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one thousand nine hundred thirty-one, as amended, be repealed; that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repealed; that section seven, article four-a of said chapter be
repealed; that section thirty-three-d, article three, chapter five-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:
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 three of the
appointed voting members may serve without a baccalaureate degree
from an accredited college or university if the member has a
minimum of fifteen years experience in his or her field of
expertise as required in subdivision (2) of this subsection;
(2) Each shall have a minimum of ten years experience in his
or her field of expertise. The governor shall consider the
following guidelines when determining whether potential candidates
meet the qualifications of this subsection: expertise in insurance
claims management; expertise in insurance underwriting; expertise
in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two
hundred beneficiaries or three hundred million dollars; expertise in workers' compensation management; expertise in loss prevention
and rehabilitation; expertise in occupational medicine demonstrated
by licensure as a medical doctor in West Virginia and experience,
board certification or university affiliation; or expertise in
similar areas of endeavor.
(3) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at
least one shall be an attorney with financial management
experience; and one shall be an academician holding an advanced
degree from an accredited college or university in business,
finance, insurance or economics.
(e) Each member of the board shall have a fiduciary
responsibility to the commission and all workers' compensation
funds and shall assure the proper administration of the funds in a
fiscally responsible manner.
(f) The board shall elect one member to serve as chairperson.
The chairperson shall serve for a one-year term and may serve more
than one consecutive term. The board shall hold meetings at the
request of the chairperson or at the request of at least three of
the members of the board, but no less frequently than once every
three months. The chairperson shall determine the date and time of
each meeting. Six members of the board constitute a quorum for the
conduct of the business of the board. No vacancy in the membership
of the board shall impair the right of a quorum to exercise all the
rights and perform all the duties of the board. No action shall be taken by the board except upon the affirmative vote of six members
of the board.
(g) Notwithstanding any provision of article seven, chapter
six of this code to the contrary, the board shall establish the
salary of the executive director. The board shall establish a set
of performance measurements to evaluate the performance of the
executive director in fulfilling his or her duties as prescribed in
this chapter and shall annually rate the executive director's
performance according to the established measurements and may
adjust his or her annual salary in accordance with that performance
rating.
(h)(1) Each voting appointed member of the board shall receive
compensation of not more than three hundred fifty dollars per day
for each day during which he or she is required to and does attend
a meeting of the board.
(2) Each voting appointed member of the board is entitled to
be reimbursed for actual and necessary expenses incurred for each
day or portion thereof engaged in the discharge of official duties
in a manner consistent with guidelines of the travel management
office of the department of administration.
(i) Each member of the board shall be provided appropriate
liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the state board
of risk and insurance management established pursuant to article
twelve, chapter twenty-nine of this code.
(j) The board of managers shall:
(1) Review and approve, reject or modify recommendations from
the executive director for the development of overall policy for
the administration of this chapter;
(2) In consultation with the executive director, propose
legislation and establish operating guidelines and policies
designed to ensure the effective administration and financial
viability of the workers' compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are
proposed by the executive director for operation of the workers'
compensation system before the rules are filed with the secretary
of state. The rules adopted by the board are not subject to
sections nine through sixteen, inclusive, article three, chapter
twenty-nine-a of this code. The board shall follow the remaining
provisions of said chapter for giving notice to the public of their
actions and for holding hearings and receiving public comments on
the rules;
(4) In accordance with the laws, rules and regulations of West
Virginia and the United States government, establish and monitor
performance standards and measurements to ensure the timeliness and
accuracy of activities performed under the workers' compensation
laws and rules;
(5) Review and approve, reject or modify all classifications
of occupations or industries, premium rates and taxes,
administrative charges, rules and systems of rating, rating plans, rate revisions, deficit management and deficit reduction
assessments, and merit rating for employers covered by this
chapter. The executive director shall provide all information
required for the board's review;
(6) In conjunction with the executive director initiate,
oversee, and review all independent financial and actuarial reviews
of the commission. The board shall employ an internal auditor for
the purpose of examining internal compliance with the provisions of
this chapter. The internal auditor shall be employed directly by
the board. The internal auditor shall submit copies of all reports
prepared by the internal auditor for the board to the joint
committee on government and finance within five days of submitting
or making the report to the board, by filing the report with the
legislative librarian;
(7) Approve the allocation of sufficient administrative
resources and funding to efficiently operate the workers'
compensation system of West Virginia. To assure efficient
operation, the board shall direct the development of a plan for the
collections performed under section five-a, article two of this
chapter. The plan for collections shall maximize ratio of dollars
potentially realized by the collection proceeding to the dollars
invested in collection activity;
(8) Review and approve, reject or modify the budget prepared
by the executive director for the operation of the commission. The
budget shall include estimates of the costs and necessary expenditures of the commission in the discharge of all duties
imposed by this chapter as well as the cost of providing offices,
furniture, equipment and supplies to all commission officers and
employees;
(9) In consultation with the executive director, approve the
designation of health care providers to make decisions for the
commission regarding appropriateness of medical services;
(10) Require the workers' compensation commission to develop,
maintain and use an effective program of return-to-work services
for employers and workers;
(11) Require the workers' compensation commission to develop,
maintain and use thorough and efficient claims management
procedures and processes and fund management in accordance with the
generally accepted practices of the workers' compensation insurance
industry;
(12) Consider such other matters regarding the workers'
compensation system as the governor, executive director or any
member of the board may desire;
(13) Review and approve, reject or modify standards
recommended by the executive director to be considered by the
commission in making decisions on all levels of disability awards.
