement, collection or distribution of support. The notice shall also advise the
obligee of his or her right to disclosure of records provided in this section in order to determine what
records the bureau for child support enforcement may have. In the event of any objection, the
bureau shall determine whether or not the information shall be released.
(5) Information in specific cases may be released as is necessary or to determine the identity,
location, employment, income and assets of an obligor.
(6) Information and records may be disclosed to the bureau of vital statistics, bureau of
employment programs, the workers' compensation division commission, state tax department and
the internal revenue service, or other state or federal agencies or departments as may be that are necessary or desirable in obtaining any address, employment, wage or benefit information for the
purpose of determining the amount of support or establishing, enforcing, collecting and distributing
support.
(b) Any person who willfully violates this section shall be is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand
dollars, or confined in the county or regional jail not more than six months, or both fined and
imprisoned confined.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 1B. INTERMEDIATE COURT OF APPEALS.
§51-1B-1. Intermediate court of appeals; jurisdiction; initial appointment; salary.
(a) There is hereby created the West Virginia intermediate court of appeals which shall
consist of three judges, any two of whom constitute a quorum.
(b) The intermediate court of appeals shall exercise exclusive jurisdiction over all appeals
from the workers' compensation office of judges filed after the thirty-first day of December, two
thousand three, and over all matters transferred to it pursuant to section eighteen, article five, chapter
twenty-three of this code. The supreme court of appeals may, in its discretion, transfer to the
intermediate court of appeals for consideration and decision in accordance with the provisions of
this article, any appeals filed with the supreme court of appeals prior to the thirty-first day of
December, two thousand three.
(c) The governor shall appoint, with the advice and consent of the Senate, three qualified
attorneys to serve five-year terms as judges of the intermediate court of appeals. No more than two
of the judges may be from the same political party.
(d) The initial appointees shall serve until confirmed by the Senate. If the Senate does not confirm an appointee the governor shall forthwith submit the name of another qualified appointee
for consideration by the Senate. The initial appointments shall be made no later than the thirty-first
day of December, two thousand three. Should a vacancy occur, the governor shall, within thirty
days of vacation of the position, appoint a new judge to fill the unexpired term.
(e) The salary of each of the judges of the intermediate court of appeals is ninety-two
thousand dollars per year.
§51-1B-2. Qualifications.
(a) A judge of the intermediate court of appeals must, at the time he or she takes office, and
thereafter during his or her continuance in office, be a resident of this state, be a member in good
standing of the West Virginia state bar, have a minimum of ten years' experience as an attorney
admitted to practice law in this state prior to appointment, and have a minimum of five years'
experience in preparing and presenting cases or hearing actions and making decisions on the basis
of the record of those hearings before administrative agencies, regulatory bodies or courts of record
at the federal, state or local level.
(b) No judge of the intermediate court of appeals may hold any other office, or accept any
appointment or public trust, nor may he or she become a candidate for any elective public office or
nomination thereto, except a judicial office. Violation of this subsection requires the judge to vacate
his or her office. No judge of an intermediate court of appeals may engage in the practice of law
during his or her term of office.
§51-1B-3. Chief judge.
The court shall designate one of its judges in rotation to be chief judge of the court for as
long as the court may determine by order made and entered of record. In the absence of the chief
judge, any other judge designated by the judges present shall act as chief judge.
§51-1B-4. Regular terms of court.
Two terms of the intermediate court of appeals shall be held every year at Charleston, in
Kanawha County, the first commencing on the second Tuesday in January and ending on the thirty-
first day of July, the second on the first Wednesday in September and ending on the fifteenth day
of December. The intermediate court of appeals shall, from time to time, hold hearings in other
counties of the state as the court finds appropriate.
§51-1B-5. Location.
The intermediate court of appeals shall be located in the same facility as or in reasonable
proximity, within the city of Charleston, to the West Virginia supreme court of appeals.
§51-1B-6. Regulation of pleading, practice and procedure.
The supreme court of appeals shall make general rules regarding the pleading, including the
form of the petition and any responsive pleadings, practice and procedure to be used by the
intermediate court of appeals.
§51-1B-7. Rejection, remand or allowance of appeal.
Upon its initial review of the petition, the intermediate court of appeals may reject the appeal
or allow the appeal to be heard. If the petition is rejected by the intermediate court of appeals, no
other petition for appeal from the decision or order of the office of judges shall be permitted. If the
petition is granted, the court shall immediately notify the petitioner, the respondents, the office of
judges and the workers' compensation commission of its decision and may schedule the filing of
written briefs and a time for hearing oral arguments, if necessary, by the parties in accordance with
the rules of the court.
§51-1B-8. Decisions.
(a) In all cases before it, the intermediate court of appeals shall consider the record, the legal briefs of the parties and, when the court considers it necessary, the oral arguments of the parties
prior to rendering a decision.
(b) The court may affirm or reverse the order or decision of the office of judges or remand
the case for further proceedings.
(c) Any decision reversing, remanding or affirming a decision of the office of judges must
set forth the reasons therefor, including the court's findings of fact and the legal precedents and
conclusions supporting the decision.
§51-1B-9. Adjournment.
The court may, at any regular or special term, adjourn from day to day or from time to time,
as the court may order, until its close.
§51-1B-10. Clerk; deputy; other assistants and employees; compensation; expenses.
The intermediate court of appeals, or the judges thereof in vacation, may with the approval
of the supreme court of appeals appoint a clerk, who shall give bond as required by article two,
chapter six of this code. The intermediate court of appeals, or the judges thereof in vacation, may
with the approval of the supreme court of appeals appoint one deputy clerk, and other full-time and
part-time assistants and clerical employees necessary to perform properly the functions and duties
of the office of the clerk. The annual compensation of the clerk shall be fixed by the supreme court
of appeals. The clerk and other employees shall serve at the will and pleasure of the court.
Vacancies in the office of the clerk which occur during vacation may be filled by appointment, in
writing, made by a majority of the judges of the court. The administrative and other operating
expenses of the intermediate court of appeals shall be determined and provided by the supreme court
of appeals.
§51-1B-11. Duties of clerk.
It is the duty of the clerk of the intermediate court of appeals to attend in person, or by
deputy, all the sessions of the court, to obey its orders and directions during term and in vacation,
to take care of and preserve in an office, kept for the purpose, all records and papers of the court,
and to perform other duties as prescribed by law or required of him or her by the court.
§51-1B-12. Appeals to the supreme court of appeals.
(a) Either party or the workers' compensation commission may file a petition for an appeal
from a final order of the intermediate court of appeals with the supreme court of appeals within
thirty days of the entry of the order. This time limitation is a condition of the right to appeal and,
hence, jurisdictional, and unless the petition for review is filed within the thirty-day period, no
appeal or review shall be allowed. The clerk of the supreme court of appeals shall notify each of
the respondents, the workers' compensation commission, and the clerk of the intermediate court of
appeals of the filing of the petition. The clerk of the intermediate court of appeals shall, within ten
days after receipt of the notice, file the record, including all the evidence, with the clerk of the
supreme court of appeals. If a review is granted to a nonresident of this state, he or she shall, before
the order or review becomes effective, execute and file with the clerk of the supreme court of
appeals a bond, with security to be approved by the clerk, conditioned to perform any judgment
which may be awarded against him or her thereon. A petition for appeal shall be filed in the office
of the clerk of the supreme court of appeals in accordance with the rules of appellate procedure.
(b) No petition for appeal to the supreme court of appeals shall lie from a decision of the
intermediate court of appeals rejecting the petition pursuant to section seven of this article.
(c) In reviewing a decision of the intermediate court of appeals, the supreme court of appeals
shall consider the record provided by the intermediate court of appeals. The decision of the
intermediate court of appeals may be reversed or modified by the supreme court of appeals only if the lower court's findings of fact are not supported by any evidence in the record or the decision is
in clear violation of constitutional or statutory provisions or clearly the result of erroneous
conclusions of law.
§51-1B-13. Termination of intermediate court of appeals.
(a) The intermediate court of appeals and the provisions of this article shall be of no further
force and effect after the thirty-first day of December, two thousand eight.
(b) The termination of the provisions of this article as specified in this section is intended
to provide an opportunity to evaluate the intermediate court of appeals, its structure and operation,
the advisability of requiring the election of its judges, the desirability of expanding its jurisdiction,
and other related matters. The Legislature finds that it would be most beneficial, for purposes of
accomplishing this evaluation, to consider any report or recommendations of the supreme court of
appeals if available on or before the thirty-first day of December, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-24e. Omission to subscribe to the workers' compensation fund; failure to file a
premium tax report or pay premium taxes; false testimony or statements; failure to file
reports; penalties; asset forfeiture; venue.
(1) Failure to subscribe:
(A) Responsible person. Any person who individually or as owner, partner, president, other
officer, or manager of a sole proprietorship, firm, partnership, company, corporation or association,
who, as a person who is responsible for and who is required by specific assignment, duty or legal
duty, which is either expressed or inherent in laws which require the employer's principals to be
informed and to know the facts and laws affecting the business organization and to make internal policy and decisions which ensure that the individual and organization comply with the general laws
and provisions of chapter twenty-three of this code, knowingly and willfully fails to subscribe to the
workers' compensation fund shall be guilty of a felony and, upon conviction, shall be imprisoned
in the penitentiary a state correctional facility not less than one nor more than ten years, or in the
discretion of the court, be confined in a county or regional jail not more than one year and shall be
fined not more than two thousand five hundred dollars.
(B) Any corporation, association or partnership who, as an employer as defined in chapter
twenty-three of this code, knowingly and willfully fails to subscribe to the workers' compensation
fund shall be guilty of a felony and, upon conviction, shall be fined not less than two thousand five
hundred dollars nor more than ten thousand dollars.
(2) Failure to pay:
(A) Any person who individually or as owner, partner, president, other officer or manager
of a sole proprietorship, firm, partnership, company, corporation or association, who, as a
responsible person as defined in section twenty-four-e of this article, knowingly and willfully fails
to make premium tax payments to the workers' compensation fund as required by chapter
twenty-three of this code, shall be guilty of the larceny of the premium owed and, if the amount is
one thousand dollars or more, such person shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary a state correctional facility not less than one nor more than
ten years or, in the discretion of the court, be confined in a county or regional jail not more than one
year and shall be fined not more than two thousand five hundred dollars. If the amount is less than
one thousand dollars, such person shall be guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for a term not to exceed one year or fined an amount
not to exceed two thousand five hundred dollars, or both, in the discretion of the court.
(B) Any corporation, association, company or partnership which, as an employer as defined
in chapter twenty-three of this code, knowingly and willfully fails to make premium tax payments
to the workers' compensation fund as required by chapter twenty-three of this code shall be guilty
of the larceny of the premium owed, and, if the amount is one thousand dollars or more, such
corporation, association, company or partnership shall be guilty of a felony and, upon conviction
thereof, shall be fined not less than two thousand five hundred dollars nor more than ten thousand
dollars. If the amount is less than one thousand dollars, such corporation, association, company or
partnership shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount
not to exceed two thousand five hundred dollars.
(C) Any person who individually or as owner, partner, president, other officer, or manager
of a sole proprietorship, firm, partnership, company, corporation or association, who, as a
responsible person, as defined in section twenty-four-e of this article, knowingly and willfully and
with fraudulent intent sells, transfers or otherwise disposes of substantially all of the employer's
assets for the purpose of evading the payment of workers' compensation premium taxes to the
workers' compensation fund as required by chapter twenty-three of this code, shall be guilty of the
larceny of the premium owed and, if the amount is one thousand dollars or more, such person shall
be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility
not less than one nor more than ten years or, in the discretion of the court, be confined in a county
or regional jail not more than one year and shall be fined not more than two thousand five hundred
dollars. If the amount is less than one thousand dollars, such person shall be guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a term
not to exceed one year or fined an amount not to exceed two thousand five hundred dollars, or both,
in the discretion of the court.
(D) Any corporation, association, company or partnership which, as an employer as defined
in chapter twenty-three of this code, knowingly and willfully and with fraudulent intent sells,
transfers or otherwise disposes of substantially all of the employer's assets for the purpose of
evading the payment of workers' compensation premium taxes to the workers' compensation fund
as required by chapter twenty-three of this code shall be guilty of the larceny of the premium owed,
and, if the amount is one thousand dollars or more, such corporation, association, company or
partnership shall be guilty of a felony and, upon conviction thereof, shall be fined not less than two
thousand five hundred dollars nor more than ten thousand dollars. If the amount is less than one
thousand dollars, such corporation, association, company or partnership shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed two thousand
five hundred dollars.
