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Chapter 23     Entire Code
‹ Chapter 22C  |  Chapter 24 › Printer Friendly Versions
Chapter 23  |  Article 23 - 1
WVC 23 - CHAPTER 23. WORKERS' COMPENSATION.
WVC 23 - 1 - ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.

WVC 23 - 1 - 1 §23-1-1. Workers' Compensation Commission created; findings.
(a) The Legislature finds that a deficit exists in the Workers' Compensation Fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund and constitutes a substantial deterrent to the economic development of this state. The Legislature further finds that addressing the workers' compensation crisis requires the efforts of all persons and entities involved and resolution of the crisis is in the best interest of the public. Modification to the rate system, alteration of the benefit structure, improvement of current management practices and changes in perception must be merged into a unified effort to make the workers' compensation system viable and solvent through the mutualization of the system and the opening of the market to private workers' compensation insurance carriers. It was and remains the intent of the Legislature that the amendments to this chapter enacted in the year two thousand three be applied from the date upon which the enactment was made effective by the Legislature. The Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities and other grave social and economic circumstances currently confronting the state and that unless the changes provided by the enactment of the amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of the State Treasury and the solvency of the Workers' Compensation Funds requires the limitations on any expectations that may have arisen from prior enactments of this chapter.

(b) It is the further intent of the Legislature that this chapter be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter. It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits and that a rule of "liberal construction" based on any "remedial" basis of workers' compensation legislation shall not affect the weighing of evidence in resolving such cases. The workers' compensation system in this state is based on a mutual renunciation of common law rights and defenses by employers and employees alike. Employees' rights to sue for damages over and above medical and health care benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter and employers' rights to raise common law defenses, such as lack of negligence, contributory negligence on the part of the employee, and others, are curtailed as well. Accordingly, the Legislature hereby declares that any remedial component of the workers' compensation laws is not to cause the workers' compensation laws to receive liberal construction that alters in any way the proper weighing of evidence as required by section one-g, article four of this chapter.

(c) The "Workers' Compensation Division of the Bureau of Employment Programs" is, on or after the first day of October, two thousand three, reestablished, reconstituted and continued as the Workers' Compensation Commission, an agency of the state. The purpose of the commission is to ensure the fair, efficient and financially stable administration of the workers' compensation system of the State of West Virginia. The powers and duties heretofore imposed upon the Workers' Compensation Division and the Commissioner of the Bureau of Employment Programs as they relate to workers' compensation are hereby transferred to and imposed upon the Workers' Compensation Commission and its executive director in the manner prescribed by this chapter.

(d) It is the intent of the Legislature that the transfer of the administration of the workers' compensation system of this state from the Workers' Compensation Division under the Commissioner of the Bureau of Employment Programs to the Workers' Compensation Commission under its executive director and the workers' compensation board of managers is to become effective the first day of October, two thousand three. Any provisions of the enactment of Enrolled Senate Bill No. 2013 in the year two thousand three relating to the transfer of the administration of the workers' compensation system of this state that conflict with the intent of the Legislature as described in this subsection shall, to that extent, become operative on the first day of October, two thousand three, and until that date, prior enactments of this code in effect on the effective date of Enrolled Senate Bill No. 2013 relating to the administration of the workers' compensation system of this state, whether amended and reenacted or repealed by the passage of Enrolled Senate Bill No. 2013, have full force and effect. All provisions of the enactment of Enrolled Senate Bill No. 2013 in the year two thousand three relating to matters other than the transfer of the administration of the workers' compensation system of this state shall become operative on the effective date of that enactment, unless otherwise specifically provided in that enactment.

(e) It is the intent of the Legislature, expressed through its enactment of legislation, to transfer the regulation of the workers' compensation system to the Insurance Commissioner. By proclamation of the Governor, as authorized by article two-c of this chapter, the Workers' Compensation Commission was terminated on the thirty-first day of December, 2005. To further the transition from the state-operated workers' compensation system to a system of private insurance, the duties and responsibilities of the Workers' Compensation Commission and the board of managers, including, but not limited to, ratemaking and adjudication of claims now reside with the Insurance Commissioner.

WVC 23 - 1 - 1 A §23-1-1a. Workers' Compensation Board of managers; appointment; composition; qualifications; terms; chairperson; meetings and quorum; compensation and travel expenses; powers and duties.
(a) On the first day of October, two thousand three, the compensation programs performance council heretofore established in article three, chapter twenty-one-a of this code is hereby abolished and there is hereby created the "Workers' Compensation board of managers", which may also be referred to as "the board of managers" or "the board".

(b) (1) The board shall consist of eleven voting members as follows:

(A) The Governor or his or her designee;

(B) The Chief Executive Officer of the West Virginia Investment Management Board; if required to attend more than one meeting per month, he or she may send a designee to the additional meetings;

(C) The Executive Director of the West Virginia Development Office; if required to attend more than one meeting per month, he or she may send a designee to the additional meetings; and

(D) Eight members appointed by the Governor with the advice and consent of the Senate who meet the requirements and qualifications prescribed in subsections (c) and (d) of this section: Provided, That the members serving on the compensation programs performance council heretofore established in article three, chapter twenty-one-a of this code on the effective date of the enactment of this section in two thousand three are hereby appointed as members of the board of managers subject to the provisions of subdivision (1), subsection (c) of this section.

(2) Two members of the West Virginia Senate and two members of the West Virginia House of Delegates shall serve as advisory members of the board and are not voting members. The Governor shall appoint the legislative members to the board. No more than three of the legislative members may be of the same political party.

(c) (1) The initial eight appointed voting members of the board of managers shall consist of the members appointed under the provisions of paragraph (D), subdivision (1), subsection (a) of this section and the remaining members appointed pursuant to the provisions of subsection (d) of this section. The term of each of the initial appointed members shall expire on the thirty-first day of December, two thousand five.

(2) Effective the first day of January, two thousand six, if the commission continues, eight members shall be appointed by the Governor with the advice and consent of the Senate for terms that begin the first day of January, two thousand six, and expire as follows:

Two members shall be appointed for a term ending the thirtieth day of June, two thousand seven;

Three members shall be appointed for a term ending the thirtieth day of June, two thousand eight; and

Three members shall be appointed for a term ending the thirtieth day of June, two thousand nine.

(3) Except for appointments to fill vacancies, each subsequent appointment shall be for a term ending the thirtieth day of June of the fourth year following the year the preceding term expired. In the event a vacancy occurs, it shall be filled by appointment for the unexpired term. A member whose term has expired shall continue in office until a successor has been duly appointed and qualified. No member of the board may be removed from office by the Governor except for official misconduct, incompetency, neglect of duty or gross immorality.

(4) No appointed member may be a candidate for or hold elected office. Members may be reappointed for no more than two full terms.

