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§23-4B-1. Purpose.
The purpose of this article is to establish a fund to provide benefits to coal miners who are totally disabled by pneumoconiosis and to eligible dependents of coal miners whose deaths were due to pneumoconiosis or who were totally disabled from pneumoconiosis at time of their deaths. The further purpose of this article is to provide a readily available insurer of liability created by Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, for claims incurred under said Act, including all claims where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed.

§23-4B-2. Coal-Workers' Pneumoconiosis Fund established.
For the relief of persons who are entitled to receive benefits by virtue of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, for claims incurred under said Act, including all claims where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed, there is continued a fund to be known as the Coal-Workers' Pneumoconiosis Fund, which fund shall be separate from the Workers' Compensation Fund. The Coal-Workers' Pneumoconiosis Fund shall consist of premiums and other funds paid to the fund by employers, subject to the provisions of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, who shall elect to subscribe to the fund to ensure the payment of benefits required by the Act for claims incurred under said Act, including all claims where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed.

The State Treasurer shall be the custodian of the Coal-Workers' Pneumoconiosis Fund and all premiums, deposits or other moneys paid to the fund shall be deposited in the State Treasury to the credit of the Coal-Workers' Pneumoconiosis Fund. Disbursements from the fund shall be made upon requisition signed by the Executive Director of the Workers' Compensation Commission to those persons entitled to participate in the fund: Provided, That effective upon the termination of the Workers' Compensation Commission, disbursement from the Coal-Workers' Pneumoconiosis Fund shall be made upon requisitions signed by the Insurance Commissioner. The Insurance Commissioner shall collect any unpaid premium and deposit the same in said fund. The West Virginia Investment Management Board may invest any surplus, reserve or other moneys belonging to the Coal-Workers' Pneumoconiosis Fund in accordance with article six, chapter twelve of this code.

§23-4B-3. To whom benefits paid.
Only those classes of persons who are entitled to benefits under Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, for claims incurred under said Act, including all claims where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed, are eligible to participate in the Coal-Workers' Pneumoconiosis Fund.

§23-4B-4. Who may subscribe.
Only those employers who are subject to the provisions of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, may elect to subscribe to the Coal-Workers' Pneumoconiosis Fund to insure the liability imposed upon such employers under the provisions of Title IV of the Act. Coverage by the Coal-Workers' Pneumoconiosis Fund will be provided only for claims incurred under the Act, including all claims where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed.

§23-4B-5. Payment of benefits.
Upon receipt of an order of compensation issued pursuant to a claim for benefits filed under the provisions of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, for claims incurred under said Act, including all claims where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed, the executive director shall disburse the Coal-Workers' Pneumoconiosis Fund in the amounts and to the persons as directed by the order: Provided, That effective upon the termination of the Workers' Compensation Commission, disbursement from the Coal-workers' Pneumoconiosis Fund shall be made upon requisitions signed by the Insurance Commissioner.

§23-4B-6. Coal-workers' pneumoconiosis fund; how funded.
For the purpose of creating the coal-workers' pneumoconiosis fund, each employer, who elects to subscribe to the fund, shall pay premiums based upon and being a percentage of the payroll of the employer determined by the board of managers. It is the duty of the board of managers to fix and maintain the lowest possible rates of premiums consistent with the maintenance of a solvent fund and the creation and maintenance of a reasonable surplus after providing for payment to maturity of all liability insured pursuant to Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended. The rates shall be adjusted annually or more often as may, in the opinion of the board of managers, be necessary.

The board of managers may by rule classify subscribers into groups or classes according to the nature of the hazards incident to the business of the subscribers and assign premium rates to the subscribers. In addition, the board of managers may by rule prescribe procedures for subscription, payroll reporting, premium payment, termination of subscription, reinstatement and other matters pertinent to the subscribers' continuing participation in the coal-workers' pneumoconiosis fund.

§23-4B-7. Administration.
(a) The Coal-Workers' Pneumoconiosis Fund shall be administered by the Executive Director of the Workers' Compensation Commission, who shall employ any employees necessary to discharge his or her duties and responsibilities under this article. All payments of salaries and expenses of the employees and all expenses peculiar to the administration of this article shall be made by the State Treasurer from the Coal-Workers' Pneumoconiosis Fund upon requisitions signed by the executive director.