The standards should be established as an effective means to make
prompt, appropriate decisions relating to medical care and methods
to assist employees to return to work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Employ sufficient professional and clerical staff to
carry out the duties of the board. Employees of the board shall
serve at the will and pleasure of the board. The board's employees
are exempt from the salary schedule or pay plan adopted by the
division of personnel; and
(16) 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; study the comparative desirability of
alternative permanent disability administration in those other
states, and alternative deficit management strategies, including
non-traditional funding;
study the feasibility of authorizing a
plan of multiple rate classifications by individual employers for
employers who have different or seasonally diverse job
classifications and duties: Provided, That no such plan may be implemented until adopted by the Legislature; and, in consultation
with the director of the division of personnel, study the
feasibility of establishing a work incentive program to place
unemployed qualified recipients of workers' compensation benefits
in state or local government employment.
On or before the first
day of January, two thousand six, the commission shall report the
findings and conclusions of each study, the plans and proposals,
and any recommendations the commission may have as a result of the
study to the joint committee on government and finance.
§23-1-1b. Executive director; qualifications; oath; seal; removal;
powers and duties.
(a) The executive director shall be hired by the board of
managers for a term not to exceed five years and may be retained
based on overall performance for additional terms: Provided, That
the executive director of the division of workers' compensation on
the date of the enactment of this section in the year two thousand
three shall serve as the initial executive director of the
commission and shall receive the same salary and benefits as
received as the executive director of the division of workers'
compensation through and until the board of managers establishes
his or her salary and benefits as the executive director of the
commission. The position of executive director shall be full-time
employment. Except for the initial executive director, candidates
for the position of executive director shall have a minimum of a
bachelor of arts or science degree from an accredited four-year college or university in one or more of the following disciplines:
Finance; economics; insurance administration; law; public
administration; accounting; or business administration. Candidates
for the position of executive director will be considered based on
their demonstrated education, knowledge and a minimum of ten years'
experience in the areas of workers' compensation, insurance company
management, administrative and management experience with an
organization comparable in size to the workers' compensation
commission, or any relevant experience which demonstrates an
ability to effectively accomplish the purposes of this chapter.
(b) The executive director shall not be a candidate for or
hold any other public office or trust, nor shall he or she be a
member of a political committee. If he or she becomes a candidate
for a public office or becomes a member of a political committee,
his or her office as executive director shall be immediately
vacated.
(c) The executive director, before entering upon the duties of
his or her office, shall take and subscribe to the oath prescribed
by section five, article IV of the state constitution. The oath
shall be filed with the secretary of state.
(d) The executive director shall have an official seal for the
authentication of orders and proceedings, upon which seal shall be
engraved the words "West Virginia Workers' Compensation Commission"
and any other design prescribed by the board of managers. The
courts in this state shall take judicial notice of the seal of the commission and in all cases copies of orders, proceedings or
records in the office of the West Virginia workers' compensation
commission are equal to the original in evidence.
(e) The executive director shall not be a member of the board
of managers.