(d) Except for those initially appointed under the provisions of paragraph (D), subdivision (1), subsection (b) of this section, each of the appointed voting members of the board shall be appointed based upon his or her demonstrated knowledge and experience to effectively accomplish the purposes of this chapter. They shall meet the minimum qualifications as follows:

(1) Each shall hold a baccalaureate degree from an accredited college or university: Provided, That no more than three of the appointed voting members may serve without a baccalaureate degree from an accredited college or university if the member has a minimum of fifteen years' experience in his or her field of expertise as required in subdivision (2) of this subsection;

(2) Each shall have a minimum of ten years' experience in his or her field of expertise. The Governor shall consider the following guidelines when determining whether potential candidates meet the qualifications of this subsection: Expertise in insurance claims management; expertise in insurance underwriting; expertise in the financial management of pensions or insurance plans; expertise as a trustee of pension or trust funds of more than two hundred beneficiaries or three hundred million dollars; expertise in Workers' Compensation management; expertise in loss prevention and rehabilitation; expertise in occupational medicine demonstrated by licensure as a medical doctor in West Virginia and experience, board certification or university affiliation; or expertise in similar areas of endeavor;

(3) At least one shall be a certified public accountant with financial management or pension or insurance audit expertise; at least one shall be an attorney with financial management experience; and one shall be an academician holding an advanced degree from an accredited college or university in business, finance, insurance or economics.

(e) Each member of the board shall have a fiduciary responsibility to the commission and all workers' compensation funds and shall assure the proper administration of the funds in a fiscally responsible manner.

(f) The board shall elect one member to serve as chairperson. The chairperson shall serve for a one-year term and may serve more than one consecutive term. The board shall hold meetings at the request of the chairperson or at the request of at least three of the members of the board, but no less frequently than once every three months. The chairperson shall determine the date and time of each meeting. Six members of the board constitute a quorum for the conduct of the business of the board. No vacancy in the membership of the board shall impair the right of a quorum to exercise all the rights and perform all the duties of the board. No action shall be taken by the board except upon the affirmative vote of six members of the board.

(g) Notwithstanding any provision of article seven, chapter six of this code to the contrary, the board shall establish the salary of the executive director. The board shall establish a set of performance measurements to evaluate the performance of the executive director in fulfilling his or her duties as prescribed in this chapter and shall annually rate the executive director's performance according to the established measurements and may adjust his or her annual salary in accordance with that performance rating.

(h) (1) Each voting appointed member of the board shall receive compensation of not more than three hundred fifty dollars per day for each day during which he or she is required to and does attend a meeting of the board.

(2) Each voting appointed member of the board is entitled to be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of official duties in a manner consistent with guidelines of the travel management office of the Department of Administration.

(i) Each member of the board shall be provided appropriate liability insurance, including, but not limited to, errors and omissions coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.

(j) The board of managers shall:

(1) Review and approve, reject or modify recommendations from the executive director for the development of overall policy for the administration of this chapter;

(2) In consultation with the executive director, propose legislation and establish operating guidelines and policies designed to ensure the effective administration and financial viability of the Workers' Compensation system of West Virginia;

(3) Review and approve, reject or modify rules that are proposed by the executive director for operation of the Workers' Compensation system before the rules are filed with the secretary of state. The rules adopted by the board are not subject to sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The board shall follow the remaining provisions of said chapter for giving notice to the public of its actions and for holding hearings and receiving public comments on the rules;

(4) In accordance with the laws, rules and regulations of West Virginia and the United States government, establish and monitor performance standards and measurements to ensure the timeliness and accuracy of activities performed under the Workers' Compensation laws and rules;

(5) Review and approve, reject or modify all classifications of occupations or industries, premium rates and taxes, administrative charges, rules and systems of rating, rating plans, rate revisions, deficit management and deficit reduction assessments and merit rating for employers covered by this chapter. The executive director shall provide all information required for the board's review;

(6) In conjunction with the executive director initiate, oversee and review all independent financial and actuarial reviews of the commission. The board shall employ an internal auditor for the purpose of examining internal compliance with the provisions of this chapter. The internal auditor shall be employed directly by the board. The internal auditor shall submit copies of all reports prepared by the internal auditor for the board to the joint committee on government and finance within five days of submitting or making the report to the board, by filing the report with the legislative librarian;

(7) Approve the allocation of sufficient administrative resources and funding to efficiently operate the Workers' Compensation system of West Virginia. To assure efficient operation, the board shall direct the development of a plan for the collections performed under section five-a, article two of this chapter. The plan for collections shall maximize ratio of dollars potentially realized by the collection proceeding to the dollars invested in collection activity;

(8) Review and approve, reject or modify the budget prepared by the executive director for the operation of the commission. The budget shall include estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices, furniture, equipment and supplies to all commission officers and employees;

(9) In consultation with the executive director, approve the designation of health care providers to make decisions for the Commission regarding appropriateness of medical services;

(10) Require the Workers' Compensation Commission to develop, maintain and use an effective program of return-to-work services for employers and workers;

(11) Require the Workers' Compensation Commission to develop, maintain and use thorough and efficient claims management procedures and processes and fund management in accordance with the generally accepted practices of the Workers' Compensation insurance industry;

(12) Consider such other matters regarding the Workers' Compensation system as the Governor, executive director or any member of the board may desire;

(13) Review and approve, reject or modify standards recommended by the executive director to be considered by the commission in making decisions on all levels of disability awards. The standards should be established as an effective means to make prompt, appropriate decisions relating to medical care and methods to assist employees to return to work as quickly as possible;

(14) Appoint, if necessary, a temporary executive director;

(15) Employ sufficient professional and clerical staff to carry out the duties of the board. Employees of the board shall serve at the will and pleasure of the board. The board's employees are exempt from the salary schedule or pay plan adopted by the Division of Personnel;

(16) Study the feasibility of, provide a plan for and provide a proposal for a request for proposals from the private sector for privatizing the Workers' Compensation system of this state, including, but not limited to, a plan for privatizing the administration of the Workers' Compensation system of this state and a plan for allowing employers to obtain private insurance to insure their obligations under the Workers' Compensation system of this state; study the effect, if any, of attorneys fees on the cost of administering the Workers' Compensation system; study the extent to which fraud or abuse on the part of employees, providers and others have an effect on the cost of administering the Workers' Compensation system; study the extent, if any, that the rates and amounts of disability awards exceed the rates and amounts of such awards in other states; study the comparative desirability of alternative permanent disability administration in those other states, and alternative deficit management strategies, including nontraditional funding; study the feasibility of authorizing a plan of multiple rate classifications by individual employers for employers who have different or seasonally diverse job classifications and duties: Provided, That no such plan may be implemented until adopted by the Legislature; and, in consultation with the director of the Division of Personnel, study the feasibility of establishing a work incentive program to place unemployed qualified recipients of Workers' Compensation benefits in state or local government employment. On or before the first day of January, two thousand six, the commission shall report the findings and conclusions of each study, the plans and proposals, and any recommendations the commission may have as a result of the study to the Joint Committee on Government and Finance; and

(17) Complete all duties set forth in article two-c of this chapter.

(k) The board of managers shall continue to exist pursuant to this article until the commission is terminated pursuant to the provisions of this chapter.

