A message from The Clerk of the House of Delegates announced
the rejection by that body of the committee of conference report
and the subsequent concurrence by that body in the Senate
amendments, as amended by the House of Delegates, passage as
amended with its House of Delegates amended title, to take effect
from passage, and requested the concurrence of the Senate in the
House of Delegates amendments to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2120, Relating to workers'
compensation generally.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page three, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article one-a; that sections
four, five and nine, article two of said chapter be amended and
reenacted; that section one, article three of said chapter be
amended and reenacted; that said article be further amended by
adding thereto a new section, designated section six; that sections
one-c, one-d and six, article four of said chapter be amended and
reenacted; and that article four-b of said chapter be amended by adding thereto a new section, designated section eight-b, all to
read as follows:
ARTICLE 1A. WORKERS' COMPENSATION DEFICIT REDUCTION ACT.
§23-1A-1. Short title; intent and findings.
The amendments to this chapter enacted during the regular
session of the Legislature in the year two thousand three shall be
known as the "Workers' Compensation Deficit Reduction Act".
§23-1A-2. Legislative intent and findings.
It is the intent of the Legislature that the amendments to
this chapter enacted during the regular session of the Legislature
in the year two thousand three be applied from the date upon which
the enactment is made effective by the Legislature. The
Legislature finds that a deficit exists in the workers'
compensation fund of such critical proportions that it constitutes
an imminent threat to the immediate and long-term solvency of the
fund and that, although provisions of the enactment may appear to
be inconsistent with the provisions of the decision of the West
Virginia supreme court of appeals in the case of State ex rel.
Blankenship v. Richardson, the Legislature finds that an emergency
exists as a result of the combined effect of this deficit, other
state budgetary deficits and liabilities, and other grave social
and economic circumstances currently confronting the state, and
that, unless the changes provided by the enactment of the
amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the fiscal
stability of this state will suffer irreparable harm. Accordingly,
the Legislature finds that the need of the citizens of this state
for the protection of state treasury and the solvency of the
workers' compensation fund requires the limitations on any
expectations that may have arisen from prior enactments of this
chapter.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-4. Classification of industries; rate of premiums; authority
to adopt various systems; accounts.
(a) The commissioner, in conjunction with the compensation
programs performance council, is authorized to establish by rule a
system for determining the classification and distribution into
classes of employers subject to this chapter, a system for
determining rates of premium taxes applicable to employers subject
to this chapter, a system of multiple policy options with criteria
for subscription thereto and criteria for an annual employer's
statement providing both benefits liability information and rate
determination information.
(1) In addition, the rule shall provide for, but not be
limited to:
(A) Rate adjustments by industry or individual employer,
including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the
quarter in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Such further matters that are necessary and consistent
with the goals of this chapter.
(2) The rule shall be consistent with the duty of the
commissioner and the compensation programs performance council to
fix and maintain the lowest possible rates of premium taxes
consistent with the maintenance of a solvent workers' compensation
fund and the reduction of any deficit that may exist in such fund
and in keeping with their fiduciary obligations to the fund.
(3) The rule shall be consistent with generally accepted
actuarial and accounting principles.
(4) The rule shall be consistent with classification and rate-
making methodologies found in the insurance industry. and
(5) The rule shall be consistent with the principles of
promoting more effective workplace health and safety programs as
contained in article two-b of this chapter.
(6) Prior to the first day of July, two thousand three, the
commissioner shall obtain the written professional opinion of a
qualified actuary that certifies, as to each classification of
employers and in the aggregate, the lowest possible rates of
premium taxes or other assessments applicable to employers subject
to this chapter that are consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit
that may exist in such fund within a period certified as reasonable
by the actuary, such period to be subject to the approval of the
compensation programs performance council. Beginning the first day
of July, two thousand three, the commissioner shall fix and
maintain the rates of those premium taxes at the amounts certified
by the actuary. Thereafter, the rates of premium taxes or other
assessments applicable to employers subject to this chapter shall
be those similarly certified in the written professional opinion of
a qualified actuary. The professional written opinion of an
actuary shall be obtained by the commissioner at least annually
prior to the first day of July of each year. It shall be a
violation of this chapter to:
_____Fix and maintain the rate of any premium tax other than at the
rate certified by the actuary;
_____Fail to obtain the opinion of an actuary as required by this
section; or
_____Permit a rate of premium tax to be maintained at any rate that
is not the rate certified by the most recent professional opinion
of an actuary as required by this section.
(b) Notwithstanding any other provision of this chapter to the
contrary, the compensation programs performance council may elect
to premise its premium tax determination methodology on the
aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election
may apply to all industrial classifications or to less than all.
If this election is made, then in all instances in which this
chapter refers to gross wage reports for the purpose of premium tax
determination such references shall be taken to mean a report of
the number of hours so worked.
(c) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of July, one
thousand nine hundred ninety-six. Until the rule is finally
promulgated the prior provisions of this section as found in
chapter one hundred seventy-one of the acts of the Legislature, one
thousand nine hundred ninety-three, shall remain in effect.
(d) (c) In accordance with generally accepted accounting
principles, the workers' compensation division shall keep an
accurate accounting of all money or moneys earned, due and received
by the workers' compensation fund, and of the liability incurred
and disbursements made against the same; and an accurate account of
all money or moneys earned, due and received from each individual
subscriber, and of the liability incurred and disbursements made
against the same.
§23-2-5. Application; payment of premium taxes; gross wages;
payroll report; deposits; delinquency; default; reinstatement;
payment of benefits; notice to employees; criminal provisions;
penalties.
(a) For the purpose of creating a workers' compensation fund,
each employer who is required to subscribe to the fund or who
elects to subscribe to the fund shall pay premium taxes calculated
as a percentage of the employer's gross wages payroll at the rate
determined by the workers' compensation division and then in
effect. At the time each employer subscribes to the fund, the
application required by the division shall be filed and a premium
deposit equal to the first quarter's estimated premium tax payment
shall be remitted. The minimum quarterly premium to be paid by any
employer shall be twenty-five dollars.
(1) Thereafter, premium taxes shall be paid quarterly on or
before the last day of the month following the end of the quarter
and shall be the prescribed percentage of the entire gross wages of
all employees, from which net payroll is calculated and paid,
during the preceding quarter. The division may permit require
employers who qualify under the provisions of rules promulgated by
the compensation programs performance council to report gross wages
and pay premium taxes at other intervals.
(2) Every subscribing employer shall make a gross wages
payroll report to the division for the preceding reporting period.
The report shall be on the form or forms prescribed by the division
and shall contain all information required by the division.
(3) After subscribing to the fund, each employer shall remit
with each premium tax payment an amount calculated to be sufficient to maintain a premium deposit equal to the premium payment for the
previous reporting period. The division may reduce the amount of
the premium deposit required from seasonal employers for those
quarters during which employment is significantly reduced. If the
employer pays premium tax on a basis other than quarterly, the
division may require the deposit to be based upon some other time
period. The premium deposit shall be credited to the employer's
account on the books of the division and used to pay premium taxes
and any other sums due the fund when an employer becomes delinquent
or in default as provided in this article.
(4) All premium taxes and premium deposits required by this
article to be paid shall be paid by the employers to the division,
which shall maintain a record of all sums so received. Any such
sum mailed to the division shall be deemed to be received on the
date the envelope transmitting it is postmarked by the United
States postal service. All sums received by the division shall be
deposited in the state treasury to the credit of the workers'
compensation division in the manner now prescribed by law.
(5) The division may encourage employer efforts to create and
maintain safe workplaces, to encourage loss prevention programs,
and to encourage employer-provided wellness programs, through the
normal operation of the experience rating formula, seminars and
other public presentations, the development of model safety
programs and other initiatives as may be determined by the commissioner and the compensation programs performance council.
(b) Failure of an employer to timely pay premium taxes or any
other assessment, to timely file a payroll report or to maintain an
adequate premium deposit shall cause the employer's account to
become delinquent. No employer will be declared delinquent or be
assessed any penalty therefor if the division determines that such
delinquency has been caused by delays in the administration of the
fund. The division shall, in writing, within sixty days of the end
of each quarter or other applicable reporting period notify all
delinquent employers of their failure to timely pay premium taxes
or other assessments, to timely file a payroll report or other
report or to maintain an adequate premium deposit. Each employer
who shall fail to timely file any quarterly payroll report or other
report or timely pay the premium tax or other assessment due with
such report, or both, for any quarter commencing on and after the
first day of July, one thousand nine hundred ninety-five, shall pay
a late reporting or payment penalty of the greater of fifty dollars
or a sum obtained by multiplying the premium tax or other
assessment due with such report by the penalty rate applicable to
that quarter reporting period. The penalty rate to be used in a
workers' compensation division's fiscal year shall be calculated
annually on the first day of each fiscal year. The penalty rate
used to calculate the penalty for each quarter in a fiscal year is
the quotient, rounded to the nearest higher whole number percentage rate, obtained by dividing the sum of the prime rate plus four
percent by four. The prime rate shall be the rate published in The
Wall Street Journal on the last business day of the division's
prior fiscal year reflecting the base rate on corporate loans
posted by at least seventy-five percent of the nation's thirty
largest banks. Such late penalty shall be paid with the most
recent quarter's report and payment and is due when that quarter's
report and payment are filed. If such late penalty is not paid
when due, the same may be charged to and collected by the division
from the employer's premium deposit account or otherwise as
provided for by law. The notification shall demand the filing of
the delinquent payroll report and payment of delinquent premium
taxes or other assessment, the penalty for late reporting or
payment of premium taxes, assessment or premium deposit, the
interest penalty and an amount sufficient to maintain the premium
deposit, before the end of the third month following the end of the
preceding quarter reporting period. Interest shall accrue and be
charged on the delinquent premium payment and premium deposit
pursuant to section thirteen of this article.