(f) The executive director shall serve until the expiration of
his or her term, resignation or until removed by a two thirds vote
of the full board of managers. The board of managers and the
executive director may, by agreement, terminate the term of
employment at any time.
(g) The executive director shall have overall management
responsibility and administrative control and supervision within
the workers' compensation commission and has the power and duty to:
(1) Establish, with the approval of the board of managers, the
overall administrative policy of the commission for the purposes of
this chapter;
(2) Employ, direct and supervise all employees required in the
connection with the performance of the duties assigned to the
commission by this chapter and fix the compensation of the
employees in accordance with the provisions of article six, chapter
twenty-nine of this code: Provided, That the executive director
shall identify which members of the staff of the workers'
compensation commission shall be exempted from the salary schedules
or pay plan adopted by the state personnel board, and further
identify such staff members by job classification or designation, together with the salary or salary ranges for each such job
classification or designation and shall file this information with
the director of the division of personnel no later than the thirty-
first day of December, two thousand three, and thereafter as
changes are made or at least annually;
(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 shall propose for promulgation by
the board of managers rules for determining the existence of fraud
and abuse as it relates to the workers' compensation system in West
Virginia;
(ii) The fraud and abuse unit will be responsible for the
initiation, development, review, and proposal for promulgation by
the board of managers of rules regarding the existence of fraud and
abuse as it relates to the workers' compensation system in West
Virginia;
(iii) The fraud and abuse unit will take action to identify
and prevent and discourage any and all fraud and abuse;
(iv) The fraud and abuse unit, in cases of criminal fraud, has
the authority to review and prosecute those cases for violations of
sections twenty-four-e, twenty-four-f, twenty-four-g and twenty-
four-h, article three, chapter sixty-one of this code, as well as
any other criminal statutes that may be applicable. In addition
the fraud and abuse unit not only has the authority to prosecute
and refer cases involving criminal fraud to appropriate state
authorities for prosecution, but it also has the authority, and is
encouraged, to cooperate with the appropriate federal authorities for review and possible prosecution, by either state or federal
agencies, of cases involving criminal fraud concerning the workers'
compensation system in West Virginia;
(v) The fraud and abuse unit, in cases which do not meet the
definition of criminal fraud, but would meet a reasonable person's
definition of an abuse of the workers' compensation system, shall
take the appropriate action to discourage and prevent such abuse.
Furthermore, the fraud and abuse unit shall assist the commission
to develop evidence of fraud or abuse which can be used pursuant to
the provisions of this chapter to suspend, and where appropriate,
terminate, a claimant's benefits. In addition, evidence developed
pursuant to these provisions can be used in hearings before the
office of judges on protests to commission decisions terminating,
or not terminating, temporary total disability benefits; and
(vi) The fraud and abuse unit, is expressly authorized to
initiate investigations and participate in the development of, and
if necessary, the prosecution of any health care provider,
including a provider of rehabilitation services, alleged to have
violated the provisions of section three-c, article four of this
chapter.
(C) Specific personnel, designated by the inspector general,
shall be permitted to operate vehicles owned or leased for the
state displaying Class A registration plates.
(D) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the inspector general may carry handguns in the course of their official duties after
meeting specialized qualifications established by the governor's
committee on crime, delinquency and correction, which
qualifications shall include the successful completion of handgun
training provided to law-enforcement officers by the West Virginia
state police: Provided, That nothing in this subsection shall be
construed to include the personnel so designated by the inspector
general to carry handguns within the meaning of the term
law-enforcement official as defined in section one, article twenty-
nine, chapter thirty of this code.
(E) The fraud and abuse unit is not subject to any requirement
of article nine-a, chapter six of this code, and the investigations
conducted by the fraud and abuse unit and the materials placed in
the files of the unit as a result of any such investigation are
exempt from public disclosure under the provisions of chapter
twenty-nine-b of this code.
(F) In the event that a final judicial decision adjudges that
the statewide prosecutorial powers vested by this subdivision in
the fraud and abuse unit may only be exercised by a public official
other than an employee of the fraud and abuse unit, then to that
extent the provisions of this subdivision vesting statewide
prosecutorial power shall thenceforth be of no force and effect,
the remaining provisions of this subdivision shall continue in full
force and effect, and prosecutions hereunder may only be exercised
by the prosecuting attorneys of this state and their assistants or special assistant prosecuting attorneys appointed as provided by
law.