WVC 23 - 1 - 1 B §23-1-1b. Executive Director; qualifications; oath; seal; removal; powers and duties.
(a) The Executive Director shall be hired by the board of managers for a term not to exceed five years and may be retained based on overall performance for additional terms: Provided, That the Executive Director of the Division of Workers' Compensation on the date of the enactment of this section in the year two thousand three shall serve as the initial Executive Director of the Commission and shall receive the same salary and benefits as received as the Executive Director of the Division of Workers' Compensation through and until the board of managers establishes his or her salary and benefits as the Executive Director of the Commission. The position of Executive Director shall be full-time employment. Except for the initial Executive Director, candidates for the position of Executive Director shall have a minimum of a bachelor of arts or science degree from an accredited four-year college or university in one or more of the following disciplines: Finance; economics; insurance administration; law; public administration; accounting; or business administration. Candidates for the position of Executive Director will be considered based on their demonstrated education, knowledge and a minimum of ten years' experience in the areas of workers' compensation, insurance company management, administrative and management experience with an organization comparable in size to the Workers' Compensation Commission or any relevant experience which demonstrates an ability to effectively accomplish the purposes of this chapter.

(b) The Executive Director shall not be a candidate for or hold any other public office or trust, nor shall he or she be a member of a political committee. If he or she becomes a candidate for a public office or becomes a member of a political committee, his or her office as Executive Director shall be immediately vacated.

(c) The Executive Director, before entering upon the duties of his or her office, shall take and subscribe to the oath prescribed by section five, article IV of the state constitution. The oath shall be filed with the Secretary of State.

(d) The Executive Director shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words "West Virginia Workers' Compensation Commission" and any other design prescribed by the board of managers. The courts in this state shall take judicial notice of the seal of the Commission and in all cases copies of orders, proceedings or records in the office of the West Virginia Workers' Compensation Commission are equal to the original in evidence.

(e) The Executive Director shall not be a member of the board of managers.

(f) The Executive Director shall serve until the expiration of his or her term, resignation or until removed by a two-thirds vote of the full board of managers. The board of managers and the Executive Director may, by agreement, terminate the term of employment at any time.

(g) The Executive Director shall have overall management responsibility and administrative control and supervision within the Workers' Compensation Commission and has the power and duty to:

(1) Establish, with the approval of the board of managers, the overall administrative policy of the Commission for the purposes of this chapter;

(2) Employ, direct and supervise all employees required in the connection with the performance of the duties assigned to the Commission by this chapter and fix the compensation of the employees in accordance with the provisions of article six, chapter twenty-nine of this code: Provided, That the Executive Director shall identify which members of the staff of the Workers' Compensation Commission shall be exempted from the salary schedules or pay plan adopted by the state personnel board and further identify such staff members by job classification or designation, together with the salary or salary ranges for each such job classification or designation and shall file this information with the Director of the Division of Personnel no later than the thirty-first day of December, two thousand three, and thereafter as changes are made or at least annually: Provided, however, That, effective the first day of July, two thousand six, if the Commission has not been terminated or otherwise discontinued, all employees of the Commission shall be exempt and otherwise not under the jurisdiction of the provisions of the statutes, rules and regulations of the classified service set forth in article six, chapter twenty-nine of this code and article six-a of said chapter and are afforded no protections, rights or access to procedures set forth in said provision. All commission employees shall be employees at will unless his or her employment status is altered by an express, written employment contract executed on behalf of the Commission and the employee. The Commission and its employees shall be exempt and otherwise not under the jurisdiction of the state personnel board, the department of personnel, or any other successor agency, and their statutes, rules and regulations;

(3) Reorganize the work of the Commission, its divisions, sections and offices to the extent necessary to achieve the most efficient performance of its functions. All persons employed by the workers' compensation division in positions that were formerly supervised and directed by the Commissioner of the Bureau of Employment Programs under chapter twenty-one-a of this code are hereby assigned and transferred in their respective classifications to the Workers' Compensation Commission effective the first day of October, two thousand three. Further, the Executive Director may select persons that are employed by the Bureau of Employment Programs on the effective date of the enactment of this section in the year two thousand three to be assigned and transferred to the Workers' Compensation Commission in their respective classifications, such assignment and transfer to take effect no later than the thirty-first day of December, two thousand three. Employees in the classified service who have gained permanent status as of the effective date of this article will not be subject to further qualifying examination in their respective classifications by reason of any transfer required by the provisions of this subdivision. Due to the emergency currently existing at the Commission and the urgent need to develop fast, efficient claims processing, management and administration, the Executive Director is hereby granted authority to reorganize internal functions and operations and to delegate, assign, transfer, combine, establish, eliminate and consolidate responsibilities and duties to and among the positions transferred under the authority of this subdivision. The Division of Personnel shall cooperate fully by assisting in all personnel activities necessary to expedite all changes for the Commission. The Executive Director is hereby granted authority to reorganize internal functions and operations and to delegate, assign, transfer, combine, establish, eliminate and consolidate responsibilities and duties to and among the positions transferred under the authority of this subdivision. The Division of Personnel shall cooperate fully by assisting in all personnel activities necessary to expedite all changes for the Commission and shall otherwise continue to provide all necessary administrative support to the Commission in connection with the Commission's personnel needs until the company established in article two-c of this chapter becomes operational. Nothing contained in this subdivision shall be construed to either abridge the rights of employees within the classified service of the state to the procedures and protections set forth in article six, chapter twenty-nine of this code or to preclude the reclassification or reallocation of positions in accordance with procedures set forth in said article;

(4) Exempt no more than twenty-five of any of the newly created positions from the classified service of the state, the employees of which positions shall serve at the will and pleasure of the Executive Director. The Executive Director shall report all exemptions made under this subdivision to the Director of the Division of Personnel no later than the first day of January, two thousand four, and thereafter as the Executive Director determines to be necessary;

(5) With the advice and approval of the board of managers, propose operating guidelines and policies to standardize administration, expedite commission business and promote the efficiency of the services provided by the Commission;

(6) Prepare and submit to the board of managers information the board requires for classifications of occupations or industries; the basis for premium rates, taxes, surcharges and assessment for administrative charges, for assessments related to loss experience, for assessments of prospective risk exposure, for assessments of deficit management and deficit reduction costs incurred, for other deficit management and deficit reduction assessments, for rules and systems of rating, rate revisions and merit rating for employers covered by this chapter; and information regarding the extent, degree and amount of subsidization between the classifications. The Executive Director shall obtain, prepare and submit any other information the board of managers requires for the prompt and efficient discharge of its duties;

(7) Keep accurate and complete accounts and records necessary to the collection, administration and distribution of the workers' compensation funds;

(8) Sign and execute in the name of the state, by "The Workers' Compensation Commission", any contract or agreement;

(9) Make recommendations and an annual report to the Governor concerning the condition, operation and functioning of the Commission;

(10) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter;

(11) Prepare and submit for approval to the board of managers a budget for each fiscal year, including estimates of the costs and necessary expenditures of the Commission in the discharge of all duties imposed by this chapter as well as the costs of furnishing office space to the officers and employees of the Commission;

(12) Ensure that all employees of the Commission follow the orders, operating guidelines and policies of the Commission as they relate to the Commission's overall policymaking, management and adjudicatory duties under this chapter;