(c) Whenever the division notifies an employer of the
delinquent status of its account, the notification shall explain
the legal consequence of subsequent default by an employer required
to subscribe to the fund and the legal consequences of termination
of an electing employer's account.
(d) Failure by the employer, who is required to subscribe to
the fund and who fails to resolve the delinquency within the
prescribed period, shall place the account in default and shall
deprive such default employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer shall be liable as provided in section eight of
this article. The default employer's liability under said sections
shall be retroactive to midnight of the last day of the month
following the end of the quarter for which the delinquency occurs.
The division shall notify the default employer of the method by
which the employer may be reinstated with the fund. The division
shall also notify the employees of such employer by written notice
as hereinafter provided for in this section.
(e) Failure by any employer, who voluntarily elects to
subscribe, to resolve the delinquency within the prescribed period
shall place the account in default and shall automatically
terminate the election of such employer to pay into the workers'
compensation fund and shall deprive such employer and the employees
of the default elective employer of the benefits and protection
afforded by this chapter, including section six of this article,
and such employer shall be liable as provided in section eight of
this article. The default employer's liability under said section
shall be retroactive to midnight of the last day of the month
following the end of the quarter for which the delinquency occurs. Employees who were the subject of the default employer's voluntary
election to provide them the benefits afforded by this chapter
shall have such protection terminated at the time of their
employer's default.
(f) (1) Except as provided for in subdivision (3) of this
subsection, any employer who is required to subscribe to the fund
and who is in default on the effective date of this section or who
subsequently defaults, and any employer who has elected to
subscribe to the fund and who defaults and whose account is
terminated prior to the effective date of this section or whose
account is subsequently terminated, shall be restored immediately
to the benefits and protection of this chapter only upon the filing
of all delinquent payroll and other reports required by the
division and payment into the fund of all unpaid premiums, an
adequate premium deposit, accrued interest and the penalty for late
reporting and payment. Interest shall be calculated as provided
for by section thirteen of this article.
The division shall not have the authority to waive either
premium or accrued interest. The provisions of section seventeen
of this article apply to any action or decision of the division
under this section.
(2) The division shall have the authority to restore a
defaulted or terminated employer through a reinstatement agreement.
Such reinstatement agreement shall require the payment in full of all premium taxes, premium deposits, the penalty for late reporting
and payment, past accrued interest and future interest calculated
pursuant to the provisions of section thirteen of this article.
Notwithstanding the filing of a reinstatement application or the
entering into of a reinstatement agreement, the division is
authorized to file a lien against the employer as provided by
section five-a of this article. In addition, entry into a
reinstatement agreement is discretionary with the division. Such
discretion shall be exercised in keeping with the fiduciary
obligations owed to the workers' compensation fund. Should the
division decline to enter into a reinstatement agreement and should
the employer not comply with the provisions of subdivision (1) of
this subsection, then the division may proceed with any of the
collection efforts provided for by section five-a of this article
or as otherwise provided for by this code. Applications for
reinstatement shall: (A) Be made upon forms prescribed by the
division; (B) include a report of the gross wages payroll of the
employer which had not been reported to the division during the
entire period of delinquency and default, which gross wages
information shall be certified by the employer or its authorized
agent; and (C) include a payment of a portion of the liability
equal to one half of one percent of the gross payroll during the
period of delinquency and default or equal to another portion of
the liability as may be determined from time to time by rule but not to exceed the amount of the entire liability due and owing for
the period of delinquency and default. An employer who applies for
reinstatement shall be entitled to the benefits and protection of
this chapter on the day a properly completed and acceptable
application which is accompanied by the application payment is
received by the division: Provided, That if the division
reinstates an employer subject to the terms of a reinstatement
agreement, the subsequent failure of the employer to make scheduled
payments or to pay accrued or future interest in accordance with
the reinstatement agreement or to timely file current quarterly
reports and to pay current quarterly premiums within the month
following the end of the quarter for which the report and payment
are due, or to otherwise maintain its account in good standing or,
if the reinstatement agreement does not require earlier restoration
of the premium deposit, to restore the premium deposit to the
required amount by the end of the repayment period shall cause the
reinstatement application and the reinstatement agreement to be
null, void and of no effect, and the employer shall be denied the
benefits and protection of this chapter effective from the date
that such employer's account originally became delinquent.
(3) Any employer who fails to maintain its account in good
standing with regard to subsequent premium taxes and premium
deposits after filing an application for reinstatement and prior to
the final resolution of an application for reinstatement by entering into a reinstatement agreement or by payment of the
liability in full as provided for in subdivision (1) of this
subsection shall cause the reinstatement application to be null,
void and of no effect, and the employer shall be denied the
benefits and protection of this chapter effective from the date
that such employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a reinstatement agreement, the division may then make
and continue with any of the collection efforts provided for by
this chapter or elsewhere in this code even if the employer files
another reinstatement application.
(g) With the exception noted in subsection (h), section one of
this article, no employee of an employer required by this chapter
to subscribe to the workers' compensation fund shall be denied
benefits provided by this chapter because the employer failed to
subscribe or because the employer's account is either delinquent or
in default.
(h) (1) The provisions of this section shall not deprive any
individual of any cause of action which has accrued as a result of
an injury or death which occurred during any period of delinquency
not resolved in accordance with the provisions of this article, or
subsequent failure to comply with the terms of the repayment
agreement.
(2) Upon withdrawal from the fund or termination of election of any employer, the employer shall be refunded the balance due the
employer of its deposit, after deducting all amounts owed by the
employer to the workers' compensation fund and other agencies of
this state, and the division shall notify the employees of such
employer of said termination in such manner as the division may
deem best and sufficient.
(3) Notice to employees in this section provided for shall be
given by posting written notice that the employer is defaulted
under the compensation law of West Virginia, and in the case of
employers required by this chapter to subscribe and pay premiums to
the fund, that the defaulted employer is liable to its employees
for injury or death, both in workers' compensation benefits and in
damages at common law or by statute; and in the case of employers
not required by this chapter to subscribe and pay premiums to the
fund, but voluntarily electing to do so as herein provided, that
neither the employer nor the employees of such employer are
protected by said laws as to any injury or death sustained after
the date specified in said notice. Such notice shall be in the
form prescribed by the division and shall be posted in a
conspicuous place at the chief works of the employer, as the same
appear in records of the division. If said chief works of the
employer cannot be found or identified, then said notices shall be
posted at the front door of the courthouse of the county in which
said chief works are located, according to the division's records. Any person who shall, prior to the reinstatement of said employer,
as hereinbefore provided for, or prior to sixty days after the
posting of said notice, whichever shall first occur, remove, deface
or render illegible said notice shall be guilty of a misdemeanor
and, upon conviction thereof, shall be fined one thousand dollars,
and said notice shall state this provision upon its face. The
division may require any sheriff, deputy sheriff, constable or
other official of the state of West Virginia, who may be authorized
to serve civil process, to post such notice and to make return
thereof of the fact of such posting to the division, and any
failure of such officer to post any notice within ten days after he
or she shall have received the same from the division, without just
cause or excuse, shall constitute a willful failure or refusal to
perform a duty required of him or her by law within the meaning of
section twenty-eight, article five, chapter sixty-one of this code.
Any person actually injured by reason of such failure shall have an
action against said official, and upon any official bond he or she
may have given, for such damages as such person may actually have
incurred, but not to exceed, in the case of any surety upon said
bond, the amount of the penalty of said bond. Any official posting
said notice as herein required shall be entitled to the same fee as
is now or may hereafter be provided for the service of process in
suits instituted in courts of record in the state of West Virginia,
which fee shall be paid by the division out of any funds at its disposal, but shall be charged by the division against the account
of the employer to whose delinquency such notice relates.
§23-2-9. Election of employer to be self-insured and to provide
own system of compensation; exceptions; catastrophe coverage;
self-administration; regulation of self-insurers.
(a) Notwithstanding any provisions of this chapter to the
contrary, the following types of employers may apply for permission
to self-insure their workers' compensation risk including their
risk of catastrophic injuries. Except as provided for in subsection
(e) of this section, no employer may self-insure its second injury
risk.
(1) The types of employers are:
(A) Any employer who is of sufficient capability and financial
responsibility to ensure the payment to injured employees and the
dependents of fatally injured employees of benefits provided for in
this chapter at least equal in value to the compensation provided
for in this chapter; or
(B) Any employer of such capability and financial
responsibility who maintains its own benefit fund or system of
compensation to which its employees are not required or permitted
to contribute and whose benefits are at least equal to value to
those provided for in this chapter.
