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§23-3-1. Compensation Fund; catastrophe and catastrophe payment defined; compensation by employers.
(a) The commission shall establish a Workers' Compensation Fund from the premiums and other funds paid thereto by employers, as provided in this section, for the benefit of employees of employers who have paid the premiums applicable to the employers and have otherwise complied fully with the provisions of section five, article two of this chapter, and for the benefit, to the extent elsewhere in this chapter set out, of employees of employers who have elected, under section nine, article two of this chapter, to make payments into the Workers' Compensation Fund as provided for in this section, and for the benefit of the dependents of all the employees, and for the payment of the administration expenses of this chapter. The Workers' Compensation Fund created pursuant to this article shall terminate upon termination of the commission and its proceeds shall be distributed as set forth in article two-c of this chapter.

(b) A portion of all premiums that are paid into the Workers' Compensation Fund by subscribers not electing to carry their own risk under section nine, article two of this chapter that is set aside to create and maintain a reserve of the fund to cover the catastrophe hazard and all losses not otherwise specifically provided for in this chapter. The percentage to be set aside is determined pursuant to the rules adopted to implement section four, article two of this chapter and shall be in an amount sufficient to maintain a solvent fund. All interest earned on investments by the Workers' Compensation Fund, which is attributable to the reserve, shall be credited to the fund. Effective upon termination of the commission, all funds in the catastrophe fund shall be transferred into the old fund, all claims payable as a consequence of a catastrophe hazard shall be payable from the old fund and any premiums due under this article shall be payable to the old fund. Employers shall purchase catastrophe insurance from the company or another private carrier and shall also reinsure their catastrophic risk.

(c) A catastrophe is hereby defined as an accident in which three or more employees are killed or receive injuries which, in the case of each individual, consist of: Loss of both eyes or the sight thereof; loss of both hands or the use thereof; loss of both feet or the use thereof; or loss of one hand and one foot or the use thereof. The aggregate of all medical and hospital bills and other costs and all benefits payable on account of a catastrophe is defined as "catastrophe payment". In case of a catastrophe to the employees of an employer who is an ordinary premium-paying subscriber to the fund, or to the employees of an employer who, having elected to carry the employer's own risk under section nine, article two of this chapter, has previously elected, or may later elect, to pay into the catastrophe reserve of the fund under the provisions of said section, the catastrophe payment arising from the catastrophe shall not be charged against, or paid by, the employer but shall be paid from the catastrophe reserve of the fund.

(d) For all awards made on or after the effective date of the amendments to this section enacted during the year two thousand three, the following provisions relating to second injury are not applicable. For awards made before the date specified in this subsection, if an employee who has a definitely ascertainable physical impairment, caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, becomes permanently and totally disabled through the combined effect of the previous injury and a second injury received in the course of and as a result of his or her employment, the employer shall be chargeable only for the compensation payable for the second injury: Provided, That in addition to the compensation, and after the completion of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for permanent total disability out of the workers' compensation fund. The procedure by which the claimant's request for a permanent total disability award under this section is ruled upon shall require that the issue of the claimant's degree of permanent disability first be determined. Thereafter, by means of a separate order, a decision shall be made as to whether the award is a second injury award under this subsection or a permanent total disability award to be charged to the employer's account or to be paid directly by the employer if the employer has elected to be self-insured employer under the provisions of section nine, article two of this chapter.

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

§23-3-1a. Transfer of silicosis fund to workers' compensation fund; claims under former article six.
Ten percent of the funds collected and held as the workers' compensation silicosis fund under the provisions of former article six of this chapter shall be transferred to and made a part of the workers' compensation fund provided for in the preceding section, and the balance of the silicosis fund shall be refunded to the subscribers to the fund in proportion to their contributions to the fund under the provisions of former article six; and all awards previously made under the provisions of article six shall be paid from the workers' compensation fund, or directly by the employer, under order of the executive director, if the employer has elected to carry his or her own risk under the provisions of section nine, article two of this chapter: Provided, That notwithstanding the repeal of article six, the provisions of the article are applicable in all cases of the disease or death, because of silicosis, or an employee whose last exposure to silicon dioxide dust has occurred prior to the effective date of this section, whose claim or application for compensation benefits for silicosis, or that of his or her dependent, has not been filed prior to that date, and whose employer, at the time of the exposure, was subject to the provisions of article six of this chapter.

§23-3-2. Custody, investment and disbursement of funds.
The state treasurer is the custodian of the workers' compensation fund and all premiums, deposits or other moneys payable to each fund shall be deposited in the state treasury to the credit of the fund for which it was assessed, transferred or collected in the manner prescribed in this chapter. The workers' compensation fund shall consist of the premiums and deposits provided by this chapter and any other moneys or funds given, appropriated or otherwise designated or accruing to it and all earnings. The fund shall be a separate and distinct fund upon the books and records of the auditor and treasurer. Disbursements therefrom shall be made upon requisitions signed by the executive director.

The workers' compensation fund is a participant plan as defined in section two, article six, chapter twelve of this code and is subject to the provisions of section nine-a of said article. The fund shall be invested by the investment management board in accordance with said article.

§23-3-3. Investment of surplus funds required.
Whenever there is in the state treasury any funds belonging to the workers' compensation fund not likely, in the opinion of the commission, to be required for immediate use, it is the duty of the investment management board to invest the funds as prescribed in section two of this article. Whenever it becomes necessary or expedient to use any of the invested funds, the investment management board, at the direction of the commission, shall collect, sell or otherwise realize upon any investment to the amount considered necessary or expedient to use.