(13) Delegate all powers and duties vested in the Executive Director to his or her appointees and employees; but the Executive Director is responsible for their acts;

(14) Provide at commission expense a program of continuing professional, technical and specialized instruction for the personnel of the Commission. The Executive Director shall consult with and report at least annually to the Legislative Oversight Commission on Workforce Investment for Economic Development to obtain the most appropriate training using all available resources;

(15) (A) Contract or employ counsel to perform all legal services for the Commission including, but not limited to, representing the Executive Director, board of managers and commission in any administrative proceeding and in any state or federal court. Additionally, the Commission may, but shall not be required to, call upon the attorney general for legal assistance and representation as provided by law. The attorney general shall not approve or exercise authority over in-house counsel or contract counsel hired pursuant to this section;

(B) In addition to the authority granted by this section to the Executive Director and notwithstanding any provision to the contrary elsewhere in this code, use any attorney regularly employed by the Commission or the Office of the Attorney General to represent the Commission, the Executive Director or the board of managers in any matter arising from the performance of its duties or the execution of its powers under this chapter. In addition, the Executive Director, with the approval of the board of managers, may retain counsel for any purpose in the administration of this chapter relating to the collection of any amounts due from employers to the Commission: Provided, That the allocation of resources for the purpose of any collections shall be pursuant to the plan developed by the board of managers. The board of managers shall solicit proposals from counsel who are interested in representing the Commission under the terms of this subdivision. Thereafter, the board of managers shall select any attorneys it determines necessary to pursue the collection objectives of this subdivision:

(i) Payment to retained counsel may either be hourly or by other fixed fee, or as determined by the court or administrative law judge as provided in this section. A contingency fee payable from the amount recovered by judgment or settlement for the Commission is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible;

(ii) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the Commission results in a judgment or settlement in favor of the Commission, the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the Commission. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the Commission in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:

(I) The counsel's normal hourly rate or, if the counsel is an employee of the Commission or is an employee of the Office of the Attorney General, an hourly rate the court or the administrative law judge determines to be customary based upon the attorney's experience and skill level;

(II) The number of hours actually expended on the action;

(III) The complexity of the issues involved in the action;

(IV) The degree of risk involved in the case with regard to the probability of success or failure;

(V) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts and investigators; and

(VI) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the Commission;

(iii) Notwithstanding the provisions of paragraph (B) of this subdivision, if the Commission and the defendants or respondents to any administrative or judicial action settle the action, the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the Commission. In the event that a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval;

(iv) Any attorney regularly employed by the Commission or by the Office of the Attorney General may not receive any remuneration for his or her services other than the attorney's regular salary. Any attorneys' fees awarded for an employed attorney are payable to the Commission;

(16) Propose rules for promulgation by the board of managers under which agencies of this state shall revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the Commission with regard to the administration of this chapter. The term "agency" includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment agreement with the Commission and remains in compliance with its obligations under the repayment agreements;

(A) The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the Commission of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with the Commission, may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision shall remain in full force and effect as promulgated under section six, article two, chapter twenty-one-a of this code until the rules required by this subsection are promulgated and in effect;

(B) The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the Commission to be exempt from the provisions of the rules;

(17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon and attorneys' fees and costs collected under the provisions of this chapter. The amounts collected shall not be treated by the Auditor or Treasurer as part of the general revenue of the state;

(18) Recommend for approval of the board of managers rules for the administration of claims management by self-insured employers and third-party administrators including regulation and sanctions for the rejection of claims and for maintaining claim records and ensuring access to all claim records by interested claimants, claimant representatives, the Commission and the Office of Judges;

(19) Recommend for approval of the board of managers, rules to eliminate the ability of an employer to avoid an experience modification factor by virtue of a reorganization of a business;

(20) Submit for approval of the board of managers rules setting forth procedures for auditing and investigating employers, including employer premium audits and including auditing and investigating programs of self-insured employers and third-party administrators, employees, health care providers and medical and vocational rehabilitation service providers;

(21) Regularly audit and monitor programs established by self-insured or third-party administrators under this chapter to ensure compliance with the Commission's rules and the law;

(22) Facilitate the transfer of the fraud investigation and prosecution unit, along with the assets necessary to support the functions being performed, to the Insurance Commissioner. This transfer shall be completed by the first day of July, two thousand five. This unit has the responsibility and authority for investigating and controlling fraud of the Workers' Compensation System of the State of West Virginia and shall perform such other duties as may be assigned to it by the Insurance Commissioner. The fraud unit shall be under the supervision of an inspector general, who shall be appointed by the Insurance Commissioner. Nothing in this section shall preclude the Commission or, when applicable, the company created in article two-c of this chapter and other private carriers, from independently investigating and controlling abuse and exercising the powers granted to the Commission to address and eliminate abuse under this chapter. The Executive Director may select persons that are assigned to the fraud and abuse unit on the effective date of the enactment of this section to be assigned and remain employees of the Workers' Compensation Commission. The Commission shall determine its fiscal year two thousand six budget for the fraud investigation and prosecution unit and shall make advanced quarterly payments to the Insurance Commissioner during fiscal year two thousand six for the actual operational expenses incurred as a direct result of this transfer: Provided, That the payments and expenses shall be reconciled prior to the final fiscal year transfer and any unexpended amount shall be deducted from the final quarter's payment. This reimbursement methodology shall repeat for fiscal year two thousand seven. Any amounts transferred under this section to the Insurance Commissioner shall be appropriated by the Legislature. The Commission's inspector general shall serve as the initial inspector general for the Insurance Commissioner;

(A) The inspector general shall, with the consent and advice of the Executive Director, employ all personnel as necessary for the institution, development and finalization of procedures and investigations which serve to ensure that only necessary and proper workers' compensation benefits and expenses are paid to or on behalf of injured employees and to insure employers subscribe to and pay the proper premium to the West Virginia Workers' Compensation Commission. Qualification, compensation and personnel practice relating to the employees of the fraud and abuse unit, including that of the position of inspector general, shall be governed by the provisions of the statutes and rules of the classified service pursuant to article six, chapter twenty-nine of this code. The inspector general shall supervise all personnel, which collectively shall be referred to in this chapter as the fraud and abuse unit;

(B) The fraud and abuse unit shall have the following powers and duties:

(i) The fraud and abuse unit shall propose for promulgation by the board of managers rules for determining the existence of fraud and abuse as it relates to the Workers' Compensation System in West Virginia;

(ii) The fraud and abuse unit will be responsible for the initiation, development, review and proposal for promulgation by the board of managers of rules regarding the existence of fraud and abuse as it relates to the Workers' Compensation System in West Virginia;

(iii) The fraud and abuse unit will take action to identify and prevent and discourage any and all fraud and abuse;