(2) In order to be approved for self-insurance status, the
employer must:
(A) Have an effective health and safety program at its
workplace; and
(B) Provide security or bond in an amount or form, or in
amount and form, to be determined by the division with concurrence
of the compensation programs performance council, and which shall
balance the employer's financial condition based upon an analysis
of its audited financial statements and the full accrued value of
future claim liability based upon generally accepted actuarial and
accounting principles of the employer's existing and expected
liability. and
(C) Security or bond which may be in such form as the
commissioner and the compensation programs performance council
created pursuant to section one, article three, chapter twenty-one-
a of this code permits.
(3) Any employer whose record upon the books of the division
shows a liability, as determined on an accrued basis against the
workers' compensation fund incurred on account of injury to or
death of any of the employer's employees, in excess of premiums
paid by such employer, shall not be granted the right, individually
and directly or from such benefit funds or system of compensation,
to be self-insured until the employer has paid into the workers'
compensation fund the amount of such excess of liability over
premiums paid, including the employer's proper proportion of the
liability incurred on account of catastrophes or second injuries as defined in section one, article three of this chapter and charged
against such fund.
(4) Upon a finding that the employer has met all of the
requirements of this section, the employer may be permitted self-
insurance status. An annual review of each self-insurer's
continuing ability to meet its obligations and the requirements of
this section shall be made by the workers' compensation division.
This review shall include a redetermination of the amount of
security or bond which shall be provided by the employer. Failure
to provide any new amount or form of security or bond may, in the
division's discretion, cause the employer's self-insurance status
to be terminated. The security or bond provided by employers prior
to the second day of February, one thousand nine hundred ninety-
five, shall continue in full force and effect until the performance
of the employer's annual review and the entry of any appropriate
decision on the amount or form of the employer's security or bond.
(5) Whenever a self-insured employer shall furnish security or
bond, including replacement and amended bonds and other securities,
as security to ensure the employer's or guarantor's payment of all
obligations under this chapter for which the security or bond was
furnished, such security or bond shall be in the most current form
or forms approved and authorized by the division for use by the
employer or its guarantors, surety companies, banks, financial
institutions or others in its behalf for such purpose.
(b) Each self-insured employer shall, on or before the last
day of the first month of each quarter, file with the division a
certified statement of the total gross wages and earnings of all of
the employer's employees subject to this chapter for the preceding
quarter. Each self-insured employer shall pay into the workers'
compensation fund as portions of its self-insured premium tax or
other assessment:
(1) A sum sufficient to pay the employer's proper portion of
the expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of
the expense of claims for those employers who are in default in the
payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of the
expenses of the disabled workers' relief fund; and
(4) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter's payment of each of the
foregoing three sums; and
_____(5) A sum sufficient to pay the employer's deficit
amortization assessment.
(c) The required payments to the employer's injured employees
or dependents of fatally injured employees as benefits provided for
by this chapter including second injury benefits and catastrophe
injury benefits, if applicable, shall constitute the remaining
portion of the self-insurer's premium tax.
(1) If an employer defaults in the payment of any portion of
its self-insured premium taxes, the division may, in an appropriate
case, determine the full accrued value based upon generally
accepted actuarial and accounting principles of the employer's
liability including the costs of all awarded claims and of all
incurred but not reported claims. The amount so determined may
then, in an appropriate case, be assessed against the employer and
the division may demand and collect the present value of such
defaulted tax liability. Interest shall accrue upon the demanded
amount as provided for in section thirteen of this article until
the premium tax is fully paid. Payment of all amounts then due to
the division and to the employer's employees is a sufficient basis
for reinstating the employer to good standing with the fund.
(2) Such premium tax assessments are special revenue taxes
under and according to the provisions of state workers'
compensation law and are deemed to be tax claims, as priority
claims or administrative expense claims according to those
provisions under the law provided in the United States bankruptcy
code. In addition, as the same was previously intended by the
prior provisions of this section, this amendment and reenactment is
for the purpose of clarification of the taxing authority of the
workers' compensation division.
(d) Each self-insured employer shall elect whether or not to
self-insure its catastrophic injury risk as defined in subsection (c), section one, article three of this chapter. Nothing in this
chapter shall prohibit the self-insured employer from insuring its
catastrophic risk through a policy of excess insurance obtained
through a private insurance carrier.
(1) If the employer does not elect to self-insure its
catastrophic risk, then the employer shall pay premium taxes for
this coverage in the same manner as is provided for in section four
of this article and in rules adopted to implement such section.
Until such rules are adopted, the employer's premium taxes shall be
determined in accordance with the provisions of chapter one hundred
seventy-four, acts of the Legislature, one thousand nine hundred
ninety-one. If the employees of such an employer suffer injury or
death from a catastrophe, then the payment of the resulting
benefits shall be made from the catastrophe reserve of the surplus
fund provided for in subsection (b), section one, article three of
this chapter. Such an employer's catastrophic liability shall not
be included in the liabilities upon which the employer's security
or bond is determined in subsection (a) of this section.
(2) If an otherwise self-insured employer elects not to self-
insure insure its catastrophic risk, then the security or bond
required in subsection (a) of this section shall include the
liability for the catastrophic risk.
(e)(1) Any self-insured employer who was, prior to the second
day of February, one thousand nine hundred ninety-five, permitted to self-insure its second injury risk as defined in subsection (d),
section one, article three of this chapter, may elect to continue
to self-insure its second injury risk for so long as it meets the
requirements of this chapter. Any employer which was previously
permitted to self-insure its second injury risk who then elects to
terminate that self-insurance status shall not thereafter be
permitted to self-insure its second injury risk.
(2) (e) For those employers previously permitted to self-
insure their second injury risks, the amount of the security or
bond required in subsection (a) of this section shall include the
liability for that risk. All self-insured second injury benefits
provided for by this chapter which are awarded to the employer's
employees which constitute second injury life awards shall then be
paid by the employer and not the division.
(3)(A) For those employers which do not self-insure their
second injury risk, the premium tax for second injury coverage
shall be determined by the rules which implement section four of
this article. Such rules may provide for merit rate adjustments of
the amount of premium tax to be paid based upon the accrued costs
to be determined under generally accepted accounting principles of
second injury benefits paid and to be paid to the employer's
employees. Until such rules are adopted, the employer's premium
taxes shall be determined in accordance with the provisions of
chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one.
(B) In case there is a second injury to an employee of any
employer making such second injury premium tax payments, the
employer shall be liable to pay compensation or expenses arising
from or necessitated by the second injury and such compensation and
expenses shall be charged against the employer. After the
completion of these payments, the employee shall be paid the
remainder of the compensation and expenses that would be due for
permanent total disability from the second injury reserve of the
surplus fund. Such additional compensation and expenses shall not
be charged against such employer.
(f) The division, with concurrence of the compensation
programs performance council, may create, implement, establish and
administer a perpetual self-insurance security risk pool of funds,
sureties, securities, insurance provided by private insurance
carriers or other states' programs, and other property, of both
real and personal properties, to secure the payment of obligations
of self-insured employers. If such pool is created, the division,
with concurrence of the compensation programs performance council,
shall adopt rules for the organizational plan, participation,
contributions and other payments which may be required of self-
insured employers under this section. The council, in order to
create and fund such a risk pool, may adopt a rule authorizing the
division to assess each self-insured employer in proportion according to each employer's portion of the unsecured obligation
and liability or to assess according to some other method provided
for by rule which shall properly create and fund such risk pool to
serve the needs of employees, employers and the workers'
compensation fund by providing adequate security. The council, in
funding such security risk pool, may authorize the division to use
any assessments, premium tax assessments and revenues and
appropriations as may be made available to the division.
(g) Any self-insured employer which has had a period of
inactivity due to the nonemployment of employees which results in
its reporting of no wages on quarterly reports to the division for
a period of four or more consecutive quarters shall have its status
at the division inactivated and shall be required to apply for
reactivation to status as a self-insured employer prior to its
reemployment of employees. Despite such inactivation, the self-
insured employer shall continue to make payments on all awards for
which it is responsible. Upon application for reactivation of its
status as an operating self-insured employer, the employer must
document that it meets the eligibility requirements needed to
maintain self-insured status under this section and any rules
adopted to implement it. If the employer is unable to requalify
and obtain approval for reactivation, the employer shall, effective
with the date of employment of any employee, become a subscriber to
the workers' compensation fund, but shall continue to be a self-insurer as to the prior period of active status and to furnish
security or bond and meets its prior self-insurance obligations.
(h) In any case under the provisions of this section that
shall require the payment of compensation or benefits by an
employer in periodical payments and the nature of the case makes it
possible to compute the present value of all future payments, then
the division may, in its discretion, at any time compute and permit
to be paid into the workers' compensation fund an amount equal to
the present value of all unpaid future payments on the award or
awards for which liability exists in trust. Thereafter, such
employer shall be discharged from any further portion of premium
tax liability upon such award or awards and payment of the award or
awards shall be assumed by the division.