(3) Failure to file premium tax reports:
(A) Any person who individually or as owner, partner, president, other officer, or manager
of a sole proprietorship, firm, partnership, company, corporation or association, who, as a
responsible person as defined in section twenty-four-e of this article, knowingly and willfully fails
to file a premium tax report with the workers' compensation fund as required by chapter
twenty-three of this code, shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility not less than one nor more than ten years,
or in the discretion of the court, be confined in a county or regional jail for a term not to exceed one
year and shall be fined not more than two thousand five hundred dollars.
(B) Any corporation, association, company or partnership which, as an employer as defined
in chapter twenty-three of this code, knowingly and willfully fails to file a premium tax report with
the workers' compensation fund as required by chapter twenty-three of this code, shall be guilty of a felony and, upon conviction thereof, shall be fined not less than two thousand five hundred dollars
nor more than ten thousand dollars.
(4) Failure to file other reports:
(A) Any person, individually or as owner, partner, president or other officer, or manager of
a sole proprietorship, firm, partnership, company, corporation or association who, as a responsible
person as defined in section twenty-four-e of this article, knowingly and willfully fails to file any
report, other than a premium tax report, required by such chapter shall be guilty of a misdemeanor
and, upon conviction thereof, shall be confined in a county or regional jail for a term not to exceed
one year or fined an amount not to exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(B) Any corporation, association, company or partnership which, as an employer as defined
in chapter twenty-three of this code, knowingly and willfully fails to file any report, other than a
premium tax report, with the workers' compensation fund as required by chapter twenty-three of this
code, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not
to exceed two thousand five hundred dollars.
(5) False testimony or statements:
Any person, individually or as owner, partner, president, other officer, or manager of a sole
proprietorship, firm, partnership, company, corporation or association who, as a responsible person
as defined in section twenty-four-e of this article, knowingly and willfully makes a false report or
statement under oath, affidavit, certification or by any other means respecting any information
required to be provided under chapter twenty-three of this code shall be guilty of a felony and, upon
conviction thereof, shall be confined in the penitentiary a state correctional facility for a definite
term of imprisonment which is not less than one year nor more than three years or fined not less than one thousand dollars nor more than ten thousand dollars, or both, in the discretion of the court. In
addition to any other penalty imposed, the court shall order any defendant convicted under this
section to make full restitution of all moneys paid by or due to the workers' compensation fund as
the result of a violation of this section. The restitution ordered shall constitute a judgment against
the defendant and in favor of the state of West Virginia workers' compensation commission.
(6) Asset forfeiture:
(A) The court, in imposing sentence on a person or entity convicted of an offense under this
section, shall order the person or entity to forfeit property, real or personal, that constitutes or is
derived, directly or indirectly, from gross proceeds traceable to the commission of the offense. Any
person or entity convicted under this section shall pay the costs of asset forfeiture.
(B) For purposes of paragraph (6) (A), the term "payment of the costs of asset forfeiture"
means:
(i) The payment of any expenses necessary to seize, detain, inventory, safeguard, maintain,
advertise, sell or dispose of property under seizure, detention, forfeiture or of any other necessary
expenses incident to the seizure, detention, forfeiture, or disposal of such property, including
payment for:
(a)(I) Contract services;
(b)(II) The employment of outside contractors to operate and manage properties or provide
other specialized services necessary to dispose of such properties in an effort to maximize the return
from such properties; and
(c)(III) Reimbursement of any state or local agency for any expenditures made to perform
the functions described in this subparagraph;
(ii) The compromise and payment of valid liens and mortgages against property that has been forfeited, subject to the discretion of the workers' compensation fund to determine the validity of
any such lien or mortgage and the amount of payment to be made, and the employment of attorneys
and other personnel skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or mitigation procedures relating to
property forfeited; and
(iv) The payment of state and local property taxes on forfeited real property that accrued
between the date of the violation giving rise to the forfeiture and the date of the forfeiture order.
(7) Venue:
Venue for prosecution of any violation of this section shall be either the county in which the
defendant's principal business operations are located or in Kanawha County where the workers'
compensation fund is located.
§61-3-24f. Wrongfully seeking workers' compensation; false
testimony or statements; penalties; venue.
(1) Any person who shall knowingly and with fraudulent intent secure or attempt to secure
compensation from the workers' compensation fund or from a self-insured employer:
(A) That is larger in amount than that to which he or she is entitled; or
(B) That is longer in term than that to which he or she is entitled; or
(C) To which he or she is not entitled, shall be guilty of a larceny and, if the amount is one
thousand dollars or more, such person shall be guilty of a felony and, upon conviction thereof, shall
be imprisoned in the penitentiary a state correctional facility not less than one nor more than ten
years or, in the discretion of the court, be confined in a county or regional jail not more than one
year and shall be fined not more than two thousand five hundred dollars. If the amount is less than one thousand dollars, such person shall be guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for a term not to exceed one year or fined an amount
not to exceed two thousand five hundred dollars, or both, in the discretion of the court.
(2) Any person who shall knowingly and willfully make a false report or statement under
oath, affidavit, certification or by any other means respecting any information required to be
provided under chapter twenty-three of this code shall be guilty of a felony and, upon conviction
thereof, shall be confined in the penitentiary a state correctional facility for a definite term of
imprisonment which is not less than one year nor more than three years or fined not less than one
thousand dollars nor more than ten thousand dollars, or both, in the discretion of the court.
(3) In addition to any other penalty imposed, the court shall order any person convicted under
this section to make full restitution of all moneys paid by the workers' compensation fund or self-
insured employer as the result of a violation of this section. The restitution ordered shall constitute
a judgment against the defendant and in favor of the state of West Virginia workers' compensation
commission or self-insured employer.
(4) If the person so convicted is receiving compensation from such fund or employer, he or
she shall, from and after such conviction, cease to receive such compensation as a result of that any
alleged injury or disease.
(5) Venue for prosecution of any violation of this section shall either be the county in which
the claimant resides, the county in which the claimant is employed or working, or in Kanawha
County where the workers' compensation fund is located.
§61-3-24g. Workers' compensation health care offenses; fraud; theft or embezzlement; false
statements; penalties; notice; prohibition against providing future services; penalties;
asset forfeiture; venue.
(1) Any person who knowingly and willfully executes, or attempts to execute, a scheme or
artifice:
(A) To defraud the workers' compensation fund or a self-insured employer in connection
with the delivery of or payment for workers' compensation health care benefits, items or services;
or
(B) To obtain, by means of false or fraudulent pretenses, representations, or promises any
of the money or property owned by or under the custody or control of the workers' compensation
fund or a self-insured employer in connection with the delivery of or payment for workers'
compensation health care benefits, items or services; or
(C) To make any charge or charges against any injured employee or any other person, firm
or corporation which would result in a total charge for the treatment or service rendered in excess
of the maximum amount set forth therefore in the workers' compensation division's commission's
schedule of maximum reasonable amounts to be paid for such the treatment or services issued
pursuant to subsection (a), section three, article four, chapter twenty-three of this code shall be is
guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary a state
correctional facility not less than one year nor more than ten years or, in the discretion of the court,
be confined in a county or regional jail not more than one year and shall be fined not more than two
thousand five hundred dollars.
(2) Any person who, in any matter involving a health care program related to the workers'
compensation fund, knowingly and willfully:
(A) Falsifies, conceals or covers up by any trick, scheme or device a material fact; or
(B) Makes any materially false, fictitious or fraudulent statement or representation, or makes
or uses any materially false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry, shall be is guilty of a felony and, upon conviction thereof,
shall be confined in the penitentiary a state correctional facility for a definite term of imprisonment
which is not less than one year nor more than three years or fined not less than one thousand dollars
nor more than ten thousand dollars, or both, in the discretion of the court.
(3) Any person who willfully embezzles, steals or otherwise unlawfully converts to the use
of any person other than the rightful owner, or intentionally misapplies any of the moneys, funds,
securities, premiums, credits, property or other assets of a health care program related to the
workers' compensation fund, shall be is guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility for not less than one year nor more than
ten years or fined not less than ten thousand dollars, or both, in the discretion of the court.
(4) Any health care provider who fails, in violation of subsection subdivision (5) of this
section to post a notice, in the form required by the workers' compensation division commission,
in the provider's public waiting area that the provider cannot accept any patient whose treatment or
other services or supplies would ordinarily be paid for from the workers' compensation fund or by
a self-insured employer unless such the patient consents, in writing, prior to the provision of such
the treatment or other services or supplies, to make payment for that treatment or other services or
supplies himself or herself, shall be is guilty of a misdemeanor and, upon conviction thereof, shall
be fined one thousand dollars.
(5) Any person convicted under the provisions of this section shall, from and after such
conviction, be barred from providing future services or supplies to injured employees for the
purposes of workers' compensation and shall cease to receive payment for such services or supplies.
In addition to any other penalty imposed, the court shall order any defendant convicted under this
section to make full restitution of all moneys paid by or due to the workers' compensation fund as the result of a violation of this section. The restitution ordered shall constitute a judgment against
the defendant and in favor of the state of West Virginia workers' compensation commission.
(6)(A) The court, in imposing sentence on a person convicted of an offense under this
section, shall order the person to forfeit property, real or personal, that constitutes or is derived,
directly or indirectly, from gross proceeds traceable to the commission of the offense. Any person
convicted under this section shall pay the costs of asset forfeiture.
(B) For purposes of paragraph (6)(A) of this section subdivision, the term "payment of the
costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain, inventory, safeguard, maintain,
advertise, sell or dispose of property under seizure, detention or forfeiture, or of any other necessary
expenses incident to the seizure, detention, forfeiture or disposal of such the property, including
payment for:
(a)(I) Contract services;
(b)(II) The employment of outside contractors to operate and manage properties or provide
other specialized services necessary to dispose of such the properties in an effort to maximize the
return from such the properties; and
(c)(III) Reimbursement of any state or local agency for any expenditures made to perform
the functions described in this subparagraph;
(ii) The compromise and payment of valid liens and mortgages against property that has been
forfeited, subject to the discretion of the workers' compensation fund to determine the validity of
any such the lien or mortgage and the amount of payment to be made, and the employment of
attorneys and other personnel skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on forfeited real property that accrued
between the date of the violation giving rise to the forfeiture and the date of the forfeiture order.
(7) Venue for prosecution of any violation of this subsection section shall be either the
county in which the defendant's principal business operations are located or in Kanawha County
where the workers' compensation fund is located.
And,
On page one, by amending the title to read as follows:
H. B. 200-"A Bill to repeal sections one, two, three, four, five, six and seven, article three,
chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as
amended; to repeal section five-b, article two, chapter twenty-three of said code; to repeal section
seven, article four-a of said chapter; to amend and reenact section thirty-three-d, article three,
chapter five-a of said code; to amend and reenact sections four and five, article three, chapter five-b
of said code; to amend and reenact section one, article two, chapter five-f of said code; to amend and
reenact section seven, article twelve, chapter eleven of said code; to amend and reenact section four,
article one-a, chapter twelve of said code; to amend and reenact section six, article six of said
chapter; to amend and reenact section ten, article two, chapter fifteen of said code; to amend and
reenact section fifteen, article one, chapter sixteen of said code; to amend and reenact section three,
article twenty-nine-d of said chapter; to amend and reenact section three, article thirty-six of said
chapter; to amend and reenact section twenty-six, article nine-a, chapter eighteen of said code; to
amend and reenact section twelve-a, article ten-a of said chapter; to amend and reenact section two,
article ten-k of said chapter; to amend and reenact section three, article three-a, chapter twenty-one
of said code; to amend and reenact section four, article one, chapter twenty-one-a of said code; to amend and reenact sections six, six-c and thirteen, article two of said chapter; to amend and reenact
section eleven, article ten of said chapter; to amend and reenact section eight, article three, chapter
twenty-two of said code; to amend and reenact sections one, two, three, four, five, six, seven, eight,
nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen and eighteen, article one, chapter
twenty-three of said code; to further amend said article by adding thereto eight new sections,
designated sections one-a, one-b, one-c, one-d, one-e, one-f, four-a and nineteen; to amend and
reenact sections one, one-c, one-d, two, three, four, five, five-a, five-c, five-d, six, nine, ten, eleven,
twelve, thirteen, fourteen, fifteen, sixteen and seventeen, article two of said chapter; to amend and
reenact section one, article two-a of said chapter; to amend and reenact sections one, two and three,
article two-b of said chapter; to amend and reenact sections one, one-a, two, three and five, article
three of said chapter; to further amend said article by adding thereto one new section, designated
section six; to amend and reenact sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b,
three-c, four, five, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c,
nine, nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen,
eighteen, twenty, twenty-two, twenty-three, twenty-four and twenty-five, article four of said chapter;
to further amend said article by adding thereto a new section, designated section one-g; to amend
and reenact sections one, three, five, six and eight, article four-a of said chapter; to amend and
reenact sections two, five, six and seven, article four-b of said chapter; to further amend said article
by adding thereto a new section, designated section eight-b; to amend and reenact sections two,
three, four and five, article four-c of said chapter; to amend and reenact sections one, two, three,
four, five, six, seven, eight, nine, ten, eleven, twelve, fifteen, seventeen and eighteen, article five of
said chapter; to further amend said article by adding thereto two new sections, designated sections
ten-a and fifteen-a; to amend and reenact section two, article eight, chapter twenty-six of said code; to amend and reenact sections one hundred twenty-five and one hundred thirty-one, article eighteen,
chapter forty-eight of said code; to amend chapter fifty-one by adding thereto a new article,
designated article one-b; and to amend and reenact sections twenty-four-e, twenty-four-f and twenty-
four-g, article three, chapter sixty-one of said code, all relating to workers' compensation generally."
