COMMITTEE SUBSTITUTE
FOR
H. B. 4636
(By Delegate Kominar]
(Originating in the Committee on the Judiciary)
[February 25, 2008]
A BILL to amend and reenact §5A-3-10a of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §23-2-9a; to amend and reenact §23-2C-3,
§23-2C-15 and §23-2C-17 of said code; and to amend and reenact
§23-5-1 and §23-5-11 of said code, all relating to workers'
compensation insurance; prohibiting public contracts with
employers in workers' compensation default; providing for the
termination of licenses and permits to employers in workers'
compensation default; requiring the proposal of rules to
regulate certain third-party administrators; requiring
proposal of rules relating to establishing penalties for
certain defaults; changing period of notice for cancellation
of policies; establishing fixed percentages for determining
surcharges on covered employers and permitting recalculation
of such percentages; eliminating certain carrier reporting
requirments; changing periods within which private carriers
must notify the Insurance Commissioner regarding coverage
status; limiting employer protests; increasing the periods in which to file objections to claims decisions; providing for
conditional payment of benefits; providing that corrective
orders do not nullify pending protests; providing for proposal
of rules relating to establishing a trial return to work
period for employees; and increasing salaries of members of
the Board of Review.
Be it enacted by the Legislature of West Virginia:
That §5A-3-10a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §23-2-9a; that §23-2C-3,
§23-2C-15 and §23-2C-17 of said code be amended and reenacted; and
that §23-5-1 and §23-5-11 of said code be amended and reenacted,
all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-10a. Prohibition for awarding contracts to vendors which
owe a debt to the state or its political
subdivisions.
(a) Unless the context clearly requires a different meaning,
for the purposes of this section, the terms:
(1) "Debt" means any assessment, premium, penalty, fine, tax
or other amount of money owed to the state or any of its political
subdivisions because of a judgment, fine, permit violation, license
assessment, amounts owed to the workers' compensation funds as
defined in article two-c,
of chapter twenty-three of this code,
penalty or other assessment or surcharge presently delinquent or
due and required to be paid to the state or any of its political subdivisions, including any interest or additional penalties
accrued thereon.
(2) "Debtor" means any individual, corporation, partnership,
association, limited liability company or any other form or
business association owing a debt to the state or any of its
political subdivisions,
and includes any person or entity that is
in employer default.
(3) "Political subdivision" means any county commission;
municipality; county board of education; any instrumentality
established by a county or municipality; any separate corporation
or instrumentality established by one or more counties or
municipalities, as permitted by law; or any public body charged by
law with the performance of a government function and whose
jurisdiction is coextensive with one or more counties or
municipalities.
(4) "Related party" means a party, whether an individual,
corporation, partnership, association, limited liability company or
any other form or business association or other entity whatsoever,
related to any vendor by blood, marriage, ownership or contract
through which the party has a relationship of ownership or other
interest with the vendor so that the party will actually or by
effect receive or control a portion of the benefit, profit or other
consideration from performance of a vendor contract with the party
receiving an amount that meets or exceeds five percent of the total
contract amount.
(5) "Employer default" has the same meaning ascribed to it in
subdivision (1), subsection (e), section nineteen, article two-c, chapter twenty-three of this code.
(b) No contract or renewal of any contract may be awarded by
the state or any of its political subdivisions to any vendor or
prospective vendor when the vendor or prospective vendor or a
related party to the vendor or prospective vendor is a debtor and
(1) The debt owed is an amount greater than one thousand
dollars in the aggregate;
or
(2) The debtor is in employer default.
(c) The prohibition of this section does not apply where a
vendor has contested any tax administered pursuant to chapter
eleven of this code, amount owed to the workers' compensation funds
as defined in article two-c,
of chapter twenty-three of this code,
permit fee or environmental fee or assessment and the matter has
not become final or where the vendor has entered into a payment
plan or agreement and the vendor is not in default of any of the
provisions of such plan or agreement.
(d) All bids, contract proposals or contracts with the state
or any of its political subdivisions submitted or approved under
the provisions of this code shall include an affidavit that the
vendor, prospective vendor or a related party to the vendor or
prospective vendor
is not in employer default and does not owe any
debt in an amount in excess of one thousand dollars or, if a debt
is owed, that the provisions of subsection (c) of this section
apply.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO THIS CHAPTER;
EXTRATERRITORIAL COVERAGE
§23-2-9a. Sanctions for default by self-insured employers;
rulemaking authority.