(i) Any employer subject to this chapter, who shall elect to
carry the employer's own risk by being self-insured and who has
complied with the requirements of this section and of any
applicable rules, shall not be liable to respond in damages at
common law or by statute for the injury or death of any employee,
however occurring, after such election's approval and during the
period that the employer is allowed to carry the employer's own
risk.
(j) Notwithstanding any provisions in this chapter to the
contrary, self-insured employers shall, effective the first day of
July, two thousand three, administer their own claims. The commissioner shall, with concurrence of the compensation programs
performance council, develop and publish such rules as necessary to
regulate the administration of claims by employers granted
permission to self-insure their obligations under this chapter.
Such rules shall be promulgated at least thirty days prior to the
first day of July, two thousand three.
_____(k) An employer granted permission to self-insure its
obligations under this chapter shall at all times be bound by and
shall comply fully with all of the provisions of this chapter and
with such rules relating to self-insurance claims administration as
may be promulgated by the commissioner. Each self-insured employer
or the employer's representatives, or the self-insured employer and
the employer's representatives, shall be audited on a basis and a
frequency to be determined by the commissioner, but in no event
less often than biannually. Repeated violations of the provisions
of this chapter constitute sufficient grounds for the termination
of the authority for an employer to self-insure its obligations
under this chapter.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-1. Compensation fund; surplus fund; catastrophe and
catastrophe payment defined; compensation by employers.
(a) The commissioner shall establish a workers' compensation
fund from the premiums and other funds paid thereto by employers,
as herein provided, for the benefit of employees of employers who have paid the premiums applicable to such employers and have
otherwise complied fully with the provisions of section five,
article two of this chapter, and for the benefit, to the extent
elsewhere in this chapter set out, of employees of employers who
have elected, under section nine, article two of this chapter, to
make payments into the surplus fund hereinafter provided for, and
for the benefit of the dependents of all such employees, and for
the payment of the administration expenses of this chapter.
(b) A portion of all premiums that shall be paid into the
workers' compensation fund by subscribers not electing to carry
their own risk under section nine, article two of this chapter
shall be set aside to create and maintain a surplus fund to cover
the catastrophe hazard, the second injury hazard, and all losses
not otherwise specifically provided for in this chapter. The
percentage to be set aside shall be determined pursuant to the
rules adopted to implement section four, article two of this
chapter and shall be in an amount sufficient to maintain a solvent
surplus fund. All interest or other return earned on investments
by of the workers' compensation fund, which is attributable to the
surplus fund, shall be credited to the surplus fund.
(c) A catastrophe is hereby defined as an accident in which
three or more employees are killed or receive injuries, which, in
the case of each individual, consist of: Loss of both eyes or the
sight thereof; or loss of both hands or the use thereof; or loss of both feet or the use thereof; or loss of one hand and one foot or
the use thereof. The aggregate of all medical and hospital bills
and other costs, and all benefits payable on account of a
catastrophe is hereby defined as "catastrophe payment". In case of
a catastrophe to the employees of an employer who is an ordinary
premium-paying subscriber to the fund, or to the employees of an
employer who, having elected to carry the employer's own risk under
section nine, article two of this chapter, has heretofore elected,
or may hereafter elect, to pay into the catastrophe reserve of the
surplus fund under the provisions of that section, then the
catastrophe payment arising from such catastrophe shall not be
charged against, or paid by, such employer but shall be paid from
the catastrophe reserve of the surplus fund.
(d) (1) If For all new claims filed on or after the effective
date of the amendments to this section enacted during the two
thousand three regular session of the Legislature, and for all
claims filed before that effective date in which eligibility for
permanent total disability has not been determined as of that
effective date, the following provisions relating to second injury
are not applicable. For claims filed before the date specified
above, if an employee who has a definitely ascertainable physical
impairment, caused by a previous occupational injury, occupational
pneumoconiosis or occupational disease, irrespective of its
compensability, becomes permanently and totally disabled through the combined effect of such previous injury and a second injury
received in the course of and as a result of his or her employment,
the employer shall be chargeable only for the compensation payable
for such second injury: Provided, That in addition to such
compensation, and after the completion of the payments therefor,
the employee shall be paid the remainder of the compensation that
would be due for permanent total disability out of a special
reserve of the surplus fund known as the second injury reserve,
created in the manner hereinbefore set forth. The procedure by
which the claimant's request for a permanent total disability award
under this section is ruled upon shall require that the issue of
the claimant's degree of permanent disability first be determined.
Thereafter, by means of a separate order, a decision shall be made
as to whether the award shall be a second injury award under this
subsection or a permanent total disability award to be charged to
the employer's account or to be paid directly by the employer if
the employer has elected to be self-insured under the provisions of
section nine, article two of this chapter.
(2) If an employee of an employer, where the employer has
elected to carry his or her own risk under section nine, article
two of this chapter, and is permitted not to make payments into the
second injury reserve of surplus fund under the provisions of said
section, has a definitely ascertainable physical impairment caused
by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, and
becomes permanently and totally disabled from the combined effect
of such previous injury and a second injury received in the course
of and as a result of his or her employment, the employee shall be
granted an award of total permanent disability and his or her
employer shall, upon order of the division, compensate the said
employee in the same manner as if the total permanent disability of
the employee had resulted from a single injury while in the employ
of such employer.
(e) Employers electing, as herein provided, to compensate
individually and directly their injured employees and their fatally
injured employees' dependents shall do so in the manner prescribed
by the division and shall make all reports and execute all blanks,
forms and papers as directed by the division, and as provided in
this chapter.
§23-3-6. Emergency fiscal measures.
(a) In addition to other measures provided by this act
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 the efforts to reduce and eliminate the threat. The
provisions of this section are enacted for those purposes.
(b) The following measures, which may be used either singly or
in combination, and without regard to the order in which they are set forth herein, are authorized for the purposes described in this
section:
(1) Upon meeting the conditions and requirements of subsection
(a), section eight-b, article four-b of this chapter, the division
may expend the assets described in said subsection and any income
earned thereon to satisfy the obligations of the workers'
compensation fund.
(2) Upon meeting the conditions and requirements of
subsections (b) and (c), section eight-b, article four-b of this
chapter, and upon appropriation of the Legislature, the division
may expend the assets described in subsection (b) of said section
and any income earned thereon to satisfy the obligations of the
fund.
(3) If in any year expenditures from the workers' compensation
fund exceed assets in that fund, the commissioner 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 commissioner
shall obtain an opinion from the
division
's actuary as to the
amount of the deficit in the workers' compensation fund. Upon
meeting the requirements of this subsection, the commissioner shall
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 by the Legislature, the division may expend the
assets transferred and any income earned thereon to satisfy the
obligations of the fund.
(4) (A) If in any year expenditures from the workers'
compensation fund exceed assets in that fund, the commissioner may,
under the following conditions, request a transfer of moneys from
the general revenue fund of the state. Prior to requesting the
transfer, the commissioner shall obtain an opinion from the
division's actuary as to the amount of the deficit in the workers'
compensation fund. Upon meeting the requirements of this
subsection, the commissioner shall submit a written request to the
governor to provide for a general reduction of appropriations for
the year in general revenue to provide moneys for transfer to the
workers' compensation fund. The commissioner shall also submit a
request to the joint committee on government and finance that an
amount determined by the Legislature be transferred by
appropriation from the general revenue fund to the workers'
compensation fund. Upon appropriation of the Legislature, the
division may expend the assets transferred and any income earned
thereon to satisfy the obligations of the workers' compensation
fund.
(B) The governor may direct the secretary of administration to reduce equally and pro rata all appropriations out of general
revenue in such a degree as the governor may determine to be
necessary for the purposes of this subdivision.
(5) Upon any exercise of the authority granted by this
section, the commissioner shall not increase benefit rates 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.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1c. Payment of temporary total disability benefits directly
to claimant; payment of medical benefits; payments of benefits
during protest; right of division to collect payments
improperly made.
(a) In any claim for benefits under this chapter, the workers'
compensation division shall determine whether the claimant has
sustained a compensable injury within the meaning of section one of
this article and the division shall enter an order giving all
parties immediate notice of such decision.
(1) The division may enter an order conditionally approving
the claimant's application if the division finds that obtaining
additional medical evidence or evaluations or other evidence
related to the issue of compensability would aid the division in
making a correct final decision. Benefits shall be paid during the
period of conditional approval; however, if the final decision is one that rejects the claim, then any such payments shall be
considered an overpayment. The division may only recover the
amount of such an overpayment as provided for in subsection (i) of
this section.
(2) In making a determination regarding the compensability of
a newly filed claim or upon a filing for the reopening of a prior
claim pursuant to the provisions of section sixteen of this article
based upon an allegation of recurrence, reinjury, aggravation or
progression of the previous compensable injury, or in the case of
a filing of a request for any other benefits under the provisions
of this chapter, the division shall consider the date of the filing
of the claim for benefits for a determination of the following:
(A) Whether the claimant had scheduled shutdown beginning
within one week of the date of the filing; or
(B) Whether the claimant received notice within sixty days of
the filing that his or her employment position was to be
eliminated, including, but not limited to, the claimant's worksite,
a layoff or the elimination of the claimant's employment position;
or
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing.