(iv) The fraud and abuse unit, in cases of criminal fraud, has the authority to review and prosecute those cases for violations of sections twenty-four-e, twenty-four-f, twenty-four-g and twenty-four-h, article three, chapter sixty-one of this code, as well as any other criminal statutes that may be applicable. In addition the fraud and abuse unit not only has the authority to prosecute and refer cases involving criminal fraud to appropriate state authorities for prosecution, but it also has the authority, and is encouraged, to cooperate with the appropriate federal authorities for review and possible prosecution, by either state or federal agencies, of cases involving criminal fraud concerning the Workers' Compensation System in West Virginia;

(v) The fraud and abuse unit, in cases which do not meet the definition of criminal fraud, but would meet a reasonable person's definition of an abuse of the Workers' Compensation System, shall take the appropriate action to discourage and prevent such abuse. Furthermore, the fraud and abuse unit shall assist the Commission to develop evidence of fraud or abuse which can be used pursuant to the provisions of this chapter to suspend, and where appropriate, terminate, a claimant's benefits. In addition, evidence developed pursuant to these provisions can be used in hearings before the office of judges on protests to commission decisions terminating, or not terminating, temporary total disability benefits; and

(vi) The fraud and abuse unit is expressly authorized to initiate investigations and participate in the development of, and if necessary, the prosecution of any health care provider, including a provider of rehabilitation services, alleged to have violated the provisions of section three-c, article four of this chapter;

(C) Specific personnel, designated by the inspector general, shall be permitted to operate vehicles owned or leased for the state displaying Class A registration plates;

(D) Notwithstanding any provision of this code to the contrary, specific personnel designated by the inspector general may carry handguns in the course of their official duties after meeting specialized qualifications established by the Governor's Committee on Crime, Delinquency and Correction, which qualifications shall include the successful completion of handgun training provided to law-enforcement officers by the West Virginia State Police: Provided, That nothing in this subsection shall be construed to include the personnel so designated by the inspector general to carry handguns within the meaning of the term law-enforcement official as defined in section one, article twenty-nine, chapter thirty of this code;

(E) The fraud and abuse unit is not subject to any requirement of article nine-a, chapter six of this code and the investigations conducted by the fraud and abuse unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code;

(F) In the event that a final judicial decision adjudges that the statewide prosecutorial powers vested by this subdivision in the fraud and abuse unit may only be exercised by a public official other than an employee of the fraud and abuse unit, then to that extent the provisions of this subdivision vesting statewide prosecutorial power shall thenceforth be of no force and effect, the remaining provisions of this subdivision shall continue in full force and effect and prosecutions hereunder may only be exercised by the prosecuting attorneys of this state and their assistants or special assistant prosecuting attorneys appointed as provided by law;

(23) Enter into interagency agreements to assist in exchanging information and fulfilling the default provisions of this chapter;

(24) Notwithstanding any provision of this code to the contrary, the Executive Director, under emergency authorization:

(A) May expend up to fifty thousand dollars for purchases of and may contract for goods and services without securing competitive bids. This emergency spending authority expires on the first day of July, two thousand five; and

(B) May expend such sums as the Executive Director determines are necessary for professional services, contracts for the purchase of an automated claims administration system and associated computer hardware and software in the administration of claims for benefits made under provisions of this chapter and contracts for technical services and related services necessary to develop, implement and maintain the system and associated computer hardware and software. The provisions of article three, chapter five-a of this code relating to the purchasing division of the Department of Administration shall not apply to these contracts. The Director shall award the contract or contracts on a competitive basis. This emergency spending authority expires on the thirty-first day of December, two thousand six;

(25) Establish an employer violator system to identify individuals and employers who are in default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the Commission. The employer violator system shall prohibit violators who own, control or have a ten percent or more ownership interest, or other ownership interest as may be defined by the Commission, in any company from obtaining or maintaining any license, certificate or permit issued by the state until the violator has paid all moneys owed to the Commission or has entered into and remains in compliance with a repayment agreement;

(26) Propose the designation of health care providers to make decisions for the Commission regarding appropriateness of medical services;

(27) Study the correlation between premium tax merit rating for employers and the safety performance of employers. This study shall be completed prior to the first day of July, two thousand four, and the results thereof provided to the board of managers;

(28) Upon termination of the Commission, accomplish the transfer to the Insurance Commissioner established in article two-c of this chapter, the Insurance Commissioner, and any other applicable state agency or department, of the functions necessary for the regulation of the workers' compensation insurance industry, including, but not limited to, the following commission functions: Rate making, self-insurance, office of judges and board of review. The Executive Director may select persons that are assigned to these functions on the effective date of the enactment of this section to be assigned and become employees of the company as established in article two-c of this chapter. The Executive Director may, in consultation with the Insurance Commissioner, select persons that are assigned to the Insurance Commissioner. The Commission shall determine its fiscal year two thousand six budget for each of these functions, reduce the budget amount attributable to self-insured employers for these functions and shall make advanced quarterly payments to the Insurance Commissioner during fiscal year two thousand six for the actual operational expenses incurred as a direct result of this transfer. The amount shall include the funds necessary to operate the industrial council and the Insurance Commissioner shall be administratively responsible for the industrial council's budget: Provided, That the payments and expenses shall be reconciled prior to the final fiscal year transfer and any unexpended amount shall be deducted from the final quarter's payment. This reimbursement methodology shall repeat for fiscal year two thousand seven. Any amounts transferred under this section to the Insurance Commissioner shall be appropriated by the Legislature. For the final calendar quarter of two thousand five and the first and second calendar quarters of the year two thousand six, all self-insured employers shall remit to the Insurance Commissioner on a quarterly basis the administrative component of their fiscal year two thousand six rate. For the fiscal year beginning the first day of July, two thousand six, self-insured employers shall remit an administrative charge to the Insurance Commissioner in an amount determined by the Commissioner. All self-insured employer advance deposits shall transfer from the Commission to the Insurance Commissioner upon termination of the Commission; and

(29) Perform all duties set forth in article two-c of this chapter.

WVC 23 - 1 - 1 C §23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and agents making contracts on behalf of the State of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of contracts until the receipt of a certificate from the commission or the company created in article two-c of this chapter to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter as of the termination of the commission have been paid or that provisions satisfactory to the commission or company created in article two-c of this chapter have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for not more than one year, or both fined and confined.

(b) Any agency of the state, for the limited purpose of intercepting, pursuant to section five-a, article two of this chapter, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter, shall assist the commission or company created in article two-c of this chapter in collecting the payment that is due under subsection (a) of this section. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation as provided in section six-c, article one, chapter twenty-one-a of this code and Workers' Compensation contributions, premiums, interest, deposits or penalties is authorized. The commission and the bureau of employment programs may enter into an interagency agreement to effect the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the Department of Tax and Revenue, the Department of Administration, the Division of Highways or other appropriate state agency or officer.

WVC 23 - 1 - 1 D §23-1-1d. Rules of former division of workers' compensation.
Except as otherwise provided for in this chapter, all rules applicable to the former workers' compensation division of the bureau of employment programs are hereby adopted and made effective as to the operation of the workers' compensation commission under this chapter to the extent that they are not in conflict with the current law. The board of managers shall review and approve, modify or replace all existing rules no later than the first day of July, two thousand six.