(23) Enter into interagency agreements to assist in exchanging
information and fulfilling the default provisions of this chapter;
(24) Notwithstanding any provision of this code to the
contrary, the executive director, under emergency authorization:
(A) May expend up to fifty thousand dollars for purchases of
and may contract for goods and services without securing
competitive bids. This emergency spending authority expires on the
first day of July, two thousand five; and
(B) May expend such sums as the executive director determines
are necessary for professional services, contracts for the purchase
of an automated claims administration system and associated
computer hardware and software in the administration of claims for
benefits made under provisions of this chapter, and contracts for
technical services and related services necessary to develop,
implement and maintain the system and associated computer hardware
and software. The provisions of article three, chapter five-a of
this code, relating to the purchasing division of the department
administration, shall not apply to these contracts. The director
shall award the contract or contracts on a competitive basis. This
emergency spending authority expires on the thirty-first day of
December, two thousand six;
(25) Establish an employer violator system to identify
individuals and employers who are in default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the
commission. The employer violator system shall prohibit violators
who own, control or have a ten percent or more ownership interest,
or other ownership interest as may be defined by the commission, in
any company from obtaining or maintaining any license, certificate
or permit issued by the state until the violator has paid all
moneys owed to the commission or has entered into and remains in
compliance with a repayment agreement;
(26) Propose the designation of health care providers to make
decisions for the commission regarding appropriateness of medical
services; 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
and the
availability of health care to injured workers 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.
(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.
§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,
payments, allowances, or reduced
premium costs or other charges
, 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.
(3) If an employer is a limited liability company, the
employer may elect not to include as an "employee" within this
chapter a total of no more than four persons, each of whom are acting in the capacity of manager, officer or member of the
company.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the 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 require the establishment of a program
under which the commissioner may grant discounts on premium rates
for employers who meet either of the following requirements:
_____(A) Have not incurred a compensable injury for one year or
more and who maintain an employee safety committee or similar
organization and make periodic safety inspections of the workplace.
_____(B) Successfully complete a loss prevention program, including
establishment of a drug-free workplace, prescribed by the
commission's safety and loss control office and conducted by the
commission or by any other person approved by the commission;
(3) The rule shall be consistent with the duty of the
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;
(4) The rule shall be consistent with generally accepted
accounting principles;
(5) The rule shall be consistent with classification and rate-
making methodologies found in the insurance industry; and
(6) The rule shall be consistent with the principles of
promoting more effective workplace health and safety programs as
contained in article two-b of this chapter.
(b) 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:
Provided, That the portion of the rate increase
attributable to claims management incentive adjustments, as
determined by the compensation programs performance council for
fiscal year two thousand four prior to the effective date of the
amendment and reenactment of this section by the Legislature in the
year two thousand three, shall not be considered a part of the
employer's premium taxes and shall not be subject to collection by
the commission.
_____(e) Claims management incentive adjustments, whether imposed
in a manner that would result in either a debit or a credit to any
employer's account, shall not be considered by the board of managers in its future rate determinations.
§23-2-5. Application; payment of premium taxes; gross wages;
payroll report; deposits; delinquency; default; reinstatement;
payment of benefits; notice to employees; criminal provisions;
penalties.
(a) For the purpose of creating a workers' compensation fund,
each employer who is required to subscribe to the fund or who
elects to subscribe to the fund shall pay premium taxes calculated
as a percentage of the employer's gross wages payroll as defined by
the commission at the rate determined by the 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 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.
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.
(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.
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.
(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 three days after injury.
If the period of disability does not last longer than three
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 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 effective date of the amendment and
reenactment of this section in the year two thousand three
:
Provided, That the provisions of sections one through eight,
inclusive, article four-a of this chapter shall be applied
thereafter to all 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 a single occupational
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.
(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.
§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.
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.
(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 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
shall, upon appropriation of the Legislature, transfer an
amount not to exceed fifty
million dollars from the workers'
compensation fund to the coal-workers' pneumoconiosis fund for
expenditure to meet those obligations.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-2. Employers' excess liability fund established.