In the event of an affirmative finding upon any of these four factors, then such finding shall be given probative weight in the
overall determination of the compensability of the claim or of the
merits of the reopening request.
(3) Any party shall have the right to object to the order of
the division and obtain an evidentiary hearing as provided in
section one, article five of this chapter.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided in
section five of this article, the division may immediately enter an
order commencing the payment of temporary total disability benefits
to the claimant in the amounts provided for in sections six and
fourteen of this article, and the payment of the expenses provided
for in subsection (a), section three of this article, relating to
said injury, without waiting for the expiration of the thirty-day
period during which objections may be filed to such findings as
provided in section one, article five of this chapter. The
division shall enter an order commencing the payment of temporary
total disability or medical benefits within fifteen days of receipt
of either the employee's or employer's report of injury, whichever
is received sooner, and also upon receipt of either a proper
physician's report or any other information necessary for a
determination. The division shall give to the parties immediate
notice of any order granting temporary total disability or medical benefits.
(c) The division may enter orders granting temporary total
disability benefits upon receipt of medical evidence justifying the
payment of such benefits. In no claim shall the division enter an
order granting prospective temporary total disability benefits for
a period of more than ninety days: Provided, That when the
division determines that the claimant remains disabled beyond the
period specified in the prior order granting temporary total
disability benefits, the division shall enter an order continuing
the payment of temporary total disability benefits for an
additional period not to exceed ninety days and shall give
immediate notice to all parties of such decision.
(d) Upon receipt of the first report of injury in claim, the
division shall request from the employer or employers any wage
information necessary for determining the rate of benefits to which
the employee is entitled. If an employer does not furnish the
division with this information within fifteen days from the date
the division received the first report of injury in the case, the
employee shall be paid temporary total disability benefits for lost
time at the rate the division obtains from reports made pursuant to
section eleven, article ten, chapter twenty-one-a of this code. If
no such wages have been reported, then the division shall make such
payments at the rate the division finds would be justified by the
usual rate of pay for the occupation of the injured employee. The division shall adjust the rate of benefits both retroactively and
prospectively upon receipt of proper wage information. The
division shall have access to all wage information in the
possession of any state agency.
(e) Subject to the limitations set forth in section sixteen of
this article, upon a finding of the division that a claimant who
has sustained a previous compensable injury which has been closed
by any order of the division, or by the claimant's return to work,
suffers further temporary total disability or requires further
medical or hospital treatment resulting from the compensable
injury, the division shall immediately enter an order commencing
the payment of temporary total disability benefits to the claimant
in the amount provided for in sections six and fourteen of this
article, and the expenses provided for in subsection (a), section
three of this article, relating to said disability, without waiting
for the expiration of the thirty-day period during which objections
may be filed to such findings as provided in section one, article
five of this chapter. The division shall give immediate notice to
the parties of its order.
(f) Where the employer is a subscriber to the workers'
compensation fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the division shall mail
all workers' compensation checks paying temporary total disability
benefits directly to the claimant and not to the employer for delivery to the claimant.
(g) Where the employer has elected to carry its own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the division shall immediately issue a pay order
directing the employer to pay such amounts as are due the claimant
for temporary total disability benefits. A copy of the order shall
be sent to the claimant. The the self-insured employer shall
commence such payments by mailing or delivering the payments
directly to the employee. within ten days of the date of the
receipt of the pay order by the employer. If the self-insured
employer believes that its employee is entitled to benefits, the
employer may start payments before receiving a pay order from the
division
(h) In the event that an employer files a timely objection to
any order of the division with respect to compensability, or any
order denying an application for modification with respect to
temporary total disability benefits, or with respect to those
expenses outlined in subsection (a), section three of this article,
the division shall continue to pay to the claimant such benefits
and expenses during the period of such disability. Where it is
subsequently found by the division that the claimant was not
entitled to receive such temporary total disability benefits or
expenses, or any part thereof, so paid, the division shall, when
the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment. and, when the employer
has elected to carry its own risk, the division shall refund to
such employer the amount of the overpayment. The amounts so
credited to a subscriber or repaid to a self-insurer shall be
charged by the division to the surplus fund created in section one,
article three of this chapter
(i) When the employer has protested the compensability or
applied for modification of a temporary total disability benefit
award or expenses and the final decision in such case determines
that the claimant was not entitled to such benefits or expenses,
the amount of such benefits or expenses shall be considered
overpaid. The division may only recover the amount of such
benefits or expenses by withholding, in whole or in part, as
determined by the division, future permanent partial disability
benefits payable to the individual in the same or other claims and
credit such amount against the overpayment until it is repaid in
full.
(j) In the event that the division finds that, based upon the
employer's report of injury, the claim is not compensable, the
division shall provide a copy of such employer's report to the
claimant in addition to the order denying the claim.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the division makes an award for permanent partial or
permanent total disability, the division or self-insured employer shall start payment of benefits by mailing or delivering the amount
due directly to the employee within fifteen days from the date of
the award: Provided, That the division may withhold payment of the
portion of the award that is the subject of the following
subsection until seventy-seven days have expired without an
objection being filed.
(b) On and after the first day of July, one thousand nine
hundred ninety-five, whenever the division, the office of judges or
the workers' compensation appeal board enters an order granting the
claimant a permanent total disability award and an objection or
appeal is then filed by the employer or the division, the division
shall begin the payment of monthly permanent total disability
benefits. However, any payment for a back period of benefits from
the onset date of total permanent disability to the date of the
award shall be limited to a period of twelve months of benefits.
If, after all litigation is completed and the time for the filing
of any further objections or appeals to the award has expired, the
award of permanent total disability benefits is upheld, then the
claimant shall receive the remainder of benefits due to him or her
based upon the onset date of total permanent disability that was
finally determined.
(c) If the claimant is then owed any additional payment of
back permanent total disability benefits, then the division shall
not only pay the claimant the sum owed but shall also add thereto interest at the simple rate of six percent per annum from the date
of the initial award granting the total permanent disability to the
date of the final order upholding the award. In the event that an
intermediate order directed an earlier onset date of permanent
total disability than was found in the initial award, the interest
earning period for that additional period shall begin upon the date
of the intermediate award. Any interest payable shall be charged
to the account of the employer or shall be paid by the employer if
it has elected to carry its own risk.
(d) If a timely protest to the award is filed, as provided in
section one or nine, article five of this chapter, the division or
self-insured employer shall continue to pay to the claimant such
benefits during the period of such disability unless it is
subsequently found that the claimant was not entitled to receive
the benefits, or any part thereof, so paid, in which event the
division shall, where the employer is a subscriber to the fund,
credit said employer's account with the amount of the overpayment.
and, where the employer has elected to carry the employer's own
risk, the division shall refund to such employer the amount of the
overpayment. The amounts so credited to a subscriber or repaid to
a self-insurer shall be charged by the division to the surplus fund
created by section one, article three of this chapter If the final
decision in any case determines that a claimant was not lawfully
entitled to benefits paid to him or her pursuant to a prior decision, such amount of benefits so paid shall be deemed overpaid.
The division may only recover such amount by withholding, in whole
or in part, as determined by the division, future permanent partial
disability benefits, as determined by the compensation programs
performance council, payable to the individual in the same or other
claims and credit such amount against the overpayment until it is
repaid in full.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of
this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The expressions "average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury" and
"average weekly wage in West Virginia", as used in this chapter,
shall have the meaning and shall be computed as set forth in
section fourteen of this article except for the purpose of
computing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(b) If the injury causes temporary total disability, and
occurred on or after the effective date of the amendments to this
section enacted during the two thousand three regular session of
the Legislature, the employee shall receive during the continuance
thereof a maximum weekly benefit to be computed on the basis of seventy sixty-six and two-thirds percent of the average weekly wage
earnings, wherever earned, of the injured employee, at the date of
injury, not to exceed one hundred percent of the average weekly
wage in West Virginia: Provided, That in the case of a claimant
whose injury occurred prior to the second day of February, one
thousand nine hundred ninety-five effective date of the amendments
to this section enacted during the two thousand three regular
session of the Legislature, the maximum benefit rate shall be the
rate applied under the prior enactment of this subsection which was
in effect at the time the injury occurred, and the rate shall not
be affected by the amendment and reenactment of this section during
the regular session of the Legislature in the year one thousand
nine hundred ninety-five two thousand three. The minimum weekly
benefits paid hereunder shall not be less than thirty-three and
one-third percent of the average weekly wage in West Virginia,
except as provided in sections six-d and nine of this article. In
no event, however, shall such minimum weekly benefits exceed the
level of benefits determined by use of the then applicable federal
minimum hourly wage: Provided, however, That any claimant
receiving permanent total disability benefits, permanent partial
disability benefits or dependents' benefits prior to the first day
of July, one thousand nine hundred ninety-four, shall not have his
or her benefits reduced based upon the requirement herein that the
minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section shall be limited as
follows: Aggregate award for a single injury causing temporary
disability shall be for a period not exceeding two hundred eight
weeks.