§23-3-4. Deposits and disbursements considered abandoned property; disposition of property.
(a) All disbursements from the Workers' Compensation Fund and the other funds created pursuant to this chapter including the advance deposits by employers where there has been no activity for a period of five years, are presumed abandoned and subject to the custody of the state as unclaimed property under the provisions of article eight, chapter thirty-six of this code. The funds shall be kept in a separate account by the state treasurer, apart from other unclaimed property funds. Ninety days after the state treasurer has advertised the accounts and paid any claims, he or she shall remit the balance of those funds held in the account to the credit of the Workers' Compensation Fund or to other affected funds. Such property shall become the property of, and owned exclusively by, the Workers' Compensation Fund. Effective upon termination of the Commission, said funds otherwise meeting the requirements of this section shall be deposited into the old fund as set forth in article two-c of this chapter.

(b) Notwithstanding any provision of law to the contrary, all interest and other earnings accruing to the investments and deposits of the Workers' Compensation Fund and of the other funds created pursuant to this chapter are credited only to the account of the Workers' Compensation Fund or to such other affected fund.

§23-3-5. Authorization to require the electronic invoices and transfers.
(a) The workers' compensation commission shall on or before the thirty-first day of December, two thousand five, establish a program to require the acceptance of disbursements by electronic transfer from the workers' compensation fund to employers, vendors and all others lawfully entitled to receive such disbursements: Provided, That until the thirty-first day of December, two thousand five, claimants may not be required to accept the transfers but may elect to do so.

(b) The commission may establish a program to require payments of deposits, premiums and other funds into the workers' compensation fund by electronic transfer of funds.

(c) The commission may establish a program that invoices and other charges against the workers' compensation fund may be submitted to the commission by electronic means.

(d) Any program authorized by this section must be implemented through a rule promulgated by the board of managers.

§23-3-6. Emergency fiscal measures.
(a) In addition to other measures intended by the Legislature to address the imminent threat to the fiscal solvency of the workers' compensation fund, the Legislature finds that the prudent use of available moneys may be necessary to supplement ongoing efforts to reduce and eliminate that threat. The provisions of this section are enacted for those purposes.

(b) The following measures are authorized for the purposes described in subsection (a) of this section:

(1) Upon meeting the conditions and requirements of subsection (a), section eight-b, article four-b of this chapter, the commission may expend the assets described in said subsection and any income earned thereon to satisfy the obligations of the workers' compensation fund.

(2) Upon meeting the conditions and requirements of subsection (b), section eight-b, article four-b of this chapter, the commission may expend the assets described in said subsection and any income earned thereon to satisfy the obligations of the workers' compensation fund.

(3) In each fiscal year beginning after the thirtieth day of June, two thousand three, it is the intent of the Legislature that, pursuant to appropriation in the budget bill for each respective fiscal year, five million dollars of general revenue funds be transferred to the workers' compensation fund and that the amounts transferred be expended to satisfy the obligations of the workers' compensation fund.

(4) (A) If in any year expenditures from the workers' compensation fund are expected to exceed assets in that fund, the executive director may under the following conditions request a transfer of moneys from the principal of the West Virginia tobacco settlement medical trust fund created in section two, article eleven-a, chapter four of this code. Prior to requesting the transfer the executive director shall obtain an opinion from the commission's actuary as to the amount of the deficit in the workers' compensation fund. Upon meeting the requirements of this subdivision, the executive director shall, upon approval of the board of managers, submit a written request to the joint committee on government and finance that an amount determined by the Legislature be transferred by appropriation from the principal of the West Virginia tobacco settlement medical trust fund to the workers' compensation fund. Upon appropriation of the Legislature, the commission may expend the assets transferred and any income earned thereon to satisfy the obligations of the workers' compensation fund.

(B) Upon any exercise of the authority granted by this subdivision, the executive director shall not increase benefit rates during the year as provided in section fourteen, article four of this chapter and shall conduct an investigation into the causes of the deficit and determine the best course of action to alleviate the shortfall.

(5) It is the intent of the Legislature that, pursuant to legislative appropriation, fourteen million dollars of funds made available to the state pursuant to the federal Jobs and Growth Tax Relief Reconciliation Act of 2003, PL 108-27, be transferred to the workers' compensation fund and that the amounts transferred be expended to satisfy the obligations of the workers' compensation fund.

(6) It is the intent of the Legislature that, pursuant to legislative appropriation, one million dollars will be expired from the alcohol beverage control administration's general administrative fund and transferred to the workers' compensation fund and that the amounts transferred be expended to satisfy the obligations of the workers' compensation fund.

(7) It is the intent of the Legislature that, pursuant to legislative appropriation, four million dollars will be transferred from the unappropriated balance of the state excess lottery reserve fund to the workers' compensation fund and that the amounts transferred be expended to satisfy the obligations of the workers' compensation fund.

(8) Funds transferred to the workers' compensation fund pursuant to the provisions of this subsection are anticipated to generate income of at least six million dollars over the course of the three-year period following the enactment of this section in the year two thousand three. The commission may expend any income earned on these transferred funds to satisfy the obligations of the workers' compensation fund.

Note: WV Code updated with legislation passed through the 2012 1st Special Session