(b) Notwithstanding any provision of this code to the contrary, effective from the termination of the Workers' Compensation Commission, the Coal-Workers' Pneumoconiosis Fund shall be administered by the Insurance Commissioner, who shall employ any employees and contract with any parties necessary to discharge his or her duties and responsibilities under this article. All payments of salaries and expenses of the employees and all expenses peculiar to the administration of this article shall be made by the State Treasurer from the Coal-Workers' Pneumoconiosis Fund upon requisitions signed by the Insurance Commissioner: Provided, That the employers' mutual insurance company established pursuant to article two-c of this chapter shall be the administrator of the Coal-Workers' Pneumoconiosis Fund for a term not to exceed three years following the termination of the Workers' Compensation Commission pursuant to an agreement to be entered into between the Insurance Commissioner and the Company prior to the termination of the Workers' Compensation Commission. The Company's administrative duties may include, but not be limited to, receipt of all claims, processing said claims, providing for the payment of said claims through the State Treasurer's office and ensuring, through the selection and assignment of counsel, that claims decisions are properly defended. Any contract entered into by the Insurance Commissioner for the administration of the Coal-Workers' Pneumoconiosis Fund thereafter shall be subject to the procedures set forth in article three, chapter five-a of this code.

§23-4B-8. Separable from workers' compensation fund.

(a) No disbursements shall be made from the workers' compensation fund on account of any provision of this article: Provided, That the Legislature may at any time merge, consolidate, alter or liquidate this fund as it may determine and in no instance shall the operation of this article be construed as creating any contract which would deprive any injured employee of future benefits or increases awarded by an act of Congress, nor shall this section operate to create any liability upon the state of West Virginia.

(b) The Legislature hereby finds and declares that there is a substantial actuarial surplus in the coal-workers' pneumoconiosis fund in excess of two hundred million dollars. The Legislature further finds and declares that there is a substantial actuarial deficit in the workers' compensation fund in excess of four hundred million dollars, and that this deficit is in large part attributable to claims arising out of the coal industry. The commissioner is hereby directed to conduct an actuarial audit to determine the amount, computed at book value, of the actuarial surplus in the coal-workers' pneumoconiosis fund as of the thirtieth day of June, one thousand nine hundred ninety, and to certify such amount, as of that date, in a written order which together with the results of said audit shall be a public record. Notwithstanding the provisions of subsection (a) of this section or any other provision of this article to the contrary, the commissioner shall, by written order, transfer the assets underlying said surplus to the workers' compensation fund, which assets shall thereupon become merged into and consolidated with the workers' compensation fund: Provided, That the value of the assets so transferred, when computed according to the book value of said assets on the date of transfer, shall not exceed two hundred fifty million dollars: Provided, however, That such assets so transferred shall be held in a separate account and shall not be used for the satisfaction of obligations of the workers' compensation fund until all other assets of the workers' compensation fund have been expended: Provided further, That the income earned, from time to time, on the assets so transferred may be used to satisfy obligations of the workers' compensation fund: And provided further, That a sufficient reserve shall be retained in the coal-workers' pneumoconiosis fund to guarantee the payment of all claims incurred, including claims which were incurred but not reported, on or before the thirtieth day of June, one thousand nine hundred ninety: And provided further, That any moneys due and owing to the coal-workers' pneumoconiosis fund as a result of any transfer of moneys pursuant to section eight-a of this article shall be construed as an asset of the coal-workers' pneumoconiosis fund and shall be included as an asset transferred to the workers' compensation fund under the provisions of this section. If at any time subsequent to the transfer of the aforesaid assets to the workers' compensation fund, the standards for obtaining benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended and as subsequently amended, are changed such that the actuarial audit performed hereunder may no longer accurately reflect the liabilities of the coal-workers' pneumoconiosis fund for claims arising prior to the first day of July, one thousand nine hundred ninety, the commissioner shall promptly conduct a new audit to determine whether any portion of the foregoing separate account should be returned to the coal-workers' pneumoconiosis fund in order to provide adequate reserves for claims arising prior to the first day of July, one thousand nine hundred ninety, and, if the results of such new audit determine that said reserves are inadequate, the commissioner shall transfer back to the coal-workers' pneumoconiosis fund that portion of the assets in the separate account necessary to provide adequate reserves for such claims.

§23-4B-8a. Legislative findings; transfers to the state; maximum transfer authorization; purpose for which moneys transferred may be disbursed and expended; maximum amount of transfer authorization; terms and conditions for repayment; premiums to be set without regard to transfers; creation of special account in state treasury.

(a) The Legislature hereby finds and declares that there is a casual deficit in the general revenue fund of this state because of the failure of the state's taxation program to produce the estimated revenues, such deficit condition having come into existence from ordinary expenses of the state without design and unexpectedly; that there is a large surplus of moneys in the coal-workers' pneumoconiosis fund; that transfers not to exceed thirty million dollars from the coal-workers' pneumoconiosis fund will assist in financing government operations, without in any way affecting the solvency of the coal-workers' pneumoconiosis fund; and that the interest being earned on the coal-workers' pneumoconiosis fund each year has for some time exceeded thirty million dollars. This section is enacted in view of these findings.