Mr. Speaker, Mr. Kiss, and Delegate Staton, offered the following amendment to the
amendment:
On page sixty, section one-a, line seven, following the words "no more than", by striking out
the word "two" and inserting in lieu thereof the word "three".
On page sixty-one, section one-a, line twenty-seven, following the words "not more than",
by striking out the words "five hundred" and inserting in lieu thereof the words "three hundred
fifty".
On page sixty-three, section one-a, beginning on line thirteen, by striking out subdivision
six in its entirety, and by redesignating the remaining subdivisions.
On page sixty-five, section one-a, line twenty-six, following the words "other states" and the
semicolon, by striking out the word "and".
On page sixty-six, section one-a, line two, following the words "non-traditional funding",
by striking out the period and inserting a semicolon and the following: "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"
followed by a period.
On page sixty-seven, section one-b, line twenty-five, following the words "removed by a", by striking out the word "majority" and inserting in lieu thereof the words "two thirds".
On page seventy-seven, section one-b, line sixteen, following the word "duties" and the
semicolon, by inserting a new subparagraph (i) to read as follows:
"(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" followed by a semi-colon.
And,
By redesignating the remaining subparagraphs.
On page eighty-four, section two, line twenty-five, following the words "the amendments",
by striking out the period and inserting the words "and the availability of health care to injured
workers resulting from the amendments" followed by a period.
On page eighty-five, section two, line three, following the word "commission" and the
period, by inserting a new subsection (f) to read as follows:
"(f) The commission shall further report on efforts to eliminate fraud and abuse including
a statistical breakdown of investigations being conducted and their outcomes. The commission shall
report to the joint committee on government and finance on a monthly basis until the first day of
July, two thousand four, on fraud and abuse and quarterly thereafter" followed by a period.
On page ninety-seven, section nineteen, line twenty-six, following the words "obtain
benefits", by striking out the words "or payments or allowances" and the comma, and inserting in
lieu thereof a comma and the words "payments, allowances, or reduced premium costs or other
charges" followed by a comma.
On page one hundred four, section one, line two, following the words "or corporation" and
the period, by inserting a new subdivision (3) to read as follows:
"(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" followed by a period.
On page one hundred thirteen, section four, line eighteen, following the words "this chapter"
and the semicolon, by inserting a new subdivision (2) to read as follows:
"(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" followed by a semicolon.
And,
By redesignating the remaining subdivisions accordingly.
On page one hundred fifteen, section four, line seventeen, following the words "thousand
six", by striking out the period and inserting a colon and the following: "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" followed by a period.
On page one hundred seventy-eight, section one-c, line seven, following the words "longer
than", by striking out the word "seven" and inserting in lieu thereof the word "three".
On page one hundred eighty-two, section one-c, line one,following the words "is considered
overpaid" and the period, by striking out the remainder of subsection (h) and inserting in lieu thereof
the following: "For all awards made or non-awarded partial benefits paid The division the
commission or self-insured employer may only recover the amount of such overpaid benefits or
expenses by withholding, in whole or in part, as determined by the division future permanent partial
disability benefits payable to the individual in the same or other claims and credit such the amount
against the overpayment until it is repaid in full. An attorney who received attorney fees or expenses
from a person's benefits where the benefits are later determined to be an overpayment is liable to
the person for an amount equal to that portion of the overpaid benefits received by the attorney"
followed by a period.
On page one hundred eighty-five, section one-d, lines eight and nine, following the words
"considered overpaid" and the period, by striking out the remainder of subsection (d) and inserting
in lieu thereof the following: "For all awards made or non-awarded partial benefits paid The division
the commission or self-insured employer may only recover such that amount by withholding, in
whole or in part, as determined by the division commission, future permanent partial disability
benefits payable to the individual in the same or other claims and credit such the amount against the
overpayment until it is repaid in full. An attorney who received attorney fees or expenses from a
person's benefits where the benefits are later determined to be an overpayment is liable to the person
for an amount equal to that portion of the overpaid benefits received by the attorney" followed by
a period.
On page two hundred eight, section five, line thirteen, following the words "longer than",
by striking out the word "seven" and inserting in lieu thereof the word "three".
On page two hundred eight, section five, line nineteen, by striking out the word "seven" and
inserting in lieu thereof the word "three".
On page two hundred eleven, section six, line ten, following the words "prior to", by striking
out the words "the said that date, subject to annual adjustments for changes in the average weekly
wage in West Virginia" and the colon, and inserting in lieu thereof the words "the effective date of
the amendment and reenactment of this section in the year two thousand three" followed by a colon.
On page two hundred twenty-five, section six, line six, following the word "suffered", by
striking out the words "an occupational a single" and inserting in lieu thereof the words "an a single
occupational".
On page two hundred twenty-nine, section six, following line seventeen, by inserting a new
subsection (o) to read as follows:
"(o) The commission 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: Provided, That the commission 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
and one independent medical examination during each three year period thereafter until the claimant
reaches the age of seventy. The purpose of any such independent medical examination will be to
confirm the ongoing permanent total disability status of the claimant" followed by a period.
On page two hundred forty, section seven-a, line nine, following the words "an
overpayment" and the period, by striking out the remainder of subdivision (2) and inserting in lieu
thereof the following: "For all awards made or non-awarded partial benefits paid the commission
or self-insured employer 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. An attorney
who received attorney fees or expenses from a person's benefits where the benefits are later
determined to be an overpayment is liable to the person for an amount equal to that portion of the
overpaid benefits received by the attorney" followed by a period.
On page two hundred ninety-three, section eight-b, line eighteen, following the words
"within a", by striking out the words "seventy-five" and inserting in lieu thereof the word "seventy".
On page two hundred ninety-three, section eight-b, line twenty-seven, following the words
"executive director", by striking out the words "may transfer an amount not to exceed seventy" and
inserting in lieu thereof the words "shall, upon appropriation of the Legislature, transfer an amount
not to exceed fifty".
On page three hundred one, section one, line sixteen, following the words "expiration of",
by striking out the words "three hundred sixty-five days" and inserting in lieu thereof the words
"two years".
On page three hundred twelve, beginning on line six, by striking out all of the provisions
from line six through line thirteen on page three hundred twenty, and inserting in lieu thereof the
following:
§23-5-11. Workers' compensation board of review generally.
There shall be a board to be known as the "Workers' Compensation Appeal Board", which
shall be referred to in this article as the "board", to be composed of three members. The board shall
perform the duties and responsibilities assigned to it by this code consistent with the administrative
policies developed by the governor board of managers and the commissioner with the assistance
of the compensation programs performance council.
Two members of such board shall be of opposite politics to the third, and all three shall be citizens of this state who have resided therein for a period of at least five years. All members of the
board shall be appointed by the governor and shall receive an annual salary in accordance with the
provisions of section two-a, article seven, chapter six of this code. The salaries shall be payable in
monthly installments, and the members shall also be entitled to all reasonable and necessary
traveling and other expenses actually incurred while engaged in the performance of their duties. The
governor shall designate one of the members of the board as chairman thereof, and the board shall
meet at the capitol or at such other places throughout the state as it may consider proper at regular
sessions designated as "Appeal Board Hearing Days" commencing on the first Tuesday of every
month or the next regular business day, for a period of at least three days, for the purpose of
conducting hearings on appeals, and continuing as long as may be necessary for the proper and
expeditious transaction of the hearings, decisions and other business before it. All clerical services
required by the board shall be paid for by the commissioner from any funds at his or her disposal.
The board shall, from time to time, compile and promulgate such rules of practice and procedure
as to it shall appear proper for the prompt and efficient discharge of its business and such rules shall
be submitted first to the compensation programs performance council for its approval pursuant to
subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code and, if so
approved, then to the supreme court of appeals for approval, and if approved by such court shall
have the same force and effect as the approved rules of procedure of circuit courts. By and with the
consent of the commissioner, the board shall employ such clerical staff as may be necessary for the
efficient conduct of its business. Salaries of the board, and its employees, and all of its necessary
operating expenses shall be paid from the workers' compensation fund. The board shall submit its
annual budget to the commissioner for inclusion as a separate item in the budget estimates prepared
by him or her annually and within the limits of such budget, all expenses of the board shall be by
the requisition of the commissioner. Salaries of the employees of the board shall be governed by the provisions of article six, chapter twenty-nine of this code.
The board shall report monthly to the compensation programs performance council on the
status of all claims on appeal.
(a) On the thirty-first day of January, two thousand four, the workers' compensation appeal
board heretofore established in section eleven, article five of this chapter 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 judges.
__(d) The governor may 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 judges of the board of review. 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.
__(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. 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.
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 judge shall be appointed for a term ending the thirty-first
day of December, two thousand six; one judge shall be appointed for a term ending the thirty-first
day of December, two thousand eight; and one judge 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 judge 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 judge 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 judge to vacate his or her office. No judge 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 judges in rotation to be chief judge of the board for
as long as the board may determine by order made and entered of record. In the absence of the chief
judge, any other judge designated by the judges present shall act as chief judge.
__(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 during
term and in vacation, 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
administrative law judge shall promptly determine the matter and make an award in accordance with
his or her determination.
__(s) In the event of the demise, resignation, retirement, termination of employment, or other
incapacitation of the presiding administrative law judge, the award shall be determined by the chief
administrative law judge or his appointee.
__(t) 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.
__(u) The award is final when entered unless within thirty days after the date on which a copy
of the award is mailed to the parties, one of the parties files a request for review under subsection
(a), section twelve of this article. 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.
__(v) 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.
__(w) The board shall report monthly to the board of managers on the status of all claims on
appeal.
§23-5-12. Appeal to board; procedure; remand and supplemental hearing.
(a) Any employer, employee, claimant or dependent, who shall feel aggrieved at any final
action of the administrative law judge taken after a hearing held in accordance with the provisions
of section nine of this article, shall have the right to appeal to the board created in section eleven of this article for a review of such action. The workers' compensation division commission shall
likewise have the right to appeal to the appeal board any final action taken by the administrative law
judge. The aggrieved party shall file a written notice of appeal with the office of judges directed to
such 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 such appeal shall be allowed, such time
limitation being hereby declared to be a condition of the right to such appeal and hence
jurisdictional; and the office of judges shall notify the other parties immediately upon the filing of
a notice of appeal. The 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 the same it to the board. Such The certificate shall
incorporate a brief recital of the proceedings therein had in the case and recite each order entered
and the date thereof.
(b) The board shall review the action of the administrative law judge complained of at its
next meeting after the filing of notice of appeal, provided such notice of appeal shall have been filed
thirty days before such meeting of the board, unless such review be postponed by agreement of
parties or by the board for good cause. The board shall set a time and place for the hearing of
arguments on each claim and shall notify the interested parties thereof, and briefs. 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 sustain the finding of the administrative law
judge, in which case it need not make findings of fact or conclusions of law, or enter such order or
make such award as the administrative law judge should have made, stating in writing its reasons
therefor, and shall thereupon certify the same to the workers' compensation division and chief
administrative law judge, who shall proceed in accordance therewith. 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 with respect to the parties involved in the particular appeal. The executive director shall
have the right to seek judicial review of a board of review decision irrespective of whether or not
he 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
as aforesaid, the board may, upon motion of any party or upon its own motion, for good cause
shown, to be set forth in the order of the board, remand the case to the chief administrative law judge
for the taking of such new, additional or further evidence as in the opinion of the board may be
necessary for a full and complete development of the facts of the case. In the event the board shall
remand the case to the chief administrative law judge for the taking of further evidence therein, the
administrative law judge shall proceed to take such new, additional or further evidence in
accordance with any instruction given by the board, and shall take the same within thirty days after
receipt of the order remanding the case, giving to the interested parties at least ten days' written
notice of such supplemental hearing, unless the taking of evidence shall be postponed by agreement
of parties, or by the administrative law judge for good cause. After the completion of such
supplemental hearing, the administrative law judge shall, within sixty days, render his or her
decision affirming, reversing or modifying the former action of the administrative law judge, which
decision shall be appealable to, and proceeded with by the appeal board board of review in like
manner as in the first instance. In addition, upon a finding of good cause, the board may remand
the case to the workers' compensation division commission for further development. Any decision
made by the division commission following such a remand shall be subject to objection to the office
of judges and not to the board. The board may remand any case as often as in its opinion is
necessary for a full development and just decision of the case.