(d) For all awards of permanent total disability benefits that
are made on or after the second day of February, one thousand nine
hundred ninety-five, including those claims in which a request for
an award was pending before the division or which were in
litigation but not yet submitted for a decision, then benefits
shall be payable until the claimant attains the age necessary to
receive federal old age retirement benefits under the provisions of
the Social Security Act, 42 U. S. C. §401 and §402, in effect on
the effective date of this section. Such a claimant shall be paid
benefits so as not to exceed a maximum benefit of sixty-six and
two-thirds percent of the claimant's average weekly wage earnings,
wherever earned, at the time of the date of injury not to exceed
one hundred percent of the average weekly wage in West Virginia.
The minimum weekly benefits paid hereunder shall be as is provided
for in subdivision (b) of this section. In all claims in which an
award for permanent total disability benefits was made prior to the
second day of February, one thousand nine hundred ninety-five, such
awards shall continue to be paid at the rate in effect prior to
said date, subject to annual adjustments for changes in the average weekly wage in West Virginia: Provided, That the provisions of
sections one through eight, 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
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 forty percent statutory
disability pursuant to the provisions of subdivision (f) of this
section. The presumption may be rebutted if the evidence
establishes that the claimant is not permanently and totally
disabled pursuant to subdivision (n) of this section. Under no
circumstances shall the division grant an additional permanent
disability award to a claimant receiving a permanent total
disability award: Provided further, That if any claimant
thereafter sustains another compensable injury and has permanent
partial disability resulting therefrom, the total permanent
disability award benefit rate shall be computed at the highest
benefit rate justified by any of the compensable injuries. and the
cost of any increase in the permanent total disability benefit rate
shall be paid from the second injury reserve created by section
one, article three of this chapter
(e) (1) For all awards made on or after the second day of
February, one thousand nine hundred ninety-five, if the injury
causes permanent disability less than permanent total disability,
the percentage of disability to total disability shall be
determined and the award computed on the basis of four weeks'
compensation for each percent of disability determined, at the
maximum or minimum benefit rates provided for in subdivision (d) of
this section: Provided, That in the case of a claimant whose
injury occurred prior to the second day of February, one thousand
nine hundred ninety-five, the maximum benefit rate shall be the
rate applied under the prior enactment of this section which was in
effect at the time the injury occurred, and the rate shall not be
affected by the amendment and reenactment of this section during
the regular session of the Legislature in the year one thousand
nine hundred ninety-five.
(2) If a claimant is released by his or her treating physician
to return to work at the job he or she held before the occupational
injury occurred and if the claimant's preinjury employer does not
offer the preinjury job or a comparable job to the employee when
such a position is available to be offered, then the award for the
percentage of partial disability shall be computed on the basis of
six weeks of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be
as provided in subdivision (b) of this section for temporary total disability.
(f) If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage of
disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a two
percent disability.
The loss of all toes shall be considered a twenty-five percent
disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index finger shall be considered a
thirty-two percent disability.
The loss of index and middle 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, using as a basis the total
loss of one eye.
The total and irrecoverable loss of the hearing of one ear
shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one, or both ears, the
percentage of disability shall be determined by the division, using
as a basis the total loss of hearing in both ears.
Should a claimant sustain a compensable injury which results
in the total loss by severance of any of the bodily members named
in this subdivision, die from sickness or noncompensable injury
before the division makes the proper award for such injury, the
division shall make such award to claimant's dependents as defined
in this chapter, if any; such payment to be made in the same
installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of
such claimant after his or her remarriage, and that this liability
shall not accrue to the estate of such claimant and shall not be
subject to any debts of, or charges against, such estate.
(g) Should a claimant to whom has been made a permanent
partial award die from sickness or noncompensable injury, the
unpaid balance of such award shall be paid to claimant's dependents
as defined in this chapter, if any; such payment to be made in the
same installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of such claimant after his or her remarriage, and that this liability
shall not accrue to the estate of such claimant and shall not be
subject to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have the force and effect
of an award.
(i) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section and
in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said section.
The occupational pneumoconiosis board created pursuant to section
eight-a of this article shall premise its decisions on the degree
of pulmonary function impairment that claimants suffer solely upon
whole body medical impairment. The workers' compensation division
shall adopt standards for the evaluation of claimants and the
determination of a claimant's degree of whole body medical
impairment. Once the degree of medical impairment has been
determined, that degree of impairment shall be the degree of
permanent partial disability that shall be awarded to the claimant. This subdivision shall be applicable to all injuries incurred and
diseases with a date of last exposure on or after the second day of
February, one thousand nine hundred ninety-five, to all
applications for an award of permanent partial disability made on
and after such date, and to all applications for an award of
permanent partial disability that were pending before the division
or pending in litigation but not yet submitted for decision on and
after such date. The prior provisions of this subdivision shall
remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the
commissioner by the health care advisory panel, the commissioner
shall appoint an interdisciplinary examining board consisting of
five members to evaluate claimants, including by examination if the
board so elects. The board shall be composed of three qualified
physicians with specialties and expertise qualifying them to
evaluate medical impairment and two vocational rehabilitation
specialists who are qualified to evaluate the ability of a claimant
to perform gainful employment with or without retraining. One
member of the board shall be designated annually as chairperson by
the commissioner. The term of office of each member of the board
shall be six years and until his or her successor has been
appointed and has qualified: Provided, That two of the persons
initially appointed shall serve a term of six years, two of the
remaining persons shall serve a term of four years and the remaining member shall serve a term of two years. Any member of
the board may be appointed to any number of terms. Any two
physician members and one vocational rehabilitation specialist
member shall constitute a quorum for the transaction of business.
The commissioner, from time to time, shall fix the compensation to
be paid to each member of the board, and the members shall also be
entitled to reasonable and necessary traveling and other expenses
incurred while actually engaged in the performance of their duties.
The board shall perform the duties and responsibilities as assigned
by the provisions of this chapter, consistent with the
administrative policies developed by the commissioner with the
assistance of the compensation programs performance council.
(1) Prior to the referral of any issue to the
interdisciplinary examining board, the division shall conduct such
examinations of the claimant as it finds necessary and obtain all
pertinent records concerning the claimant's medical history and
reports of examinations and forward them to the board at the time
of the referral. The division shall provide adequate notice to the
employer of the filing of the request for a permanent total
disability award and the employer shall be granted an appropriate
period in which to respond to the request. The claimant and the
employer may furnish all pertinent information to the board and
shall furnish to the board any information requested by the board.
The claimant and the employer may each submit no more than one report and opinion regarding each issue present in a given claim.
The employer shall be entitled to have the claimant examined by
medical specialists and vocational rehabilitation specialists:
Provided, That the employer is entitled to only one such
examination on each issue present in a given claim. Any additional
examinations must be approved by the division and shall be granted
only upon a showing of good cause. The reports from all employer-
conducted examinations must be filed with the board and served upon
the claimant. The board may request that those persons who have
furnished reports and opinions regarding a claimant provide it with
such additional information as the board may deem necessary. Both
the claimant and the employer, as well as the division, may submit
reports from experts challenging or supporting the other reports in
the record regardless of whether or not such an expert examined the
claimant or relied solely upon the evidence of record.
(2) If the board or a quorum thereof elects to examine a
claimant, the individual members shall conduct such examinations as
are pertinent to each of their specialties. If a claim presents an
issue beyond the expertise of the board, the board may obtain
advice or evaluations by other specialists. In addition, if the
compensation programs performance council determines that the
number of applications pending before the board has exceeded the
level at which the board can review and make recommendations within
a reasonable time, then the council may authorize the commissioner to appoint such additional members to the board as may be necessary
to reduce the backlog of applications. Such additional members
shall be recommended by the health care advisory panel and the
commissioner may make such appointments as he or she chooses from
the recommendations. The additional board members shall not serve
a set term but shall serve until the council determines that the
number of pending applications has been reduced to an acceptable
level.
(3) Referrals to the board shall be limited to matters related
to the determination of permanent total disability under the
provisions of subdivision (n) of this section and to questions
related to medical cost containment, utilization review decisions
and managed care decisions arising under section three of this
article.
(4) In the event the board members elect to examine a
claimant, the board shall prepare a report stating the tests,
examinations, procedures and other observations that were made, the
manner in which each was conducted, and the results of each. The
report shall state the findings made by the board and the reasons
therefor. Copies of the reports of all such examinations shall be
served upon the parties and the division and each shall be given an
opportunity to respond in writing to the findings and conclusions
stated in the reports.
(5) The board shall state its initial recommendations to the division in writing with an explanation for each such
recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the division
and each shall be afforded a thirty-day opportunity to respond in
writing to the board regarding the board's recommendations. The
board shall then review any such responses and issue its final
recommendations. The final recommendations shall then be
effectuated by the entry of an appropriate order by the division.
(6) Except as noted below, objections pursuant to section one,
article five of this chapter to any such order shall be limited in
scope to matters within the record developed before the workers'
compensation division and the board and shall further be limited to
the issue of whether the board properly applied the standards for
determining medical impairment, if applicable, and the issue of
whether the board's findings are clearly wrong in view of the
reliable, probative and substantial evidence on the whole record.