WVC 23 - 1 - 1 E §23-1-1e. Transfer of assets and contracts; ability to acquire, own, lease and otherwise manage property.
(a) With the establishment of the Workers' Compensation Commission, all assets and contracts, along with rights and obligations thereunder, obtained or signed on behalf of the Workers' Compensation Division of the Bureau of Employment Programs in furtherance of the purposes of this chapter, are hereby transferred and assigned to the Workers' Compensation Commission.

(b) From the termination of the commission through the thirtieth day of June, two thousand eight, the company may continue to contract and exchange data and information with the office of information, services and communication, the Bureau of Employment Programs, the Division of Motor Vehicles, various child support enforcement agencies and other similar state agencies and entities in a manner similar to the commission to accomplish the intent of this chapter.

WVC 23 - 1 - 1 F §23-1-1f. Authority of Insurance Commission to exempt employees from classified service; exemption from purchasing rules.
Notwithstanding any other provision of this code, upon termination of the commission, the Insurance Commissioner may:

(1) Exempt no more than twenty positions of the offices of the Insurance Commissioner from the classified service of the state, the employees of which positions shall serve at the will and pleasure of the commissioner: Provided, That such exempt positions shall be in addition to those positions in classified-exempt service under the classification plan adopted by the Division of Personnel. The Insurance Commissioner shall report all exemptions made under this section to the Director of the Division of Personnel no later than the first day of July, two thousand seven, and thereafter as the commissioner determines to be necessary; and

(2) Expend such sums for professional services as he or she determines are necessary to perform those duties transferred to the Insurance Commissioner upon the termination of the commission. The provisions of article three, chapter five-a of this code relating to the Purchasing Division of the Department of Administration shall not apply to these contracts, and the Insurance Commissioner shall award the contract or contracts on a competitive basis.

WVC 23 - 1 - 1 G §23-1-1g. Legislative intent to create a quasi-public entity.
In recognition of the impact a state's workers' compensation premium levels may have on the state's ability to conduct economic development and the resulting need to operate the state's Workers' Compensation system in such a manner that will enable the lowest premiums to be charged employers while at the same time ensuring adequate benefit levels are provided to injured workers, it is the intent of the Legislature that the Workers' Compensation Commission remain a commission of the state as provided in article two, chapter five-f of this code until the company created in article two-c of this chapter is created and operational and the New Fund created in article two-c of this chapter has been funded. Until the termination of the commission and in order for the commission to be able to capture the efficiencies associated with private sector operations, the Workers' Compensation Commission is exempt from the provisions of the following effective upon the date upon which this enactment is made effective by the Legislature:

(a) Article three, chapter five-a, related to the Department of Administration Purchasing Division; and

(b) Section eleven, article three, chapter twelve, relating to appropriations, expenditures and deductions.

WVC 23 - 1 - 2 §23-1-2. Oversight of the workers' compensation commission.
(a) In addition to any other oversight of the commission exercised by the Legislature, the commission shall report at least quarterly to the joint committee on government and finance and the joint commission on economic development. The commission shall collect data and report on claims and injuries and on the costs and outcomes of injuries by standard codes for medical treatment, vocation rehabilitation services, return-to-work services, other benefits payable to or on behalf of employees, efforts to eliminate fraud and abuse and the impact of judicial and quasijudicial rulings on the administration of the workers' compensation system and the solvency of the fund. The workers' compensation commission shall provide to the joint committee on government and finance and the joint commission on economic development an action plan for improving the workers' compensation system. This plan shall include detail on any administrative changes undertaken by the commission, a report on the anticipated outcome of the changes, a cost-benefit analysis of the changes and time frames for commencement and completion of these changes. Subsequent reports to the joint committee on government and finance and the joint commission on economic development shall report on the progress of these changes. The administrative changes shall include, but are not limited to, claims processing, reorganization, staff development and training, return-to-work programs, workplace alternatives for injured workers, safety programs and medical and vocational services.

(b) The commission shall also report on the current status of the workers' compensation fund and the coal-workers' pneumoconiosis fund. This analysis shall include the current balances in the fund and revenue generated and expended in relationship to the liabilities and assets of the funds and estimates of any debt reduction relative to the fund over the next reporting period.

(c) The commission shall further report on the impact on the workers' compensation system of the amendments to subdivision (2), subsection (n), section six, article four of this chapter enacted during the year two thousand three, including, but not limited to, an analysis of any litigation resulting from the amendments and the availability of health care to injured workers resulting from the amendments.

(d) The commission shall further report on methodologies used to establish all types of assessments and rates.

(e) The commission shall further report on legislative action that may be required to further improve the operation of the commission.

(f) The commission shall further report on efforts to eliminate fraud and abuse including a statistical breakdown of investigations being conducted and their outcomes. The commission shall report to the joint committee on government and finance on a monthly basis until the first day of July, two thousand four, on fraud and abuse and quarterly thereafter.

WVC 23 - 1 - 3 §23-1-3. Payment of salaries and expenses generally; manner; limitation.
(a) All expenses peculiar to the administration of this chapter and, when on official business, the travel and incidental expenses of the executive director and salaries or other compensation, traveling and other expenses of all officers or employees of the commission and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation, safety maintenance or professional designation in which the executive director considers it advisable to maintain membership shall be paid out of the workers' compensation fund.

(b) All payments of salaries and expenses in the administration of this chapter shall be made by the state treasurer upon requisition signed by the executive director, directed to the auditor of the state, who shall draw his or her warrant therefor, and the payment shall be charged to the workers' compensation fund: Provided, That the total charges against the fund under this section for any one fiscal year shall not exceed the amount appropriated for the administration of this chapter.

WVC 23 - 1 - 4 §23-1-4. Office hours; records; confidentiality; exceptions.
(a) The offices of the workers' compensation commission shall be open for the transaction of business between the hours of eight-thirty o'clock a.m. and five o'clock p.m. of each and every day, excepting Saturdays, Sundays and legal holidays, and be open upon any additional days and at any additional times elected by the commission. The executive director is the chief executive officer of the workers' compensation commission.

(b) Except as expressly provided for in this subsection, information obtained regarding employers and claimants pursuant to this chapter for the purposes of its administration is not subject to the provisions of chapter twenty-nine-b of this code unless the provisions are hereafter specifically made applicable, in whole or in part. The information that is reasonably necessary may be released in formal orders or opinions of any tribunal or court which is presented with an issue arising under this chapter as well as in the presentations of the parties before the tribunal or court. Similarly, claimants or other interested parties to an issue arising under this chapter may, upon request, obtain information from the commission's records to the extent necessary for the proper presentation or defense of a claim or other matter. Information may be released pursuant to the provisions of chapter twenty-nine-b of this code only if all identifying information has first been eliminated from the records. Nothing in this subsection shall prevent the release of information to another agency of the state or of the federal government for the legitimate purposes of those agencies: Provided, That the agency shall guarantee the confidentiality of the information provided to the fullest extent possible in keeping with its own statutory and regulatory mandates. Nothing in this section shall prevent the commission from complying with any subpoena duces tecum: Provided, however, That the issuing tribunal or court shall take such actions as proper to maintain the confidentiality of the information.