(a) To provide insurance coverage for employers subject to
this chapter who may be subjected to liability for any excess of
damages over the amount received or receivable under this chapter,
the division commission may continue the fund known as the
employers' excess liability fund, which fund shall be separate from the workers' compensation fund. The employers' excess liability
fund shall consist of premiums paid thereto to it by employers who
may voluntarily elect to subscribe to the fund for coverage of
potential liability to any person who may be entitled to any excess
of damages over the amount received or receivable under this
chapter.
(b) The commissioner and the compensation programs performance
council are authorized to board of managers may provide for, by the
promulgation of a rule pursuant to subdivisions (b) and (c),
section seven, article three, chapter twenty-one-a of this code
section one-a, article one of this chapter, the continuance,
abolition or sale of the employers' excess liability fund
established by section one of this article. In the event that the
fund is to be sold, the sale shall be conducted through the
solicitation of competitive bids. Any funds that may remain after
the sale or abolition of the employers' excess liability fund shall
be paid into and become a part of the workers' compensation fund to
be used for the purposes of that fund. In the event that the
employers' excess liability fund program is abolished and the
remaining liabilities of that program exceed the amount retained in
the employers' excess liability fund, such the excess liability
including the costs of administration shall be paid for from the
workers' compensation fund.
§23-4C-3. Payment of excess damages from fund.
Upon receipt of a final order of a court determining the liability under section two, article four of this chapter of a
subscribing employer and the amount of the excess of damages over
the amount received or receivable under this chapter, the
commissioner executive director shall make disbursements from the
employers' excess liability fund in such the amounts and to such
the persons as such directed by the final order may direct. In the
event of a proposed settlement of a disputed claim against a
subscribing employer, the commissioner executive director, upon
approving the settlement upon petition by the subscribing employer,
shall make disbursements from the employers' excess liability fund
in such the amounts and to such the persons as specified 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 two years from the date of entry of an order unless
the order is sooner affected by appellate action: Provided, That
corrective actions in the case of fraud may be taken at any time.
__________(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.
§23-5-11. 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 shall appoint, from names submitted by the
"workers' compensation board of review nominating committee", with
the advice and consent of the Senate, three qualified attorneys to
serve as judges of the board of review. If the governor does not select a nominee for any vacant position from the names provided by
the nominating committee, he shall notify the nominating committee
of that circumstance and the committee shall provide additional
names for consideration by the governor.
A member of the board of
review may be removed by the governor for official misconduct,
incompetence, neglect of duty, gross immorality, or malfeasance and
then only after notice and opportunity to respond and present
evidence. No more than two of the members of the board may be of
the same political party.
______________(e) The nominating committee shall consist of the following
members: (1) the president of the West Virginia state bar who will
serve as the chairperson of the committee; (2) an active member of
the West Virginia state bar workers' compensation committee
selected by the major trade association representing employers in
this state; (3) an active member of the West Virginia state bar
workers' compensation committee selected by the highest ranking
officer of the major employee organization representing workers in
this state; (4) the dean of the West Virginia university school of
law; and (5) the chairman of the judicial investigation committee.
______________(f) The nominating committee is responsible for reviewing and
evaluating candidates for possible appointment to the board of
review by the governor. In reviewing candidates, the nominating
committee may accept comments from and request information from any
person or source.
______________(g) Each member of the nominating committee may submit up to three names of qualified candidates for each position on the board
of review
: Provided, That the member of the nominating committee
selected by the major trade organization representing employers of
this state shall submit at least one name of a qualified candidate
for each position on the board who either are, or who represent,
small business employers of this state.
After careful review of the
candidates, the committee shall select a minimum of one candidate
for each position on the board.
______________(h) No later than the first day of November, two thousand
three, the nominating committee shall present to the governor its
list of candidates for the initial board of review. The governor
shall appoint the initial board no later than the thirty-first day
of December, two thousand three: Provided, That 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
.
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 chief judge 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 judge shall promptly determine the
matter and make an award in accordance with his or her
determination.
______________(s) The award shall become a part of the commission file. A
copy of the award shall be sent forthwith by mail to all parties in
interest.
______________(t) The award is final when entered. The award shall contain
a statement explaining the rights of the parties to an appeal to
the board of review and the applicable time limitations involved.
______________(u) The board shall submit a budget to the executive director
for inclusion in the budget for the workers' compensation
commission sufficient to adequately provide for the administrative
and other operating expenses of the board.
______________(v) The board shall report monthly to the board of managers on
the status of all claims on appeal.
§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.
§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.;