Should either party contend that the claimant's condition has
changed significantly since the review conducted by the board, the
party may file a motion with the administrative law judge, together
with a report supporting that assertion. Upon the filing of such
motion, the administrative law judge shall cause a copy of the
report to be sent to the examining board asking the board to review
the report and provide such comments as the board chooses within
sixty days of the board's receipt of the report. The board may then either supply such comments or, at the board's discretion,
request that the claim be remanded to the board for further review
by the board. If remanded, the claimant is not required to submit
to further examination by the employer's medical specialists or
vocational rehabilitation specialists. Following any such remand,
the board shall file its recommendations with the administrative
law judge for his or her review. If the board elects to respond
with comments, such comments shall be filed with the administrative
law judge for his or her review. Following the receipt of either
the board's recommendations or comment, the administrative law
judge shall then issue a written decision ruling upon the asserted
change in the claimant's condition. No additional evidence may be
introduced during the review of the objection before the office of
judges or elsewhere on appeal: Provided, That each party and the
division may submit one written opinion on each issue pertinent to
a given claim based upon a review of the evidence of record either
challenging or defending the board's findings and conclusions.
Thereafter, based upon the evidence then of record, the
administrative law judge shall issue a written decision containing
his or her findings of fact and conclusions of law regarding each
issue involved in the objection.
(k) Compensation payable under any subdivision of this section
shall not exceed the maximum nor be less than the weekly benefits
specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this chapter,
temporary total disability benefits payable under subdivision (b)
of this section shall not be deductible from permanent partial
disability awards payable under subdivision (e) or (f) of this
section. Compensation, either temporary total or permanent
partial, under this section shall be payable only to the injured
employee and the right thereto shall not vest in his or her estate,
except that any unpaid compensation which would have been paid or
payable to the employee up to the time of his or her death, if he
or she had lived, shall be paid to the dependents of such injured
employee if there be such dependents at the time of death.
(m) The following permanent disabilities shall be conclusively
presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n) (1) Other than for those injuries specified in subdivision
(m) of this section, in order to be eligible to apply for an award
of permanent total disability benefits for all injuries incurred
and all diseases, including occupational pneumoconiosis, with a
date of last exposure on and or after the second day of February,
one thousand nine hundred ninety-five, and for all requests for
such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five effective
date of the amendments to this section enacted during the two
thousand three regular session of the Legislature, a claimant must
have been awarded the sum of forty fifty percent in prior permanent
partial disability awards, have suffered an occupational injury or
disease which results in a finding that the claimant has suffered
a medical impairment of forty fifty percent or has sustained a
thirty-five forty percent statutory disability pursuant to the
provisions of subdivision (f) of this section. Upon filing such an
application, the Any such claim will be reevaluated by the
examining board pursuant to subdivision (i) of this section to
determine if he or she has suffered a whole body medical impairment
of 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 forty 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 forty percent statutory
disability pursuant to the provisions of subdivision (f) of this
section, then the request shall be denied. Upon a finding that the
claimant does have a forty fifty percent whole body medical
impairment or has sustained a thirty-five forty percent statutory
disability pursuant to the provisions of subdivision (f) of this
section, then the review of the application claim shall continue as
provided for in the following paragraph of this subdivision. Those
claimants whose prior permanent partial disability awards total
eighty-five percent or more and who have been found to have a whole
body medical impairment of at least forty fifty percent or have
sustained a thirty-five forty percent statutory disability pursuant
to the provisions of subdivision (f) of this section shall then be
entitled to the rebuttable presumption created pursuant to
subdivision (d) for the remaining issues in the request claim. For
the purposes of determining whether the claimant should be awarded
permanent total disability benefits under the second injury
provisions of subsection (d), section one, article three of this
chapter, only a combination of occupational injuries and
occupational diseases, including occupational pneumoconiosis, shall
be considered.
(2) A disability which renders the injured employee unable to
engage in substantial gainful activity requiring skills or
abilities comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a
substantial period of time shall be considered in determining the
issue of total disability. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three,
chapter twenty-one-a of this code shall be considered once they are
effective.
(3) In the event that a claimant, who has been found to have
at least a forty fifty percent whole body medical impairment or has
sustained a thirty-five forty percent statutory disability pursuant
to the provisions of subdivision (f) of this section, is denied an
award of permanent total disability benefits pursuant to this
subdivision and then accepts and continues to work at a lesser
paying job than he or she previously held, then such a claimant
shall be eligible, notwithstanding the provisions of section nine
of this article, to receive temporary partial rehabilitation
benefits for a period of four years. Such benefits shall be paid
at the level necessary to ensure the claimant's receipt of the
following percentages of the average weekly wage earnings of the
claimant at the time of injury calculated as provided in this
section and sections six-d and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no event shall such benefits exceed one hundred percent of the average
weekly wage in West Virginia. In no event shall such benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b) of this section.
(4) It is the intent of the Legislature that the amendments to
this section enacted during the regular session of the Legislature
in the year one thousand nine hundred ninety-nine which change
criteria for an award of permanent total disability benefits be
applied retroactively to all injuries incurred and all occupational
diseases, including occupational pneumoconiosis, with a date of
last exposure on and after the second day of February, one thousand
nine hundred ninety-five, and for all requests for such an award
pending before the division on and after the second day of
February, one thousand nine hundred ninety-five: Provided, That
any claimant whose application for permanent total disability
benefits was rejected on or after the second day of February, one
thousand nine hundred ninety-five, based on a finding that the
claimant: (1) Was not awarded the sum of fifty percent in prior
permanent partial disability awards; or (2) did not suffer an
occupational injury or occupational disease which resulted in a
finding that the claimant has suffered a medical impairment of
fifty percent; or (3) did not suffer whole body medical impairment
of at least fifty percent, then such claimant may, during the
period beginning on the first day of July, one thousand nine hundred ninety-nine, and ending on the thirtieth day of September,
one thousand nine hundred ninety-nine, file with the division a
petition for reconsideration of the denial of permanent total
disability benefits. After review of the petition by the division
and the examining board, the division shall enter an appropriate
order on the claimant's petition for reconsideration.
(5) It is the intent of the Legislature that the amendments to
this section enacted during the regular session of the Legislature
in the year two thousand three which change criteria for an award
of permanent total disability benefits be applied from the date of
enactment to all injuries incurred on and after the date of
enactment, all occupational diseases, including occupational
pneumoconiosis, with a date of last exposure on and after the date
of enactment, and for all claims filed before the date of enactment
in which eligibility for permanent total disability has not been
determined on or before the date of enactment. The Legislature
finds that a deficit exists in the workers' compensation fund of
such critical proportions that it constitutes an imminent threat to
the immediate and long-term solvency of the fund and that, although
provisions of this subdivision may appear to be inconsistent with
the provisions of the decision of the West Virginia supreme court
of appeals in the case of State ex rel. Blankenship v. Richardson,
the Legislature finds that an emergency exists as a result of the
combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances
currently confronting the state, and that, unless the changes to
the criteria for an award of permanent total disability benefits
provided by the enactment of the amendments to this section, as
well as other legislation designed to address the problem, enacted
during the regular session of the Legislature in the year two
thousand three are made effective immediately, the fiscal stability
of this state will suffer irreparable harm. Accordingly, the
Legislature finds that the need of the citizens of this state for
the protection of the state treasury and the solvency of the
workers' compensation fund requires the limitations on any
expectations that may have arisen from the prior enactment of this
section.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§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 the satisfaction of obligation of
the workers' compensation fund upon transfer in accordance with the
provisions of this subsection. Prior to using the moneys, the
commissioner shall obtain a certificate from the division's actuary
that transferring the moneys from the separate account created under subsection (b), section eight of this article to the workers'
compensation fund will not impair the ability of the coal-workers'
pneumoconiosis fund to meet its claim obligations under Title IV of
the federal Coal Mine Health and Safety Act of 1969, as amended.
(b) If in any year expenditures from the workers' compensation
fund exceed assets in that fund, the commissioner may, under the
following conditions, request an appropriation of moneys from any
actuarial surplus that may exist from the coal-workers'
pneumoconiosis fund to the workers' compensation fund. Prior to
requesting an appropriation, the commissioner shall obtain a
certificate from the commission's actuary as to whether an
actuarial surplus and adequate cash flow exist in the coal-workers'
pneumoconiosis fund and, if so, the amount of the surplus. The
commissioner shall also obtain an opinion from the commission's
actuary as to the amount of the deficit in the workers'
compensation fund. The commissioner shall determine whether any
portion of the actuarial surplus may be transferred and still
maintain adequate reserves in the coal-workers' pneumoconiosis fund
for claims or increased costs based on changes in the standards for
obtaining benefits under Title IV of the federal Coal Mine Health
and Safety Act of 1969, as amended.