The commission may release, pursuant to a proper request under the provisions of chapter twenty-nine-b of this code, the following information:

(1) The base premium tax rate for a specific employer;

(2) Whether or not a specific employer has obtained coverage under the provisions of this chapter;

(3) Whether or not a specific employer is in good standing or is delinquent or in default according to the commission's records and the time periods thereof; and

(4) If a specific employer is delinquent or in default, what the payments due the commission are and what the components of that payment are, including the time periods affected.

WVC 23 - 1 - 4 A §23-1-4a. Bond for executive director and associate director.
(a) The executive director and associate director of the workers' compensation commission shall give bond in an amount determined by the board of managers conditioned for the faithful management of the fund and performance of their duties. The bond shall be approved by the attorney general as to form. The surety of the bond may be a bonding or surety company, in which case the premium shall be paid out of the workers' compensation fund.

(b) The executive director and associate director shall be provided appropriate insurance, including, but not limited to, errors and omission coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.

WVC 23 - 1 - 5 §23-1-5. Office of executive director; hearings.
The executive director shall keep and maintain his or her office at the seat of government and shall provide a suitable room or rooms, necessary office furniture, supplies, books, periodicals, maps and other equipment. After due notice, showing the time and place, the executive director may hold hearings anywhere within the state, or elsewhere by agreement of claimant and employer, with the approval of the executive director.

WVC 23 - 1 - 6 §23-1-6. Employment of associate director and other assistants; compensation and travel expenses.
(a) The executive director may employ an associate director, actuary, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants, and fix their compensation, which shall be paid as provided in section three of this article. The associate director shall be hired with the approval of the board of managers and serves at the will and pleasure of the executive director.

(b) The associate director, supervisory officers, actuaries, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants who may be employed are entitled to receive from the workers' compensation fund their necessary expense while traveling on business of the commission. Travel reimbursement shall be paid in accordance with the travel guidelines established by the department of administration. All expenses shall be itemized and sworn to by the person who incurred the expense, and are subject to the approval of the executive director: Provided, That the expenses of the executive director shall be subject to the approval of the board of managers.

WVC 23 - 1 - 7 §23-1-7. Associate director to act during executive director's absence or inability to act and in case of vacancy; bond of associate director.
Whenever it appears that the executive director will be absent or unable to act for one week or more, the associate director of the commission may be designated by the executive director to act during his or her absence or inability to act, and during that period he or she shall have all the duties and powers of the executive director. In the event a vacancy occurs in the office of executive director, the associate director shall have all the duties and powers of the executive director until an executive director or a temporary executive director is hired by the board of managers. The board of managers may determine the amount of additional compensation the associate director may receive as acting executive director.

WVC 23 - 1 - 8 §23-1-8. Authority of executive director and employees as to oaths and evidence.
The executive director, associate director and other employees appointed by the executive director may, for the purpose contemplated by this chapter, administer oaths, certify official acts, take depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents and testimony.

WVC 23 - 1 - 9 §23-1-9. Compelling compliance with order or subpoena.
In case of failure or refusal of any person to comply with the order of the executive director, or subpoena issued by him or her, the associate director, or duly appointed employee, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, or refusal to permit an inspection as aforesaid, the circuit judge of the county in which the person resides, on application of the executive director, associate director or any duly appointed employee, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from the court on a refusal to testify in the court.

WVC 23 - 1 - 10 §23-1-10. Fee of officer serving subpoena; fees and mileage of witnesses.
Each officer who serves subpoenas on behalf of the commission shall receive the same fee as a sheriff and each witness who appears in obedience to a subpoena before the executive director, associate director or duly appointed employee shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in the circuit court, which shall be audited and paid out of the workers' compensation fund in the same manner as other expenses are audited and paid, if the witness was subpoenaed without the request of either claimant or employer at the instance of the executive director, associate director or duly appointed employee. The witness fees and mileage of any witness subpoenaed by, or at the instance of, either claimant or employer shall be paid by the party who subpoenas the witness.

WVC 23 - 1 - 11 §23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under articles one through five, inclusive, of this chapter, the commission may cause depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in the circuit court, but the depositions shall be upon reasonable notice to claimant and employer or other affected persons or their respective attorneys. The commission shall designate the person to represent it for the taking of the deposition.

(b) The commission also has discretion to accept and consider depositions taken within or without the state by either the claimant or employer or other affected person, provided due and reasonable notice of the taking of the depositions was given to the other parties or their attorneys, if any: Provided, That the commission, upon due notice to the parties, has authority to refuse or permit the taking of depositions or to reject the depositions after they are taken, if they were taken at a place or under circumstances which imposed an undue burden or hardship upon the other parties. The commission's discretion to accept, refuse to approve or reject the depositions is binding in the absence of abuse of the discretion.

(c) The powers and duties set forth in the section shall be transferred from the Workers' Compensation Commission to the insurance commissioner upon termination of the commission.

WVC 23 - 1 - 12 §23-1-12. Copies of proceedings as evidence.
A transcribed copy of the evidence and proceedings, or any specific part thereof, on any investigation or hearing, taken by a stenographer appointed by the executive director and certified and sworn to by the stenographer to be a true and correct transcript of the testimony in the investigation or hearing, or of a particular witness, or of a specific part thereof, or to be a correct transcript of the proceedings had on the investigation or hearing purporting to be taken and subscribed, may be received in evidence by the executive director with the same effect as if the stenographer were present and testified to the facts certified. A copy of the transcript shall be furnished on demand to any party upon payment of the fee prescribed in the rules and policies of the commission. The fee shall not exceed that prescribed for transcripts in the circuit court.

WVC 23 - 1 - 13 §23-1-13. Rules of procedure and evidence; persons authorized to appear in proceedings; withholding of psychiatric and psychological reports and providing summaries thereof.
(a) The Workers' Compensation Commission shall adopt reasonable and proper rules of procedure, regulate and provide for the kind and character of notices, and the service of the notices, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the method of taking and furnishing of evidence to establish the rights to benefits or compensation from the fund hereinafter provided for, or directly from employers as hereinafter provided, as the case may require, and the method of making investigations, physical examinations and inspections and prescribe the time within which adjudications and awards shall be made.

(b) At hearings and other proceedings before the commission or before the duly authorized representative of the commission, an employer who is a natural person may appear, and a claimant may appear, only as follows:

(1) By an attorney duly licensed and admitted to the practice of law in this state;

(2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0 - admission pro hac vice, West Virginia Supreme Court Rules for admission to the practice of law, as amended;

(3) By a representative from a labor organization who has been recognized by the commission as being qualified to represent a claimant or who is an individual otherwise found to be qualified by the commission to act as a representative. The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to the facts and figures; or

(4) Pro se.

(c) At hearings and other proceedings before the commission or before the duly authorized representative of the commission, an employer who is not a natural person may appear only as follows:

(1) By an attorney duly licensed and admitted to the practice of law in this state;

(2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0 - admission pro hac vice, West Virginia Supreme Court Rules for admission to the practice of law, as amended;

(3) By a member of the board of directors of a corporation or by an officer of the corporation for purposes of representing the interest of the corporation in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to the facts and figures; or

(4) By a representative from an employer service company who has been recognized by the commission as being qualified to represent an employer or who is an individual otherwise found to be qualified by the commission to act as a representative. The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to the facts and figures.