(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) From any final decision of the board, including any order of remand, an application for,
review Review of any final decision of the board, including any order of remand, may be prosecuted
by either party or by the workers' compensation division commission to the supreme court of
appeals within thirty days from the date thereof of the final order by the filing of a petition therefor
to such with the court against the board and the adverse party or parties as respondents, and unless
. Unless the petition for review is filed within such the thirty-day period, no such appeal or review
shall be allowed, such time limitation being hereby declared to be a condition of the right to such
appeal or review and hence jurisdictional; and the. The clerk of such the supreme court of appeals
shall notify each of the respondents and the workers' compensation division commission of the
filing of such petition. The board shall, within ten days after receipt of such notice, file with the
clerk of the court the record of the proceedings had before it, including all the evidence. The court
or any judge thereof in vacation may thereupon determine whether or not a review shall be granted.
And if granted to a nonresident of this state, he or she shall be required to execute and file with the
clerk before such order or review shall become effective, a bond, with security to be approved by
the clerk, conditioned to perform any judgment which may be awarded against him or her thereon.
The board may certify to the court and request its decision of any question of law arising upon the
record, and withhold its further proceeding in the case, pending the decision of court on the certified
question, or until notice that the court has declined to docket the same. If a review be granted or the
certified question be docketed for hearing, the clerk shall notify the board and the parties litigant or
their attorneys and the workers' compensation division, commission of that fact by mail. If a review
be granted or the certified question docketed, the case shall be heard by the court in the same manner
as in other cases, except that neither the record nor briefs need be printed. Every such review
granted or certified question docketed prior to thirty days before the beginning of the term, shall be placed upon the docket for such term. The attorney general shall, without extra compensation,
represent the board in such cases. The court shall determine the matter so brought before it and
certify its decision to the board and to the division. The cost of such proceedings on petition,
including a reasonable attorney's fee, not exceeding thirty dollars to the claimant's attorney, shall
be fixed by the court and taxed against the employer if the latter be unsuccessful, and if the claimant,
or the division commission (in case the latter be the applicant for review) be unsuccessful, such
costs, not including attorney's fees, shall be taxed against the division commission, payable out of
the workers' compensation fund, or shall be taxed against the claimant, in the discretion of the court.
But there shall be no cost taxed upon a certified question.
(b) In reviewing a decision of the board of review, the supreme court of appeals shall
consider the record provided by the board. The decision of the board may be reversed or modified
by the supreme court of appeals only if the board's findings of fact are not supported by any
evidence in the record or the decision is in clear violation of constitutional or statutory provisions
or clearly the result of erroneous conclusions of law. The court may not re-weigh the evidence. If
the court reverses or modifies the board's decision on the basis that its findings of fact are not
supported by any evidence, the court must state with specificity the reason or reasons the evidence
relied upon by the board does not satisfy this section.
And,
On by amending the enacting section to read as follows:
"That sections one, two, three, four, five, six and seven, article three, chapter twenty-one-a
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that
section five-b, article two, chapter twenty-three of said code be repealed; that section seven, article
four-a of said chapter be repealed; that section thirty-three-d, article three, chapter five-a of said
code be amended and reenacted; that sections four and five, article three, chapter five-b of said code be amended and reenacted; that section one, article two, chapter five-f of said code be amended and
reenacted; that section seven, article twelve, chapter eleven of said code be amended and reenacted;
that section four, article one-a, chapter twelve of said code be amended and reenacted; that section
six, article six of said chapter be amended and reenacted; that section ten, article two, chapter fifteen
of said code be amended and reenacted; that section fifteen, article one, chapter sixteen of said code
be amended and reenacted; that section three, article twenty-nine-d of said chapter be amended and
reenacted; that section three, article thirty-six of said chapter be amended and reenacted; that section
twenty-six, article nine-a, chapter eighteen of said code be amended and reenacted; that section
twelve-a, article ten-a of said chapter be amended and reenacted; that section two, article ten-k of
said chapter be amended and reenacted; that section three, article three-a, chapter twenty-one of said
code be amended and reenacted; that section four, article one, chapter twenty-one-a of said code be
amended and reenacted; that sections six, six-c and thirteen, article two of said chapter be amended
and reenacted; that section eleven, article ten of said chapter be amended and reenacted; that section
eight, article three, chapter twenty-two of said code be amended and reenacted; that sections one,
two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen
and eighteen, article one, chapter twenty-three of said code be amended and reenacted; that said
article be further amended by adding thereto eight new sections, designated sections one-a, one-b,
one-c, one-d, one-e, one-f, four-a and nineteen; that sections one, one-c, one-d, two, three, four, five,
five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen,
article two of said chapter be amended and reenacted; that section one, article two-a of said chapter
be amended and reenacted; that sections one, two and three, article two-b of said chapter be
amended and reenacted; that sections one, one-a, two, three and five, article three of said chapter
be amended and reenacted; that said article be further amended by adding thereto a new section,
designated section six; that sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-c, four, five, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c, nine,
nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen,
eighteen, twenty, twenty-two, twenty-three, twenty-four and twenty-five, article four of said chapter
be amended and reenacted; that said article be further amended by adding thereto a new section,
designated section one-f; that sections one, three, five, six and eight, article four-a of said chapter
be amended and reenacted; that sections two, five, six and seven, article four-b of said chapter be
amended and reenacted; that said article be further amended by adding thereto a new section,
designated section eight-b; that sections two, three, four and five, article four-c of said chapter be
amended and reenacted; that sections one, two, three, four, five, six, seven, eight, nine, ten, eleven,
twelve, fifteen, seventeen and eighteen, article five of said chapter be amended and reenacted; that
section two, article eight, chapter twenty-six of said code be amended and reenacted; that sections
one hundred twenty-five and one hundred thirty-one, article eighteen, chapter forty-eight of said
code be amended and reenacted; and that sections twenty-four-e, twenty-four-f and twenty-four-g,
article three, chapter sixty-one of said code be amended and reenacted, all to read as follows"
followed by a colon.
The question being on the adoption of the amendment to the amendment, the same was put
and prevailed.
Mr. Speaker, Mr. Kiss, and Delegate Staton, then offered the following amendment to the
amendment:
On page one hundred eighty-two, section one-c, subsection (h), by striking out the words
"An attorney who received attorney fees or expenses from a person's benefits where the benefits are
later determined to be an overpayment is liable to the person for an amount equal to that portion of
the overpaid benefits received by the attorney" and the period.
On page one hundred eighty-five, section one-d, subsection (d), by striking out the words "An attorney who received attorney fees or expenses from a person's benefits where the benefits are
later determined to be an overpayment is liable to the person for an amount equal to that portion of
the overpaid benefits received by the attorney" and the period.
And,
On page two hundred forty, section seven-a, subdivision (b)(2), by striking out the words
"An attorney who received attorney fees or expenses from a person's benefits where the benefits are
later determined to be an overpayment is liable to the person for an amount equal to that portion of
the overpaid benefits received by the attorney" and the period.
The question being on the adoption of the amendment to the amendment, the same was put
and prevailed.
Delegates Hrutkay and DeLong moved to amend the amendment on page one hundred
ninety-seven, section three, subsection (a), subdivision (4), subparagraph (B), by inserting the
claimants right to choose a doctor and removing any new language that takes away this right.
On the adoption of the amendment to the amendment, the yeas and nays were demanded,
which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 798), and there
were--yeas 43, nays 47, absent and not voting 10, with the yeas and absent and not voting being as
follows:
Yeas: Anderson, Ashley, Blair, Boggs, Brown, Browning, Butcher, Canterbury, Caputo,
Carmichael, Coleman, DeLong, Duke, Ellem, Ferrell, Fleischauer, Fragale, Hamilton, Houston,
Howard, Hrutkay, Kuhn, Louisos, Manchin, Manuel, Martin, Morgan, Paxton, Perry, Poling, Shaver,
Smirl, Sobonya, Spencer, Susman, Thompson, R., Thompson, R. M., Tucker, Webster, White, H.,
Wright, Yeager and Yost.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett, Perdue, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegates Manchin, Caputo and Ellem moved to amend the amendment on page two hundred
twenty-seven, section six, lines three through six, by striking out the following language:
"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" and the period.
On the adoption of the amendment to the amendment, Delegate Manchin demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 799), and there
were--yeas 35, nays 55, absent and not voting 10, with the yeas and absent and not voting being as
follows:
Yeas: Blair, Brown, Browning, Butcher, Caputo, Coleman, DeLong, Duke, Ellem, Ennis,
Evans, Fleischauer, Fragale, Hamilton, Hrutkay, Kuhn, Leach, Louisos, Manchin, Manuel, Martin,
Paxton, Perry, Poling, Renner, Shaver, Spencer, Susman, Thompson, R., Tucker, Webster, White,
H., Wright, Yeager and Yost.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett, Perdue,
Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Trump moved to amend the amendment on page one hundred fourteen, section
four, following line twenty, by inserting a new subsection to read as follows:
"(b) The commission shall study the feasibility of, and provide a plan for, multiple rate classifications by individual employer, for employers with employees who have different or
seasonally diverse job classifications and duties in accordance with nationally accepted procedures,
specifications and standards. On or before the first day of January, two thousand five, the
commission shall report the findings and conclusions of the study, submit the plan, and any
recommendations the commission may have as a result of the study to the joint committee on
government and finance" followed by a period.
And,
By relettering the remaining subsections.
Unanimous consent having been obtained, the foregoing amendment was withdrawn and
Delegate Trump offered a substitute amendment as follows:
On page two hundred twenty-six, section six, line twenty-six, following the word "disability"
and the period, by striking out the following: "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."
On the adoption of the amendment to the amendment, Delegate Trump demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 800), and there
were--yeas 26, nays 64, absent and not voting 10, with the yeas and absent and not voting being as
follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Carmichael, Caruth,
Duke, Ellem, Evans, Frich, Hall, Howard, Overington, Romine, Schoen, Smirl, Sobonya, Sumner,
Tabb, Trump, Wakim, Walters and White, G.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett, Perdue, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Trump moved to amend the amendment on page two hundred twenty-seven,
section six, line six, following the words "seventy years" and the period, by inserting the
following: "For any permanent total disability award made before the amendment and
reenactment of this section in the year two thousand and three, permanent total disability awards
shall cease at age seventy years. Provided, however, that for permanent total disability awards
made before the amendment and reenactment of this section in the year two thousand and three,
no such award shall terminate as a result of the seventy-year age limit hereby imposed within
five years from the effective date of the amendment and reenactment of this section in the year
two thousand and three" followed by a period.
On the adoption of the amendment to the amendment, Delegate Overington demanded
the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 801), and there
were--yeas 12, nays 77, absent and not voting 11, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Calvert, Overington, Romine, Schoen, Smirl, Sobonya, Sumner,
Trump, Wakim, Walters and White, G.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett,
Morgan, Perdue, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Trump then moved to amend the amendment on page one hundred eighty-eight,
section two, line eight, by striking out all of section two and inserting in lieu thereof the
following:
" §23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer;
legislative declarations and findings; "deliberate intention" defined.
(a) Notwithstanding anything hereinbefore or hereinafter contained in this chapter, no
employee or dependent of any employee is entitled to receive any sum from the workers'
compensation fund or to direct compensation from any employer making the election and
receiving the permission mentioned in section nine, article two of this chapter, from a self-
insured employer, or otherwise under the provisions of this chapter, on account of any personal
injury to or death to any employee caused by a self-inflicted injury or the intoxication of such the
employee. Upon the occurrence of an injury which the employee asserts, or which reasonably
appears to have, occurred in the course of and resulting from the employee's employment, the
employer may require the employee to undergo a blood test for the purpose of determining the
existence or non-existence of evidence of intoxication pursuant to rules for the administration of
the test promulgated by the board of managers; Provided, That the employer must have a
reasonable and good faith objective suspicion of the employee's intoxication and may only test
for the purpose of determining whether the person is intoxicated.
__(b) For the purpose of this chapter, the commissioner commission may cooperate with
the office of miners' health, safety and training and the state division of labor in promoting
general safety programs and in formulating rules to govern hazardous employments.
(b) (c) If injury or death result to any employee from the deliberate intention of his or her
employer to produce such the injury or death, the employee, the widow, widower, child or
dependent of the employee has the privilege to take under this chapter, and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the
amount received or receivable under this chapter.