(c) Upon meeting the requirements of subsection (b) of this
section, the commissioner shall submit a written request to the
joint committee on government and finance that the Legislature appropriate an amount not to exceed one hundred million dollars
from the coal-workers' pneumoconiosis fund to the workers'
compensation fund. If the commissioner requests an appropriation
from the coal-workers' pneumoconiosis fund, the commissioner shall
not increase benefit rates 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.;
And,
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2120--A Bill
to amend
chapter twenty-three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, by adding thereto a new
article, designated article one-a; to amend and reenact sections
four, five and nine, article two of said chapter; to amend and
reenact section one, article three of said chapter; to further
amend said article by adding thereto a new section, designated
section six; to amend and reenact sections one-c, one-d and six,
article four of said chapter; and to amend article four-b of said
chapter by adding thereto a new section, designated section eight-
b, all relating to providing security for the workers' compensation
fund generally; providing for the workers' compensation deficit
reduction act; requiring commissioner to obtain written professional opinion of qualified actuary that certifies rates of
premium taxes or other assessments applicable to employers;
prohibiting rates other than those certified; authorizing workers'
compensation division to require employers to make reports and
payments of premium taxes or other assessments at intervals other
than quarterly; providing for the elimination of second injury
awards and the second injury reserve fund for certain claims;
providing for security or bond provided by employers; requiring
payment of employer's deficit amortization assessment by certain
employers; authorizing certain employers to insure its catastrophic
risk through private insurance carrier; removing obsolete language;
providing for a security risk pool; requiring the employers
authorized to self-insure their obligations to administer their own
claims; providing for certain audits; promulgation of rules by the
commissioner; providing for emergency transfers to the workers'
compensation fund
from the coal-workers' pneumoconiosis fund, from
the West Virginia tobacco settlement trust fund and from general
revenue in certain circumstances upon legislative appropriation;
expenditure of funds in coal-workers' pneumoconiosis special
account; conditions for prohibiting increase in benefits upon
certain annual calculations;
removing requirement that division
refund overpayments made by self-insured employers; authorizing the
compensation programs performance council to approve future
benefits from which overpayments may be recovered; reducing basis for computation of temporary total disability benefits for certain
claims; increasing threshold measurement of medical impairment for
eligibility for award of permanent total disability; applications
for awards; effective date of enactment of amendments; conditions
for expenditures; and transfers of coal-workers' pneumoconiosis
fund
moneys.
Senator Chafin moved that the Senate concur in the foregoing
House of Delegates amendments to the Senate amendments to the bill.
Following discussion,
Senator Ross moved the previous question.
The question being on the adoption of the aforestated motion
by Senator Ross, the same was put.
The result of the voice vote being inconclusive, Senator
Facemyer demanded a division of the vote.
A standing vote being taken, there were eighteen "yeas" and
fifteen "nays".
Whereupon, the President declared the motion for the previous
question offered by Senator Ross had prevailed.
The previous question having been ordered, that being on
Senator Chafin's motion to concur in the House of Delegates
amendments to the Senate amendments to the bill (Eng. Com. Sub. for
H. B. No. 2120).
Following a point of inquiry to the President, with resultant
response thereto,
Senator Facemyer moved that the Senate recess for five
minutes.
The question being on the adoption of Senator Facemyer's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator
Sprouse demanded a division of the vote.
A standing vote being taken, there were thirteen "yeas" and
nineteen "nays".
Whereupon, the President declared Senator Facemyer's
aforestated motion to had not prevailed.
The question now being on the adoption of Senator Chafin's
motion to concur in the House of Delegates amendments to the Senate
amendments to the bill (Eng. Com. Sub. for H. B. No. 2120), the
same was put.
The result of the voice vote being inconclusive, Senator
Facemyer demanded a division of the vote.
A standing vote being taken, there were eighteen "yeas" and
fifteen "nays".
Whereupon, the President declared Senator Chafin's aforestated
motion had prevailed.
Engrossed Committee Substitute for House Bill No. 2120, as
amended, was then put upon its passage.
Pending extended discussion.
__________
The midnight hour having arrived, the President stated all
unfinished legislative business, with the exception of the budget
bill, had expired due to the time element.
A series of messages from the House of Delegates having been
received at his desk, the following communications were reported by
the Clerk:
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 52, Eliminating certain bond on
out-of-state defendants in automobile accident cases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 162, Expunging certain
motor vehicle license information for nineteen-year-olds.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to the House
of Delegates amendments to, and the passage as amended with its
Senate amended title, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 180,
Providing for school
construction on cash basis.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to the House
of Delegates amendments to, and the passage as amended with its Senate amended title, of
Eng. Com. Sub. for Senate Bill No. 206,
Relating to compulsory
school attendance; supervision of certain students.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to the House
of Delegates amendments to, and the passage as amended with its
Senate amended title, to take effect from passage, of
Eng. Senate Bill No. 375,
Allowing transfer of contractor's
license to new business entity in certain cases.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to the House
of Delegates amendments to, and the passage as amended, of
Eng. Com. Sub. for Senate Bill No. 496,
Creating Motor Fuels
Excise Tax Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 505, Providing municipal
fire chiefs retain rank in certain cases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 535, Relating to sale of
alcohol, wine and beer to minors; mandatory carding.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to the House of Delegates amendments to, and the passage as amended with its
Senate amended title, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 558,
Establishing County
and Municipal Economic Opportunity Development District Acts.
A message from The Clerk of the House of Delegates announced
the rejection by that body of
Eng. Com. Sub. for Senate Bill No. 594, Increasing membership
on public employees insurance agency finance board.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to the House
of Delegates amendments to, and the passage as amended with its
Senate amended title, to take effect from passage, of
Eng. Senate Bill No. 646,
Establishing centers for economic
development and technology advancement at higher education
institutions.
A message from The Clerk of the House of Delegates announced
that that body had receded from its amendments to, and the passage
as amended by deletion, of
Eng. Senate Bill No. 657, Relating to capital company act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 658, Making supplementary appropriation
to department of health and human resources, division of human services, James "Tiger" Morton Catastrophic Illness Fund.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 659, Making supplementary appropriation
to state board of examiners for licensed practical nurses.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 660, Supplementing, amending, reducing
and increasing items from state road fund to department of
transportation, division of highways.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 661, Making supplementary appropriation
of federal funds to department of health and human resources,
division of health, maternal and child health.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 662, Expiring funds to unappropriated
surplus balance in general revenue and appropriating to tax
division.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 11, Requesting Division of
Highways name bridge on Route 5 near Elizabeth "World War II
Veterans Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 12, Requesting Joint
Committee on Government and Finance study bail bondsmen.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 20, Requesting Joint
Committee on Government and Finance study impact on tax base of
local governments when private lands are converted to parks or
forests.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 35, Relating to pension fund
bonds.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 45, Urging Congress to
provide additional funding from Abandoned Mine Reclamation Fund to
finance future water projects.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 46, Requesting Joint
Committee on Government and Finance appoint interim committee to
study mining regulatory program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 52, Amending Joint Rule No.
5 relating to bill processing dates.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
July 1, 2003, of
Eng. Com. Sub. for House Bill No. 2051, Expanding the
eligibility of part-time students for higher education adult
part-time student grants.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2414, Relating to
thoroughbred breeders association.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2477, Permitting residents
of nursing homes and similar facilities to retain the homestead
exemption and Class II property designation.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2592, Authorizing the
department of administration to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2675, Mandating insurance
coverage for certain clinical trials for ordinary costs of covered
services.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2700, Adding health maintenance
organization review committee to the definition of "review
organizations".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2702, Eliminating the
examination assessment fee on risk retention group.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2748, Preventing mail order or internet
sales of tobacco products to persons under eighteen years of age.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2753, Prohibiting
participation in animal fighting ventures and making violations a
felony.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2764, Defining the content of subpoenas
that may be issued by the insurance commissioner.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2799, Relating to the West
Virginia state police and the reemployment of recently retired
troopers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2818, Authorizing the county
commissions of growth counties to include the transfer of
development rights as part of a zoning ordinance.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2865, Upgrading the criminal
offense of damaging or destroying real or personal property owned
by a railroad company or public utility.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 2953, Establishing a mechanism to
eliminate any actuarially projected unfunded liability in the
Prepaid Tuition Trust Fund.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 2975, Providing a window for persons who
were members of PERS and who left state employment withdrawing
their PERS moneys to buy back their time with interest.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
from passage, of
Eng. House Bill No. 3011, Relating to authority of the state
fire commission to promulgate legislative and emergency rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. House Bill No. 3027, Authorizing the tax commissioner to
waive tax, interest and penalties in specified circumstances which
are otherwise imposed on uncompensated members of the governing
board or board of directors of certain tax exempt organizations.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3051, Altering the certain
reportable threshold dollar amounts on legislative member financial
disclosure statements and lobbyist report.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. House Bill No. 3195, Changing agency termination dates
pursuant to West Virginia sunset law.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3203, Relating to amusement ride safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 3215, Expiring funds to the unappropriated
surplus balance in the state fund, general revenue.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 3216, Supplementing, amending, reducing
and increasing items of the existing appropriations from the state
fund, general revenue, to the secretary of state.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 3217, Establishing a fund and making a
supplementary appropriation of federal funds out of the treasury
from the balance of federal moneys remaining unappropriated.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 3218, Expiring funds to the unappropriated
surplus balance in the state fund, general revenue.
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Sunday, March 9, 2003, at 12:30 a.m., for an extended
session to complete action on the annual state budget, under
authority of the Governor's proclamation issued March 5, 2003,
extending the first annual session of the seventy-sixth Legislature
until and including the sixteenth day of March, two thousand three,
solely for that purpose, as being the only permissive legislation
within constitutional purview.
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