(b) Whenever the governor determines that the general revenue fund available for expenditure is insufficient for the timely payment for government operations, the treasurer, state board of investments and the commissioner shall transfer moneys from the coal-workers' pneumoconiosis fund to the special account created in the state treasury by subsection (f) of this section, in the amounts determined by the governor to be sufficient and necessary to meet such payments. The total of the amounts transferred may not exceed thirty million dollars, and the transfers shall be subject to the payment of interest equal to the actual interest rate earned by the coal-workers' pneumoconiosis fund on the day of each transfer for the period of each transfer until repayment.

(c) Any such transfer may be used only for payments for medicaid reimbursement.

(d) Full repayment of all transfers, with interest, shall be made to the coal-workers' pneumoconiosis fund by budget action as first priority from the moneys available for each fiscal year as follows: At least one fifth of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred eighty-nine; at least one fourth of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety; at least one third of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety-one; at least one half of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety-two; and the balance of the remaining amount transferred shall be repaid with interest no later than the thirtieth day of June, one thousand nine hundred ninety-three. Repayment transfers, shall be made by budget action as first priority from the moneys available for each fiscal year and as made, shall not be deemed to renew, restore or increase in any way the maximum amount of thirty million dollars herein authorized.

(e) The rates of premiums to be paid for coverage by the coal-workers' pneumoconiosis fund shall be determined by the commissioner with like effect as if all such transfers had not been made but had, together with the interest earned thereon, been available for use by the coal-workers' pneumoconiosis fund.

(f) There is hereby created in the state treasury a special account for the deposit, withdrawal and repayment of moneys transferred pursuant to this section and to invoke the applicability of the special fund doctrine with respect to budgetary transfer activities involving more than one fiscal year.

§23-4B-8b. Transfer of funds to workers' compensation fund.
(a) Notwithstanding any provision of section eight of this article to the contrary, the assets which were previously transferred from the coal-workers' pneumoconiosis fund and held in a separate account may, on or after the first day of July, two thousand three, be expended for workers' compensation fund liabilities.

(b) The Legislature hereby finds and declares that there is a substantial actuarial surplus in the coal-workers' pneumoconiosis fund in excess of one hundred seventy million dollars. The Legislature further finds and declares that there is a substantial actuarial deficit in the workers' compensation fund. The executive director shall conduct an actuarial audit to determine the amount of the actuarial surplus in the coal-workers' pneumoconiosis fund as of the thirtieth day of June, two thousand three, and certify the amount, as of that date, in a written order which together with the results of the audit shall be a public record. The executive director shall also obtain a statement from the commission's actuary that a distributable surplus exists in the coal-workers' pneumoconiosis fund. When the actuary provides the statement, and notwithstanding any provision of this article to the contrary, the executive director shall, by written order, transfer an amount not to exceed one hundred seventy million dollars from the coal-workers' pneumoconiosis fund to the workers' compensation fund, which assets shall thereupon become merged into and consolidated with the workers' compensation fund and expended for workers' compensation fund liabilities: Provided, That a level of reserve shall be retained in the coal-workers' pneumoconiosis fund sufficient within a seventy percent confidence level, on an actuarial basis, to satisfy the payment of all claims incurred, including claims which were incurred but not reported, on or before the thirtieth day of June, two thousand three. In the event the commission's actuary or an actuary employed by the board of managers determines prior to the thirtieth day of June, two thousand six, that the assets of the coal-workers' pneumoconiosis fund are not adequate to enable the coal-workers' pneumoconiosis fund to meet its claim obligations under Title IV of the federal Coal Mine Health and Safety Act of 1996, as amended, the executive director shall, upon appropriation of the Legislature, transfer an amount not to exceed fifty million dollars from the workers' compensation fund to the coal-workers' pneumoconiosis fund for expenditure to meet those obligations.

§23-4B-9. Closure of Coal-Workers' Pneumoconiosis Fund and coverage provided by the successor of the commission.
Upon the termination of the commission, the Coal-Workers' Pneumoconiosis Fund shall close and the company shall offer insurance to provide for the benefits required by this article until at least the thirty-first day of December, two thousand eight. All claims payment obligations, including indemnity benefits, medical benefits, administrative and all other expenses necessary for the administration and defense of claims, where the date of last exposure is on or before the thirty-first day of December, two thousand five, without regard to the date the claim is filed, shall be an obligation of the Coal-Workers' Pneumonoconiosis Fund created in this article and not of the company.

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