(c) (d) (1) It is declared that enactment of this chapter and the establishment of the
workers' compensation system in this chapter was and is intended to remove from the common
law tort system all disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee except as herein expressly
provided in this chapter, and to establish a system which compensates even though the injury or
death of an employee may be caused by his or her own fault or the fault of a co-employee; that
the immunity established in sections six and six-a, article two of this chapter is an essential
aspect of this workers' compensation system; that the intent of the Legislature in providing
immunity from common lawsuit was and is to protect those so immunized from litigation outside
the workers' compensation system except as herein expressly provided in this chapter; that, in
enacting the immunity provisions of this chapter, the Legislature intended to create a legislative
standard for loss of that immunity of more narrow application and containing more specific
mandatory elements than the common law tort system concept and standard of willful, wanton
and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial
resolution of the question of whether a suit prosecuted under the asserted authority of this section
is or is not prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section and under section six-a, article
two of this chapter may be lost only if the employer or person against whom liability is asserted
acted with "deliberate intention". This requirement may be satisfied only if:
(i) It it is proved by clear and convincing evidence that such the employer or person
against whom liability is asserted acted with a consciously, subjectively and deliberately formed
intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) (i)
Conduct which produces a result that was not specifically intended; (B) (ii) conduct which
constitutes negligence, no matter how gross or aggravated; or (C) (iii) willful, wanton or reckless
misconduct; or .
(ii) The trier of fact determines, either through specific findings of fact made by the court
in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the
following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a
high degree of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of
such specific unsafe working condition and of the high degree of risk and the strong probability
of serious injury or death presented by such specific unsafe working condition;
(C) That such specific unsafe working condition was a violation of a state or federal
safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-
known safety standard within the industry or business of such employer, which statute, rule,
regulation or standard was specifically applicable to the particular work and working condition
involved, as contrasted with a statute, rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through
(C), hereof such employer nevertheless thereafter exposed an employee to such specific unsafe
working condition intentionally; and
(E) That such employee so exposed suffered serious injury or death as a direct and
proximate result of such specific unsafe working condition.
(iii) (3) In cases alleging liability under the provisions of the preceding paragraph (ii)
subdivision (2) of this section:
(A) No punitive or exemplary damages shall be awarded to the employee or other
plaintiff;
(B) Notwithstanding any other provision of law or rule to the contrary, and consistent
with the legislative findings of intent to promote prompt judicial resolution of issues of
immunity from civil litigation under this chapter, the court shall dismiss the action upon motion
for summary judgment if it finds, pursuant to rule 56 of the rules of civil procedure that one or
more of the facts required to be proved by the provisions of subparagraphs (A) through (E), of
the preceding paragraph (ii) of this subsection to show deliberate intention do not exist, and the
court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if
after considering all the evidence and every inference legitimately and reasonably raised thereby
most favorably to the plaintiff, the court determines that there is not sufficient evidence to find
each and every one of the facts required to be proven by the provisions of subparagraphs (A)
through (E), of the preceding paragraph (ii) that the employer or the person against whom
liability is asserted acted with deliberate intention as set forth in this subsection; and
(C) The provisions of this paragraph subsection, and of each subparagraph subdivision
thereof are severable from the provisions of each other subparagraph, subsection, section, article
or chapter of this code so that if any provision of a subparagraph subdivision of this paragraph
subsection or of this section is held void, the remaining provisions of this act and this code
remain valid.
(d) (e) The reenactment reenactments of this section in the regular session of the
Legislature during the year one thousand nine hundred eighty-three and the second extraordinary
session of the Legislature during the year two thousand three does do not in any way affect the right of any person to bring an action with respect to or upon any cause of action which arose or
accrued prior to the effective date of such the reenactment."
The question now before the House being the amendment to the amendment, the same
was put and did not prevail.
Delegate Trump then moved to amend the amendment on page one hundred nine,
following line twenty-six, by inserting a new section to read as follows:
"§23-2-1e. Option to Purchase Private Workers' Compensation Insurance Coverage.
The Legislature finds that the future of the economy of West Virginia is in degree
dependent upon the existence of a stable, predictable and affordable system of workers'
compensation.
The Legislature further finds that the privatization of the West Virginia's system of
workers' compensation is the means by which a stable, predictable and affordable system of
workers' compensation must ultimately be achieved.
The Legislature recognizes that given the enormity of the unfunded liability that
currently exists in the workers' compensation system, privatization cannot be achieved
immediately at the time of the enactment of this section in the year two thousand and three. The
reforms contained within this enactment are, however, a necessary first step in the path toward
stability, solvency and ultimately privatization.
Beginning on the 1st day of July, 2007, any employer in West Virginia may purchase
insurance to insure the employer's obligations under this chapter. Beginning on the 1st day of
July, 2007, workers' compensation insurance coverage may be sold in West Virginia by
insurance carriers who become licensed and authorized by the insurance commissioner to sell the
same. For any employer who purchases private workers' compensation insurance coverage, the
purchase and maintenance of such coverage for all of that employer's employees who are required to be covered under this chapter shall satisfy all the provisions of this chapter relating to
mandatory subscription to the workers' compensation fund."
On the adoption of the amendment to the amendment, Delegate Trump demanded the
yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 802), and there
were--yeas 31, nays 59, absent and not voting 10, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury,
Carmichael, Caruth, Duke, Ellem, Evans, Frich, Hall, Hamilton, Hartman, Houston, Howard,
Overington, Romine, Schoen, Smirl, Sobonya, Sumner, Thompson, R., Thompson, R. M.,
Trump, Wakim, Walters and White, G.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett,
Perdue, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Fleischauer moved to amend the bill on page three hundred twelve, section
fifteen, by striking out subsection (b) in its entirety.
On the adoption of the amendment to the amendment, Delegate Fleischauer demanded
the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 803), and there
were--yeas 25, nays 65, absent and not voting 10, with the yeas and absent and not voting being
as follows:
Yeas: Boggs, Brown, Browning, Butcher, Caputo, Coleman, DeLong, Fleischauer,
Fragale, Houston, Hrutkay, Kuhn, Louisos, Manchin, Manuel, Martin, Paxton, Poling, Spencer,
Susman, Thompson, R., Tucker, Webster, Yeager and Yost.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett,
Perdue, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
At 11:43 a.m., on motion of Delegate Staton, the House of Delegates recessed for twenty
minutes, and reconvened at that time.
Delegates Caputo, Tucker, Kuhn, Fleischauer, Manchin, Fragale and Butcher moved to
amend the amendment on page one hundred eighty-eight, following line seven, by inserting a
new section to read as follows:
§23-4-1g. Study to preserve coal-workers pneumoconiosis fund.
(a) It is the purpose of the Legislature in enacting this section to study alternatives to
removing up to one hundred and seventy million dollars from the coal-workers pneumoconiosis
fund to fund the substantial actuarial deficit in the workers' compensation fund. The study
herein mandated shall develop long-term, well planned, fair and equitable funding options to
ensure the retention of all monies possible in the coal-workers pneumoconiosis fund, to help
guarantee that those monies collected to assist miners with pneumoconiosis are retained for that
purpose.
(b) In order that the Legislature become better informed as to these matters, and
appropriately appraise and balance the interests among all entities impacted by the use of these
monies, including coal miners past, present and future who may suffer from this terrible disease
and need these monies, verses the interests of all the state's citizenry for maintaining the workers compensation system, the Legislature hereby directs the executive director of the workers
compensation division, in coordination and consultation with the commission of the bureau of
employment programs, to identify, explore, study and consider the potential benefits and risks
associated with the use of these monies to fund the deficit in the workers' compensation fund.
(c) Toward this end, the commissioner shall conduct inquiries and hold hearings in order
to provide interested and affected persons the opportunity to comment. The commission shall
appoint and oversee a committee or committees to assist in making recommendations relating to
all funding alternatives that consists of representatives of the united mine workers, the state coal
association, the state chamber of commerce, citizen members as well as appropriate state
agencies to consider all available options regarding funding mechanisms to assist in assuring
solvency for both the coal-workers pneumoconiosis fund and workers' compensation fund.
(d) The commissioner shall make monthly reports to the Joint Committee on Government
and Finance, created by article three, chapter four of this code, or a subcommittee designated by
the Joint Committee, and at the completion of such identification, exploration, study and
consideration, present to the Joint Committee or its subcommittee, no later than the first day of
December, two thousand three, a summary report which shall set forth all activities pursuant to
the mandate of the Legislature as set forth herein, any policy decisions reached and initiatives
undertaken and findings and conclusions as well as any recommendations for legislation. The
commissioner shall also make such full report to the Legislature no later than the first day of the
regular session of the Legislature in the year two thousand four.
And,
On page two hundred ninety-two, line nineteen, by striking out section eight-b in its
entirety.
On the adoption of the amendment to the amendment, Delegate Caputo demanded the
yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 804), and there
were--yeas 32, nays 58, absent and not voting 10, with the yeas and absent and not voting being
as follows:
Yeas: Brown, Browning, Butcher, Caputo, Coleman, DeLong, Duke, Ellem, Ferrell,
Fleischauer, Fragale, Hamilton, Hrutkay, Kuhn, Louisos, Manchin, Manuel, Martin, Paxton,
Perry, Poling, Shaver, Susman, Talbott, Thompson, R., Tucker, Wakim, Webster, White, H.,
Wright, Yeager and Yost.
Absent And Not Voting: Cann, Faircloth, Frederick, Hatfield, Iaquinta, Leggett,
Perdue, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Mr. Speaker, Mr. Kiss, and Delegate Staton, offered the following amendment to the
amendment:
On page three hundred twelve, section eleven, subsection (d), following the words "The
Governor", by striking out the word "may" and inserting in lieu thereof the word "shall".
On page three hundred twelve, section eleven, subsection (d), following the first "the
board of review", by inserting the following: "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" followed by a period.
On page three hundred twelve, section eleven, subsection (h), following the words "the
thirty-first day of December, two thousand three", by inserting the following: "Provided, That the 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".
On page three hundred twelve, section eleven, subsection (p), following the words
"supervision of the", by striking out the word "chairman" and inserting in lieu thereof, the words
"chief judge".
On three hundred twelve, section eleven, subsection (r), following the words
"concurrence of the parties, the", by striking out the words "administrative law".
On three hundred twelve, section eleven, subsection (s), by striking out the entire
subsection and re-lettering the remaining subsections.
And,
On three hundred twelve, section eleven, subsection (u), following the word "entered",
by inserting a period and striking out the remainder of the sentence.
The question being on the adoption of the amendment to the amendment, the same was
put and prevailed.
On motion of Delegate Schoen, the amendment was amended on page three hundred
twelve, section eleven, subsection (g), following the words "of review", by inserting a colon and
the following: "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 are, or who represent, small
business employers of this state".
The question now being on the amendment recommended by the Select Committee on
Workers' Compensation Revision, as amended, the same was put and prevailed.
House Calendar
Second Reading
On motion of Delegate Staton, S. B. 2013, Relating to workers' compensation generally,
the constitutional rule thereon having been suspended in earlier proceedings and the bill
temporarily postponed, was taken up for further consideration.
On motion of Delegate Staton, the bill was amended following the enacting clause, by
striking out the remainder of the bill and inserting in lieu thereof the provisions of Engrossed H.
B. 200.
The bill was then ordered to third reading.
Delegates Hrutkay, Trump, Caruth, Schoen, R. Thompson and Palumbo requested to be
excused from voting on the passage of S. B. 2013 under the provisions of House Rule 49, stating
that they were employed by law firms that represented Workers' Compensation claimants.
The Speaker refused to excuse the Members from voting, stating that they belongs to a
class of persons possibly to be affected by the passage of the bill and that they demonstrated no
direct personal or pecuniary interest therein.
Delegate Leach requested to be excused from voting on the passage of S. B. 2013 under
the provisions of House Rule 49, stating that the bill would affect a member of her family.
To the request of Delegate Leach, the Speaker replied that it was his opinion that there
was nothing now in the bill which had a direct effect as recited and that whilst the amendment
may have affected a family member, the actual bill did not now do so, and that she would be
required to vote.
Delegate Armstead also requested to be excused from voting on the passage of S. B.
2013 under the provisions of House Rule 49, stating that he might represent future Workers'
Compensation claimants.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member
of a class of persons possibly to be affected by the passage of the bill and that he demonstrated
no direct personal or pecuniary interest therein.
The bill was then read a third time and put upon its passage.
Delegate Perry also requested to be excused from voting on the passage of S. B. 2013
under the provisions of House Rule 49, stating that he had a current claim pending.
The Speaker excused the Gentleman from voting on the passage of the bill, stating that he
had demonstrated a direct personal or pecuniary interest therein.
The Clerk announced that the following pairs had been filed with him in accordance with
House Rule 43:
For: Cann Against: Shaver
For: Frederick Against: Perdue
For: Faircloth Against: Hrutkay
The question being on the passage of the bill, the yeas and nays were then taken (Roll
No. 805), and there were--yeas 61, excused from voting 1, paired 6, nays 26, absent and not
voting 6, with the excused from voting, paired, nays and absent and not voting being as follows:
Excused from Voting: Perry.