(d) The commission or its representative may require an individual appearing on behalf of a natural person or corporation to produce satisfactory evidence that he or she is properly qualified and authorized to appear pursuant to this section.

(e) Subsections (b), (c) and (d) of this section shall not be construed as being applicable to proceedings before the office of judges pursuant to the provisions of article five of this chapter.

(f) At the direction of a treating or evaluating psychiatrist or clinical doctoral-level psychologist, a psychiatric or psychological report concerning a claimant who is receiving treatment or is being evaluated for psychiatric or psychological problems may be withheld from the claimant. In that event, a summary of the report shall be compiled by the reporting psychiatrist or clinical doctoral-level psychologist. The summary shall be provided to the claimant upon his or her request. Any representative or attorney of the claimant must agree to provide the claimant with only the summary before the full report is provided to the representative or attorney for his or her use in preparing the claimant's case. The report shall only be withheld from the claimant in those instances where the treating or evaluating psychiatrist or clinical doctoral-level psychologist certifies that exposure to the contents of the full report is likely to cause serious harm to the claimant or is likely to cause the claimant to pose a serious threat of harm to a third party.

(g) In any matter arising under articles one through five, inclusive, of this chapter in which the commission is required to give notice to a party, if a party is represented by an attorney or other representative, then notice to the attorney or other representative is sufficient notice to the party represented.

(h) The powers and duties set forth in the section shall be transferred from the Workers' Compensation Commission to the insurance commissioner upon termination of the commission.

WVC 23 - 1 - 14 §23-1-14. Forms.
The commission shall prepare and furnish free of cost forms (and provide in his or her rules for their distribution so that they may be readily available) of applications for benefits for compensation from the Workers' Compensation Fund, or directly from employers, as the case may be, notices to employers, proofs of injury or death, of medical attendance, of employment and wage earnings and any other forms considered proper and advisable. It is the duty of employers to constantly keep on hand a sufficient supply of the forms. The powers and duties set forth in the section shall be transferred from the Workers' Compensation Commission to the insurance commissioner as of the termination of the commission.

WVC 23 - 1 - 15 §23-1-15. Procedure before commission.
The commission, and the Insurance Commissioner effective upon termination of the commission, are not bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in a manner that in his or her judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.

WVC 23 - 1 - 16 §23-1-16.
Repealed.

Acts, 1999 Reg. Sess., Ch. 294.

WVC 23 - 1 - 17 §23-1-17. Annual report by the Insurance Commissioner and Occupational Pneumoconiosis Board.
Annually, on or about the fifteenth day of September in each year, the Insurance Commissioner and the Occupational Pneumoconiosis Board shall make a report as of the thirtieth day of June addressed to the Governor, which shall include a statement of the causes of the injuries for which the awards were made, an explanation of the diagnostic techniques used by the Occupational Pneumoconiosis Board and all examining physicians to determine the presence of disease, the extent of impairment attributable thereto, a description of the scientific support for the diagnostic techniques and a summary of public and private research relating to problems and prevention of occupational diseases. The report shall include a detailed statement of all disbursements, and the condition of the fund, together with any specific recommendations for improvements in the Workers' Compensation law and for more efficient and responsive administration of the Workers' Compensation law, which the executive director considers appropriate. Copies of all annual reports shall be filed with the secretary of state and shall be made available to the Legislature and to the public at large.

WVC 23 - 1 - 18 §23-1-18. Commission employees not subject to subpoena for workers' compensation hearings.
No employee of the workers' compensation commission shall be compelled to testify as to the basis, findings or reasons for any decision or order rendered by the employee under this chapter in any hearing conducted pursuant to article five of this chapter.

WVC 23 - 1 - 19 §23-1-19. Civil remedies.
(a) Any person, firm, corporation or other entity which willfully, by means of false statement or representation, or by concealment of any material fact, or by other fraudulent scheme, device or artifice on behalf of himself, itself or others, obtains or attempts to obtain benefits, payments, allowances or reduced premium costs or other charges, including Workers' Compensation coverage under the programs of the Workers' Compensation Commission, the company, a private carrier or self-insured employer, to which he or it is not entitled, or in a greater amount than that to which he or it is entitled, shall be liable to the Workers' Compensation Commission, the company, the private carrier or self-insured employer, in an amount equal to three times the amount of such benefits, payments or allowances to which he or it is not entitled and shall be liable for the payment of reasonable attorney fees and all other fees and costs of litigation.

(b) No criminal action or indictment need be brought against any person, firm, corporation or other entity as a condition for establishing civil liability hereunder.

(c) A civil action under this section may be prosecuted and maintained on behalf of the Workers' Compensation Commission, the Insurance Commissioner, the company, a private carrier or self-insured employer by any attorney in contract with or employed by the Workers' Compensation Commission, the Insurance Commissioner, the company, a private carrier or self-insured employer to provide such representation.

(d) Venue for a civil action under this section shall be either in the county in which the defendant resides or in Kanawha County as selected by the commission or Insurance Commissioner. Upon creation of the company pursuant to article two-c of this chapter, venue for a civil action under this section for the company, private carriers and self-insured employers shall be either in the county in which the defendant resides or the county in which the injured worker was employed, as selected by the company, the private carrier or self-insured employer.

(e) The remedies and penalties provided in this section are in addition to those remedies and penalties provided elsewhere by law.

WVC 23 - 1 - 20 §23-1-20. Employment preference for employees in workers' compensation litigation unit.
(a) The Legislature finds that, as claims against the Workers' Compensation Old Fund continue to decrease, persons currently employed on a permanent basis by the Attorney General in the workers' compensation litigation unit may soon face layoffs due to the decreasing workload. The Legislature hereby declares that such employees should have certain preferences if they seek continued employment with the state.

(b) Notwithstanding any provision of this code to the contrary, any person, not a temporary or probationary employee, employed by the Attorney General in the workers' compensation litigation unit who is laid off as a result of a decreased workload, shall be afforded the opportunity to transfer to other state employment if he or she is an employee in good standing at the time of the layoff.

(c) The Attorney General shall establish and maintain, for a period of two years, a list of all employees who are eligible for employment due to a layoffs pursuant to this section, and who wish to remain eligible for employment with the state. The Attorney General shall give priority to any person on the list for employment in an available position equivalent to the position that person held in the workers' compensation litigation unit unless the Attorney General determines that the person is less qualified than other applicants for the position.

(d) Notwithstanding any other provision of this code to the contrary, the Division of Personnel shall maintain, for a period of two years, a list of employees who were laid off as a result of the reduction in the work force occasioned by the decreasing work load of the workers' compensation litigation unit within the office of the Attorney General. Any such employee shall be given preference in hiring for any position in classified or exempt service for which he or she is qualified and applies. The Director of the Division of Personnel may propose for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, a legislative rule to effectuate the requirements of this section.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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