Paired: For: Cann Against: Shaver
For: Frederick Against: Perdue
For: Faircloth Against: Hrutkay
Nays: Browning, Butcher, Caputo, Coleman, DeLong, Duke, Ellem, Ferrell, Fleischauer,
Fragale, Hamilton, Kuhn, Louisos, Manchin, Manuel, Martin, Paxton, Poling, Susman,
Thompson, R., Tucker, Webster, White, H., Wright, Yeager and Yost.
Absent and Not Voting: Hatfield, Iaquinta, Leggett, Schadler, Shelton and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 2013) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
S. B. 2013 - "A Bill to repeal sections one, two, three, four, five, six and seven, article
three, chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one,
as amended; to repeal section five-b, article two, chapter twenty-three of said code; to repeal
section seven, article four-a of said chapter; to amend and reenact section thirty-three-d, article
three, chapter five-a of said code; to amend and reenact sections four and five, article three,
chapter five-b of said code; to amend and reenact section one, article two, chapter five-f of said
code; to amend and reenact section seven, article twelve, chapter eleven of said code; to amend
and reenact section four, article one-a, chapter twelve of said code; to amend and reenact section
six, article six of said chapter; to amend and reenact section ten, article two, chapter fifteen of
said code; to amend and reenact section fifteen, article one, chapter sixteen of said code; to
amend and reenact section three, article twenty-nine-d of said chapter; to amend and reenact
section three, article thirty-six of said chapter; to amend and reenact section twenty-six, article
nine-a, chapter eighteen of said code; to amend and reenact section twelve-a, article ten-a of said
chapter; to amend and reenact section two, article ten-k of said chapter; to amend and reenact
section three, article three-a, chapter twenty-one of said code; to amend and reenact section four,
article one, chapter twenty-one-a of said code; to amend and reenact sections six, six-c and
thirteen, article two of said chapter; to amend and reenact section eleven, article ten of said
chapter; to amend and reenact section eight, article three, chapter twenty-two of said code; to
amend and reenact sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, seventeen and eighteen, article one, chapter twenty-three of said code;
to further amend said article by adding thereto eight new sections, designated sections one-a, one-b, one-c, one-d, one-e, one-f, four-a and nineteen; to amend and reenact sections one, one-c,
one-d, two, three, four, five, five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen and seventeen, article two of said chapter; to amend and reenact section
one, article two-a of said chapter; to amend and reenact sections one, two and three, article two-b
of said chapter; to amend and reenact sections one, one-a, two, three and five, article three of
said chapter; to further amend said article by adding thereto one new section, designated section
six; to amend and reenact sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b,
three-c, four, five, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c,
nine, nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a,
seventeen, eighteen, twenty, twenty-two, twenty-three, twenty-four and twenty-five, article four
of said chapter; to further amend said article by adding thereto a new section, designated section
one-f; to amend and reenact sections one, three, five, six and eight, article four-a of said chapter;
to amend and reenact sections two, five, six and seven, article four-b of said chapter; to further
amend said article by adding thereto a new section, designated section eight-b; to amend and
reenact sections two, three, four and five, article four-c of said chapter; to amend and reenact
sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, fifteen, seventeen
and eighteen, article five of said chapter; to amend and reenact section two, article eight, chapter
twenty-six of said code; to amend and reenact sections one hundred twenty-five and one hundred
thirty-one, article eighteen, chapter forty-eight of said code; and to amend and reenact sections
twenty-four-e, twenty-four-f and twenty-four-g, article three, chapter sixty-one of said code, all
relating to workers' compensation generally; repealing provisions relating to the compensation
programs performance council; repealing provisions relating to default settlement; repealing
provisions relating to employees and payment of salaries from the disabled workmen's relief
fund; removing workers' compensation from the bureau of employment programs; directing certain reports to be filed quarterly; providing legislative findings; creating workers'
compensation commission as an independent agency assuming all duties of division; creating the
workers' compensation board of managers; establishing composition of board; establishing
qualifications for membership; establishing appointment procedures for members; providing for
compensation and travel expenses; setting forth the powers and duties of board; establishing
position, powers and duties of executive director; establishing qualifications; establishing
procedure for removal; providing violator system to prohibit certain persons from obtaining state
licenses, certificates and permits in certain circumstances; providing for payment withholding
and interception of moneys of certain employers; providing penalties for failure to withhold or
intercept payments; authorizing interagency agreements for the bureau of employment programs
and workers' compensation commission; providing for the adoption of workers' compensation
rules by commission; transferring assets and contracts; establishing fraud and abuse investigation
and prosecution unit; providing powers and duties of unit; providing for legislative oversight of
commission; providing for salaries and expenses of commission; requiring bond and insurance
for the executive director and associate director; authorizing the executive director to hire an
associate director and other employees; providing for associate director to assume authority in
absence of executive director; authorizing certain commission employees to administer oaths;
providing for issuance and enforcement of agency subpoenas; providing additional civil
remedies for violations of law; allowing certain elected local officials not to participate in
workers' compensation; providing that limited liability companies may elect to not provide
workers' compensation coverage to certain members; clarifying that extraction of natural
resources is provision of services; requiring promulgation of rule to prevent contractors from
avoiding liability for workers' compensation premiums; creating ongoing duty to provide
information to commission; authorizing rate reductions for safety and loss prevention and drug-free workplace initiatives; requiring rates, surcharges and assessments to be financially sound
and sufficient to meet needs of the funds; establishing rate caps; authorizing the commission to
require employers to pay premium taxes more often than quarterly; extending time for
commission to collect from defaulting or delinquent employers; establishing statute of
limitations; allowing specified groups of employers to self-insure their obligations to the
commission; requiring self-insured employers to administer claims; requiring self-insured
employers to comply with the law and commission rules; establishing components of self-
insured premium tax; requiring employers that self-insured second injury benefits to continue to
be responsible for the claims; providing that self-insured employers who fail to make benefit
payments are in default in certain circumstances; authorizing the commission to determine self-
insured rates; authorizing self-insured employers to obtain third-party insurance for catastrophic
claims and requiring copy of policy; prohibiting self-insured employers from contracting with
third-party administrators who have not been approved by the commission; allowing for
subrogation of medical benefits and authorizing reasonable attorney fees and reasonable portion
of costs; eliminating second injury awards and the second injury reserve fund for certain claims;
providing for management of the deficit; authorizing emergency fiscal measures; reporting
requirements of self-insurers; requiring commission to adopt standards for evaluation of whole-
body impairment with regard to certain occupational diseases; providing an expedited appeal to
the office of judges where self-insured denies compensability; requiring assessment of
claimant's return to work potential; providing assistance in return to work efforts; authorizing
repayment of overpayments from future benefits and providing for liability of attorney for
certain fees and expenses; prohibiting a claimant from receiving certain workers' compensation
benefits and private benefits in certain circumstances; requiring award of permanent partial
disability benefits be made as expeditiously as possible; requiring medical providers to submit timely requests for payment; authorizing certain employers with managed health care plans to
require employees to use the plan for treatment of compensable injuries; exceptions; authorizing
the commission to establish managed health care plans; requiring commission to propose
legislative rules governing use of managed health care plans; providing for weighing of
evidence; providing for suspension or termination of health care providers; requiring
commission to set standards for medical management of claims; providing benefits for cemetery
expenses; eliminating annual increases in benefits; reducing certain benefit rates; establishing
new criteria for eligibility for benefits for certain injuries and diseases; increasing to fifty percent
the percentage of whole body impairment for eligibility for consideration for a permanent total
disability award; establishing internal operative dates; requiring the executive director to
promulgate a rule to establish requirements for an application for permanent total disability
benefits; specifying application required for claim for permanent total disability benefits;
providing for the establishment of an onset date for permanent total disability benefits; providing
for increase of minimum aggregation of percentages permanent disability or medical impairment
prior to applying for permanent total disability award; providing for prior disability awards
excluded from calculation; providing that ability to acquire skills may be considered in
permanent total disability determination; providing that neither certain proximity of employment
nor comparison of wages may be considered when determining permanent total disability;
terminating permanent total disability benefits at age seventy in certain circumstances;
eliminating the five percent presumptive award of occupational pneumoconiosis; authorizing
application for occupational pneumoconiosis benefits within three years of determination of
impairment; providing that the commission may suspend benefits to a claimant for refusing,
without good cause, treatment or examination by a physician; providing for a trial work period;
modifying provisions for vocational rehabilitation services; authorizing reopening and review of claims; establishing duty to provide information to commission; expanding monitoring in injury
claims; authorizing suspension or termination of benefits in certain circumstances; removing
certain offset provisions; providing certain incentives for premium discounts; providing that
certain portion of rate increase not be subject to collection; expanding sources from which
overpayment of benefits and awards may be collected; providing for further examinations of
certain disability benefit recipients; providing for transfer of certain funds from and to coal
worker' pneumoconiosis fund; permitting certain employers to self-insure certain obligations;
providing for the settlement of claims; providing a statute of limitations on employer liability in
certain circumstances; requiring certain security or bond from employers; administration of
claims by self-insured employers; requiring certain additional amounts to be paid to the
commission by employers; providing circumstances in which employers are in default in
obligations to the commission; requiring commission approval of employer use of third party
administrator; requiring electronic transfer of funds; providing time limitation for certain
payments; authorizing rule to permit employers to contract with certain providers of services in
certain circumstances; providing for payments of certain benefits during participation in certain
rehabilitation plans; providing for the termination of or limitation on certain benefits in certain
circumstances; requiring rules for certain administrative functions; requiring expedited hearings
in certain circumstances; providing for finality of certain administrator decisions; providing
standards of review; providing for mediation; providing for removal of chief administrative law
judge; providing for appeals; establishing time frames for appeals; establishing standards for
appeal; creating the workers' compensation board of review; providing for appointment of
members of board by the governor; establishing qualifications of judges; establishing position of
chief judge; authorizing rules of procedure; authorizing clerk and other employees; providing for
remand of cases; providing for standards for appeals to the West Virginia supreme court of appeals; providing civil and criminal penalties and judgments for restitution; making technical
corrections and removing archaic language throughout; and providing conforming amendments."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 806), and there were--yeas 73,
excused from voting 1, paired 6, nays 13, absent and not voting 7, with the excused from voting,
paired, nays and absent and not voting being as follows:
Excused from Voting: Perry.
Paired: For: Cann Against: Shaver
For: Frederick Against: Perdue
For: Faircloth Against: Hrutkay
Nays: Butcher, Caputo, Duke, Ellem, Kuhn, Louisos, Manchin, Manuel, Martin, Paxton,
Thompson, R., Tucker and Yeager.
Absent And Not Voting: Hartman, Hatfield, Iaquinta, Leggett, Schadler, Shelton and
Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 2013) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Delegate Manchin asked and obtained unanimous consent that the remarks of Delegate
Caputo regarding the effect of the passage of S. B. 2013 on the "Black Lung Fund" be printed in
the Appendix to the Journal.
On motion of Delegate Staton, the House of Delegates proceeded to further consideration
of H. B. 200, Relating to workers' compensation generally.
On motion of Delegate Staton, the bill was then laid upon the table.
H. B. 206, Continuing the equal pay commission; on third reading, coming up in regular
order, was, on motion of Delegate Staton, laid upon the table.
H. B. 209, Continuing the funding of the Hatfield-McCoy recreation authority projects;
on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the
table.
H. B. 212, Expiring funds to the unappropriated surplus balance in the state fund, general
revenue; on third reading, coming up in regular order, with the right to amend, was, at the
request of Delegate Staton, and by unanimous consent, postponed until the completion of all
bills remaining on third reading.
H. B. 213, Supplementary appropriation of public moneys out of moneys remaining as an
unappropriated balance in the state fund, general revenue, to the department of education; on
third reading, coming up in regular order, with the right to amend, was, at the request of
Delegate Staton, and by unanimous consent, postponed until the completion of all bills
remaining on third reading.
H. B. 219, Supplementary appropriation to a new item of appropriation designated to the
governor's office - jobs and growth tax relief reconciliation act of 2003; on third reading,
coming up in regular order, with the right to amend, was, at the request of Delegate Staton, and
by unanimous consent, postponed until the completion of all bills remaining on third reading.
H. B. 220, Relating generally to creation and administration of economic opportunity
districts by county commissions and Class I and II municipalities; on third reading, coming up in
regular order, with the right to amend, was, on motion of Delegate Staton, laid upon the table.
Delegate Morgan announced that he was absent when the vote was taken on Roll No.
801, and that had he been present, he would have voted "Yea" thereon.
At 1:35 p.m., on motion of Delegate Staton, the House of Delegates recessed until 2:45
p.m., and reconvened at that time.
* * * * * * * * * *
House Calendar
Third Reading - Continued
H. B. 222, Creating processes and procedures allowing agencies, counties and their
instrumentalities to enter into performance-based contracts with qualified providers of energy
conservation measures; on third reading, coming up in regular order, with the right to amend,
was reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page one, following the
enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the
following:
"That chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended by adding thereto a new article, designated article three-b, to read as
follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3B. ENERGY-SAVINGS CONTRACTS.
§5A-3B-1. Definitions.
As used in this article:
(a) 'Agency' means any state department, division, office, commission, authority, board
or other unit authorized by law to enter into contracts for the provision of goods or services;
(b) 'Energy-conservation measures' means goods or services, or both, to reduce energy
consumption operating costs of agency facilities. They include, but are not limited to,
installation of one or more of the following:
(1) Insulation of a building structure and systems within a building;
(2) Storm windows or doors, caulking or weather stripping, multiglazed windows or
doors, heat-absorbing or heat-reflective glazed and coated window or door systems, or other
window or door modifications that reduce energy consumption;
(3) Automatic energy control systems;
(4) Heating, ventilating or air conditioning systems, including modifications or
replacements;
(5) Replacement or modification of lighting fixtures to increase energy efficiency;
(6) Energy recovery systems;
(7) Cogeneration systems that produce steam or another form of energy for use by any
agency in a building or complex of buildings owned by the agency; or
(8) Energy-conservation maintenance measures that provide long-term operating cost
reductions of the building's present cost of operation.
(c) 'Energy-savings contract' means a performance-based contract for the evaluation and
recommendation of energy operations conservation measures, and for implementation of one or
more measures.
(d) 'Qualified provider' means a person, firm or corporation experienced in the design,
implementation and installation of energy-conservation measures.
§5A-3B-2. Contracts for energy-savings contracts.
(a) Agencies are authorized to enter into performance-based contracts with qualified
providers of energy-conservation measures for the purpose of significantly reducing energy
operating costs of agency owned buildings, subject to the requirements of this section.
(b) Before entering into a contract or before the installation of equipment, modifications
or remodeling to be furnished under a contract, the qualified provider shall first issue a proposal summarizing the scope of work to be performed. A proposal must contain estimates of all costs
of installation, modifications or remodeling, including the costs of design, engineering,
installation, maintenance, repairs or debt service, as well as estimates of the amounts by which
energy operating costs will be reduced. If the agency finds, after receiving the proposal, that the
proposal includes one or more energy-conservation measures, the installation of which is
guaranteed to result in a net savings of a minimum of five percent of the then current energy
operating costs which savings will, at a minimum, satisfy any debt service required, the agency
may enter into a contract with the provider pursuant to this section.
(c) An energy-savings contract must include the following:
(1) A guarantee of a specific minimum net percentage amount of at least five percent of
energy operating costs each year over the term of the contract that the agency will save;
(2) A statement of all costs of energy-conservation measures, including the costs of
design, engineering, installation, maintenance, repairs and operations; and
(3) A provision that payments, except obligations upon termination of the contract before
its expiration, are to be made over time.
(d) An agency may supplement its payments with federal, state or local funds to reduce
the annual cost or to lower the initial amount to be financed.
(e) An energy-savings contract is subject to competitive bidding requirements and other
requirements of article three of this chapter.
(f) An energy-savings contract may extend beyond the fiscal year in which it first
becomes effective: Provided, That such a contract may not exceed a fifteen year term:
Provided, however, That the long term contract will be void unless the agreement provides that
the agency shall have the option during each fiscal year of the contract to terminate the
agreement.
(g)
Agencies may enter into a 'lease with an option to purchase' contract for the purchase
and installation of energy-conservation measures if the term of the lease does not exceed fifteen
years, and the lease contract includes the provisions contained in subsection (f) of this section,
and meets federal tax requirements for tax-exempt municipal leasing or long-term financing.
(h) The agency may include in its annual budget for each fiscal year any amounts
payable under long-term energy-savings contracts during that fiscal year.
(i) Upon the issuance of an request for proposals or request for quotations for an energy
savings contract, the agency shall provide a copy thereof to the joint committee on government
and finance.
(j) Before signing an energy-savings contract or extending an existing energy savings
contract, the agency shall give thirty days written notice, which notice shall include a copy of the
proposal containing the information required by subsection (b) of this section, to the joint
committee on government and finance."
On motion of Delegate Staton, further consideration of H. B. 222 was then passed over
temporarily.
House Calendar
Second Reading
S. B. 2007, Amending state excess lottery revenue fund; on second reading, coming up in
regular order, was read a second time.
Delegate Frich moved to amend the bill on page six, section eighteen-a, line four,
following the word "into", by striking out the remainder of subdivision (3) and inserting in lieu
thereof the words "the general revenue fund of the state for the purpose of providing additional
revenue, pursuant to appropriation of the Legislature, to provide additional funding for the
workers' compensation system of the state as a supplement to other fiscal measures being taken to reduce and eliminate the immediate and critical threat to the solvency of the workers'
compensation system of the state" followed by a semicolon.
On page six, section eighteen-a, line twenty-three, following the word "into", by striking
out the remainder of subdivision (3) and inserting in lieu thereof the words "the general revenue
fund of the state for the purpose of providing additional revenue, pursuant to appropriation of the
Legislature, to provide additional funding for the workers' compensation system of the state as a
supplement to other fiscal measures being taken to reduce and eliminate the immediate and
critical threat to the solvency of the workers' compensation system of the state" followed by a
semicolon.
And,
On page eight, section eighteen-a, line one, by striking out all of subdivision (d) and
inserting in lieu thereof the following:
"(d) As of the first day of July, two thousand three, the economic development project
fund, create in the amendment and reenactment of this section in the two thousand two regular
session of the Legislature, shall expire, and all funds in said fund shall be deposited into the
general revenue fund of the state for the purpose of providing additional revenue, pursuant to
appropriation of the Legislature, to provide additional funding for the workers' compensation
system of the state as a supplement to other fiscal measures being taken to reduce and eliminate
the immediate and critical threat to the solvency of the workers' compensation system of the
state.
(e) The changes set forth herein to this section by the amendment and reenactment of this
section in the second extraordinary session of the Legislature in the year two thousand three
shall become effective on the first day of July, two thousand three."
On the adoption of the amendment, Delegate Beach demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 807), and there
were--yeas 19, nays 67, absent and not voting 14, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Armstead, Ashley, Blair, Border, Calvert, Canterbury, Carmichael,
Caruth, Duke, Ellem, Evans, Frich, Hamilton, Long, Louisos, Smirl, Sumner and Trump.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was not adopted.
Delegate Frich moved to amend the bill on page six, section eighteen-a, line three,
following the word "code" and the semicolon, by striking out all of subdivision (3).
On page six, section eighteen-a, line twenty-three, following the word "code" and the
semicolon, by striking out all of subdivision (3).
And,
On page eight, section eighteen-a, line one, by striking out all of subdivision (d) and
inserting in lieu thereof the following:
"(d) As of the first day of July, two thousand three, the economic development project
fund, created in the amendment and reenactment of this section in the two thousand two regular
session of the Legislature, shall expire, and all funds in the fund shall be deposited into the
general revenue fund of the state. The changes set forth herein to this subsection by the
amendment and reenactment of this section in the second extraordinary session of the Legislature in the year two thousand three shall become effective on the first day of July, two
thousand three."
On the adoption of the amendment, Delegate Beach demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 808), and there
were--yeas 20, nays 66, absent and not voting 14, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Armstead, Ashley, Blair, Border, Calvert, Canterbury, Carmichael,
Caruth, Duke, Ellem, Evans, Frich, Hall, Hamilton, Louisos, Overington, Schoen, Sumner and
Trump.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was not adopted.
Mr. Speaker, Mr. Kiss, and Delegate Staton offered the following amendment:
On page seven, section eighteen-a, line four, following the words "subsection (d)", by
striking out the "(e)" and inserting in lieu thereof "(d)".
On page seven, section eighteen-a, line fifteen, following the word "improvements" and
the period, by striking out the remainder of the subsection.
On page twelve, section eighteen-a, line eleven, following the word "committee", by
striking out the remainder of the sentence.
On page fifteen, section eighteen-a, following line five, by inserting a new paragraph (J),
as follows, and relettering the remaining paragraphs:
"(J) State-owned buildings that are registered on the national register of historic places"
followed by a semi-colon.
On page fifteen, section eighteen-a, line sixteen, following the word "bonds" and the
period, by striking the remainder of the subdivision.
On page fifteen, section eighteen-a, line twenty-four, following the word "code" and the
period, by inserting the following: "Expenditures from the fund are not authorized from
collections but are to be made only in accordance with appropriation by the Legislature and in
accordance with the provisions of article three, chapter twelve of this code and upon fulfillment
of the provisions of article two, chapter five-a of this code" followed by a period.
On page sixteen, section eighteen-a, following line two, by inserting a new subsection
(e), as follows, and relettering the remaining subsections:
"(e) Notwithstanding any provision of this code to the contrary, no portion of the
distributions made as provided in subsections (b), (c) and (d) of this section may be used to pay
debt service on bonded indebtedness until after the Legislature expressly authorizes issuance of
the bonds and payment of debt service on the bonds, and in the event the bonds are issued in
separate series, until after the Legislature expressly authorizes issuance of each series, through
statutory enactment or the passage of a concurrent resolution by both houses of the Legislature.
Until subsequent legislative enactment or adoption of a resolution that expressly authorizes
issuance of the bonds, including any separate series, and payment of debt service on the bonds
with funds distributed under subsections (b), (c), and (d) of this section, the distributions may be
used only to fund capital improvements that are not financed by bonds and only pursuant to
appropriation of the Legislature."
And,
On page sixteen, section eighteen-a, line twenty-two, following the words "subsection
(f)", by striking out the words "of said this section" and inserting in lieu thereof a comma and
the words "section eighteen of this article".
The question being on the adoption of the amendment, the same was put and prevailed.
Delegates Overington, Duke and Blair moved to amend the bill on page thirteen, section
eighteen-a, line eleven, following the word "circumstances", by inserting a new subdivision, to
read as follows:
"(10) Notwithstanding any provision of this section to the contrary, the aggregate amount
of all grants awarded and all low interest loans certified to be received by an individual or
private person or entity in a county may not exceed the total of the following: the total amount
of revenue bonds authorized to be issued by the West Virginia economic development authority
pursuant to this section, multiplied by a percentage equal to the total population of the county
divided by the total population of the state, in accordance with the year two thousand census of
population taken by the bureau of the census of the United States department of commerce:
Provided, That upon approval by resolutions of the county commissions of two or more
contiguous counties, the maximum aggregate amounts of grants and low interest loans allowed
by this subdivision to the contiguous counties may be combined for the total area of the
contiguous counties."
And,
By renumbering the remaining subdivisions.
On the adoption of the amendment, Delegate Overington demanded the yeas and nays,
which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 809), and there
were--yeas 21, nays 65, absent and not voting 14, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Armstead, Ashley, Blair, Border, Calvert, Canterbury, Carmichael,
Caruth, Duke, Ellem, Evans, Hall, Hamilton, Louisos, Overington, Schoen, Sumner, Tabb,
Trump and Walters.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was not adopted.
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and
distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 810), and there were--yeas 72,
nays 13, absent and not voting 15, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Border, Calvert, Carmichael, Duke, Ellem, Evans, Frich,
Louisos, Overington, Schoen and Sumner.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Hrutkay, Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional
rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
811), and there were--yeas 69, nays 17, absent and not voting 14, with the nays and absent and
not voting being as follows:
Nays: Anderson, Armstead, Ashley, Blair, Border, Calvert, Carmichael, Caruth, Duke,
Evans, Frich, Hall, Louisos, Overington, Schoen, Sumner and Trump.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 2007) passed.
On motion of Mr. Speaker, Mr. Kiss, and Delegate Staton, title of the bill was amended
to read as follows:
S. B. 2007 - "A Bill to amend and reenact section eighteen-a, article twenty-two, chapter
twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended,
relating generally to state excess lottery fund; deleting obsolete language; providing that certain
bonds issued state on their face that they do not constitute a debt of the state; providing that the
governor appoint six persons to the committee certifying projects to receive funds from bond
proceeds; designating prior applications as refiled; requiring a certain applicant to file additional
information with the committee; providing criteria to be used by the committee in certifying
projects; prohibiting grants to individuals or private entities, but allowing low-interest loans to
such persons; giving examples of the types of projects considered to be in the public interest;
requiring Legislative authorization of issuance of certain bonds, series of bonds and payment of
debt service on bonds through statutory enactment or concurrent resolution; and providing that
any excess funds be placed in the economic development project bridge loan fund."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 812), and there were--yeas 73,
nays 13, absent and not voting 14, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Border, Calvert, Carmichael, Duke, Evans, Frich, Hall, Louisos,
Overington, Schoen and Sumner.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 2007) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for S. B. 2012, Allowing agencies, counties and their instrumentalities to
enter into energy saving contracts; leaseback; on second reading, coming up in regular order,
was read a second time.
On motion of Delegate Staton, the bill was amended on page one, following the enacting
clause, by striking out the remainder of the bill and inserting in lieu thereof the provisions of
Engrossed H. B. 222.
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and
distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 813), and there were--yeas 83,
nays 3, absent and not voting 14, with the nays and absent and not voting being as follows:
Nays: Duke, Evans and Schoen.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, four fifths of the members present having voted in the affirmative, the constitutional
rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
814), and there were--yeas 83, nays 3, absent and not voting 14, with the nays and absent and
not voting being as follows:
Nays: Duke, Evans and Schoen.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for S. B. 2012) passed.
On motion of Delegate Michael, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 2012 - "A Bill to amend chapter five-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article,
designated article three-b, relating to authorizing state agencies to enter into performance-based
contracts with qualified providers of energy-conservation measures for the purpose of reducing
energy operating costs of agency owned buildings."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 815), and there were--yeas 83,
nays 3, absent and not voting 14, with the nays and absent and not voting being as follows:
Nays: Duke, Evans and Schoen.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 2012) takes effect from its
passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
returned to the Eleventh Order of Business for the purpose of considering Bills on Third
Reading.
House Calendar
Third Reading
The House of Delegates next proceeded to further consideration of H. B. 219, H. B. 212,
H. B. 213 and H. B. 222, all having been postponed in earlier proceedings.
H. B. 219, Supplementary appropriation to a new item of appropriation designated to the
governor's office - jobs and growth tax relief reconciliation act of 2003; on third reading, with
the right to amend, was then reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page one, by striking out
everything following the enacting clause and inserting in lieu thereof the following:
"That chapter twenty, acts of the Legislature, regular session, two thousand three, known
as the budget bill, be supplemented and amended by adding to Title II, section six thereof the
following:
TITLE II - APPROPRIATIONS.
Sec. 6. Appropriations of federal funds.
EXECUTIVE
246a-Governor's Office-
Jobs and Growth Tax Relief
Reconciliation Act of 2003
(WV Code Chapter 5)
Fund 8859 FY 2004 Org 0100
Act- Federal
ivity Funds
1 Unclassified - Total - Transfer 402 $ 61,493,122
From the above appropriation for unclassified - total - transfer a total of $14,000,000 shall
be transferred to the workers' compensation fund, fund 3440, organization 0322; $19,672,122
shall be transferred to the tax reduction and federal funding increased compliance fund, fund
1732, organization 2300; and a total of $27,821,000 shall be transferred to the general revenue
fund. Additional transfers or expenditures shall be made only upon appropriation by the
Legislature.
The purpose of this supplementary appropriation bill is to supplement this account in the
budget act for the fiscal year ending the thirtieth day of June, two thousand four, by providing
for a new item of appropriation to be established therein to appropriate federal funds for the
designated spending unit for expenditure during the fiscal year two thousand four."
There being no further amendments and having been engrossed, the bill was then read a
third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 816), and there
were--yeas 86, nays none, absent and not voting 14, with the absent and not voting being as
follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 219) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 817), and there were--yeas 85,
nays 1, absent and not voting 14, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 219) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
H. B. 212, Expiring funds to the unappropriated surplus balance in the state fund, general
revenue; on third reading, with the right to amend, was next reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page one, by striking out
everything following the enacting clause and inserting in lieu thereof the following:
"That the balance of funds in the revenue shortfall reserve fund, fund 2038, organization
0201, be decreased by expiring the amount of three million dollars to the unappropriated surplus
balance of the state fund, general revenue, and that the total appropriation for fiscal year ending
the thirtieth day of June, two thousand three, to fund 0105, fiscal year 2003, organization 0100,
be supplemented and amended by increasing the total appropriation as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
8-Governor's Office-
Civil Contingent Fund
(WV Code Chapter 5)
Fund 0105 FY 2003 Org 0100
General
Act- Revenue
ivity Fund
1 Civil Contingent Fund - Total -
1a Surplus (R) 238 $ 3,000,000
The purpose of this bill is to supplement and increase item of appropriations in the
aforesaid account for the designated spending unit for expenditure during the fiscal year two
thousand three."
There being no further amendments and having been engrossed, the bill was then read a
third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 818), and there
were--yeas 86, nays none, absent and not voting 14, with the absent and not voting being as
follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 212) passed.
On motion of Delegate Michael, the title of the bill was amended to read as follows:
H. B. 212 - "A Bill expiring funds to the unappropriated surplus balance in the state fund,
general revenue, for the fiscal year ending the thirtieth day of June, two thousand three, in the
amount of three million dollars from the revenue shortfall reserve fund, fund 2038, organization 0201, and making a supplementary appropriation of public moneys out of the treasury from the
unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand
three, to the governor's office - civil contingent fund, fund 0105, fiscal year 2003, organization
0100."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 819), and there were--yeas 86,
nays none, absent and not voting 14, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 212) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
H. B. 213, Supplementary appropriation of public moneys out of moneys remaining as an
unappropriated balance in the state fund, general revenue, to the department of education; on
third reading, with the right to amend, was next reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page two, by striking out
everything following the enacting clause and inserting in lieu thereof the following:
"That the total appropriation for the fiscal year ending the thirtieth day of June, two
thousand four, to fund 0313, fiscal year 2004, organization 0402, be supplemented and increased
in the existing and new line items as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF EDUCATION
34-State Department of Education
(WV Code Chapters 18 and 18A)
Fund 0313 FY 2004 Org 0402
_______________________________________________________ General
Act- Revenue
ivity Funds
4 Unclassified (R) 099 $ 921,000
26a Safe Schools 143 1,000,000
And, that the total appropriation for the fiscal year ending the thirtieth day of June, two
thousand four, to fund 0294, fiscal year 2004, organization 0431, be supplemented and increased
in new line items as follow:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF EDUCATION AND THE ARTS
40-Department of Education and the Arts-
Office of the Secretary
(WV Code Chapter 5F)
Fund 0294 FY 2004 Org 0431
_______________________________________________________ General
Act- Revenue
ivity Funds
7a Governor's Honors Academy
And School for the Arts 030 $ 410,000
7b Teacher Education Partnerships 576 600,000
And, that the total appropriation for the fiscal year ending the thirtieth day of June, two
thousand four, to fund 0256, fiscal year 2004, organization 0307, be supplemented and increased
in the existing line item as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
BUREAU OF COMMERCE
73-West Virginia Development Office-
(WV Code Chapter 5B)
Fund 0256 FY 2004 Org 0307
_______________________________________________________ General
Act- Revenue
ivity Funds
39 Local Economic
40 Development Assistance 819 $ 900,000
And, that the total appropriation for the fiscal year ending the thirtieth day of June, two
thousand four, to fund 0589, fiscal year 2004, organization 0441, be supplemented and increased
in a new line item as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
HIGHER EDUCATION POLICY COMMISSION
85-Higher Education Policy Commission-
Administration-
Control Account
(WV Code Chapter 18B)
Fund 0589 FY 2004 Org 0441
_______________________________________________________ General
Act- Revenue
ivity Funds
10a HEAPS Grant Program 867 1,000,000
And, that the total appropriation for the fiscal year ending the thirtieth day of June, two
thousand four, to fund 0586, fiscal year 2004, organization 0442, be supplemented and increased
in the existing and new line items as follow:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
HIGHER EDUCATION POLICY COMMISSION
86-Higher Education Policy Commission-
System-
Control Account
(WV Code Chapter 18B)
Fund 0586 FY 2004 Org 0442
_______________________________________________________ General
Act- Revenue
ivity Funds
40 West Virginia University -
41 Potomac State 994 $ 100,000
49a Tuition offset for Freestanding
49b Community and Technical
49c Colleges 032 300,000
And, that the total appropriation for the fiscal year ending the thirtieth day of June, two
thousand four, to fund 0591, fiscal year 2004, organization 0441, be supplemented and increased
in new and existing line items as follow:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
HIGHER EDUCATION POLICY COMMISSION
88-Higher Education Policy Commission-
Legislative-
Funding Priorities
Control Account
(WV Code Chapter 18B)
Fund 0591 FY 2004 Org 0441
_______________________________________________________ General
Act- Revenue
ivity Funds
2 Research Challenge 502 600,000
2a Higher Education - Special Projects 488 $ 990,000
The purpose of this supplementary appropriation bill is to increase items of appropriations
in the aforesaid accounts for the designated spending units for expenditure during fiscal year two
thousand four."
There being no further amendments and having been engrossed, the bill was then read a
third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 820), and there
were--yeas 86, nays none, absent and not voting 14, with the absent and not voting being as
follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 213) passed.
On motion of Delegate Michael, the title of the bill was amended to read as follows:
H. B. 213 - "A Bill making a supplementary appropriation of public moneys out of the
treasury from the balance of moneys remaining as an unappropriated balance in the state fund,
general revenue, to the department of education - state department of education, fund 0313,
fiscal year 2004, organization 0402, to the department of education and the arts - office of the
secretary, fund 0294, fiscal year 2004, organization 0431, to the West Virginia development
office, fund 0256, fiscal year 2004, organization 0307, and the higher education policy
commission - administration - control account, fund 0589, fiscal year 2004, organization 0441,
to the higher education policy commission - system - control account, fund 0586, fiscal year
2004, organization 0442, and to the higher education policy commission - legislative - funding
priorities - control account, fund 0591, fiscal year 2004, organization 0441, all supplementing
and amending the appropriations for the fiscal year ending the thirtieth day of June, two
thousand four."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 821), and there were--yeas 86,
nays none, absent and not voting 14, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 213) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
H. B. 222, Creating processes and procedures allowing agencies, counties and their
instrumentalities to enter into performance-based contracts with qualified providers of energy
conservation measures; on third reading, with the right to amend, was, on motion of Delegate
Staton, laid upon the table.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 210, Supplemental appropriation to various departments in the governor's office.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page four, line seventeen, following the word "of", by inserting the words "fund 0131,
fiscal year 2003, activity 099 ($79,333)" followed by a comma.
On motion of Delegate Staton, the House of Delegates concurred in the Senate
amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 822), and there
were--yeas 86, nays none, absent and not voting 14, with the absent and not voting being as
follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 210) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 823), and there were--yeas 86,
nays none, absent and not voting 14, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Faircloth, Fleischauer, Frederick, Hatfield,
Iaquinta, Leggett, Morgan, Perdue, Romine, Schadler, Shelton and Webb.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 210) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
returned to the Seventh Order of Business for the purpose of introducing a resolution.
Resolutions Introduced
Mr. Speaker, Mr. Kiss, offered the following resolution:
H. C. R. 202 - "Providing for an adjournment of the Legislature until the 29th day of
June, 2003, unless reconvened prior thereto by a majority vote of the Committee on Rules of the
House of Delegates and a majority vote of the Committee on Rules of the Senate."
Resolved by the Legislature of West Virginia:
That when adjournment is taken by the respective houses on today, such adjournment
shall be until 3:00 p.m., on the 29th day of June, 2003, unless the Legislature be called to
reconvene prior thereto by a majority vote of the Committee on Rules of the House of Delegates
and by a majority vote of the Committee on Rules of the Senate.
* * * * * * * * * *
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
resolution (H. C. R. 202) to a committee was dispensed with, and it was taken up for immediate
consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
At 5:00 p.m., on motion of Delegate Staton, the House of Delegates recessed for twenty
minutes and reconvened at the expiration of the recess.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of
Delegates and the passage, as amended, to take effect from passage, of
S. B. 2013, Relating to workers' compensation generally.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendments, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 202, Providing for an adjournment of the Legislature until the 30th day of June,
2003.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, line six, by striking out "29th" and inserting in lieu thereof "30th".
And,
By amending the title of the resolution to read as follows:
H. C. R. 202 - "Providing for an adjournment of the Legislature until the 30th day of
June, 2003, unless reconvened prior thereto by a majority vote of the Committee on Rules of the
House of Delegates and a majority vote of the Committee on Rules of the Senate."
On motion of Delegate Staton, the House of Delegates concurred in the Senate
amendment.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence were
granted Delegates Cann, Faircloth, Frederick, Hatfield, Iaquinta, Perdue, Schadler, Shelton and
Webb.
Miscellaneous Business
Delegate Anderson asked and obtained unanimous consent that the remarks of Delegate
Blair regarding the passage of S. B. 2013 be printed in the Appendix to the Journal.
Delegate Blair asked and obtained unanimous consent that the remarks of Delegate
Carmichael regarding S. B. 2007 be printed in the Appendix to the Journal.
Delegate Blair asked and obtained unanimous consent that the remarks of Delegate
Sobonya regarding Workers' Compensation be printed in the Appendix to the Journal.
At 5:30 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 3:00
p.m., Monday, June 30, 2003, pursuant to H. C. R. 202.