Whenever the authority of an employer to self-insure its
obligations under this chapter is terminated and such employer is
thereafter in default in the payment of any portion of surcharges
or assessments required under this chapter or by rules promulgated
thereunder, or in any payment required to be made as benefits
provided by this chapter to the employer's injured employees or
dependants of fatally injured employees, such employer shall be
ineligible for government contracts to the same extent as an
employer in "employer default," as provided for in section ten-a,
article three, chapter five-a of this code, and shall also be
subject to the license and permit revocation and termination
sanctions to the same extent as employers in "employer default"
pursuant to the provisions of subdivision (1), subsection (e),
section nineteen, article two-c of this chapter.
The Insurance
Commissioner shall propose rules, as provided in section five,
article two-c of this chapter, establishing pe
nalties for
nonpayment of obligations under this chapter
.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-3. Creation of employer mutual as successor organization of
the West Virginia Workers' Compensation Commission.
(a) (1) On or before the first day of June, two thousand five,
the executive director may take such actions as are necessary to
establish an employers' mutual insurance company as a domestic,
private, nonstock, corporation to:
(1) (A) Insure employers against liability for injuries and
occupational diseases for which their employees may be entitled to
receive compensation pursuant to this chapter twenty-three of this
code and federal Longshore and Harbor Workers' Compensation Act, 33
U.S.C. §901, et seq.;
(2) (B) Provide employer's liability insurance incidental to
and provided in connection with the insurance specified in
subdivision (1) paragraph (A) of this subdivision, including
coal-workers' pneumoconiosis coverage and employer excess liability
coverage as provided in this chapter; and
(3) (C) Transact such other kinds of property and casualty
insurance for which the company is otherwise qualified under the
provisions of this code.
(4) (2) The company shall may not sell, assign or transfer
substantial assets or ownership of the company.
(b) If the executive director establishes a domestic mutual
insurance company pursuant to subsection (a) of this section:
(1) As soon as practical, the company established pursuant to
the provisions of this article shall, through a vote of a majority
of its provisional board, file its corporate charter and bylaws
with the Insurance Commissioner and apply for a license with the
Insurance Commissioner to transact insurance in this state.
Notwithstanding any other provision of this code, the Insurance
Commissioner shall act on the documents within fifteen days of the
filing by the company.
(2) In recognition of the workers' compensation insurance
liability insurance crisis in this state at the time of enactment of this article and the critical need to expedite the initial
operation of the company, the Legislature hereby authorizes the
Insurance Commissioner to review the documentation submitted by the
company and to determine the initial capital and surplus
requirements of the company, notwithstanding the provisions of
section five-b, article three, chapter thirty-three of this code.
The company shall furnish the Insurance Commissioner with all
information and cooperate in all respects necessary for the
Insurance Commissioner to perform the duties set forth in this
section and in other provisions of this chapter and chapter
thirty-three of this code. The Insurance Commissioner shall
monitor the economic viability of the company during its initial
operation on not less than a monthly basis, until such time as the
commissioner, in his or her discretion, determines that monthly
reporting is not necessary. In all other respects the company
shall be subject to comply with the applicable provisions of
chapter thirty-three of this code.
(3) Subject to the provisions of subdivision (4) of this
subsection, the Insurance Commissioner may waive other requirements
imposed on mutual insurance companies by the provisions of chapter
thirty-three of this code as the Insurance Commissioner determines
is are necessary to enable the company to begin insuring employers
in this state at the earliest possible date.
(4) Within forty months of the date of the issuance of its
license to transact insurance, the company shall comply with the
capital and surplus requirements set forth in subsection (a),
section five-b, article three, chapter thirty-three of this code in effect on the effective date of this enactment, unless said the
deadline is extended by the Insurance Commissioner.
(c) For the duration of its existence, the company is not and
shall not be considered a department, unit, agency or
instrumentality of the state for any purpose. All debts, claims,
obligations and liabilities of the company, whenever incurred,
shall be are the debts, claims, obligations and liabilities of the
company only and not of the state or of any department, unit,
agency, instrumentality, officer or employee of the state.
(d) The moneys of the company are not and shall not be
considered part of the General Revenue Fund of the state. The
debts, claims, obligations and liabilities of the company are not
and shall not be considered a debt of the state or a pledge of the
credit of the state.
(e) The company is not subject to provisions of article
nine-a, chapter six of this code; the provisions of article two,
chapter six-c of this code; the provisions of chapter twenty-nine-b
of this code; the provisions of article three, chapter five-a of
this code; the provisions of article six, chapter twenty-nine of
this code; the provisions of article six-a of said chapter; or the
provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon said
the termination, private carriers, including the company, shall not
be are not subject to payment of premium taxes, surcharges and
credits contained in article three, chapter thirty-three of this
code on premiums received for coverage under this chapter. In lieu
thereof, the workers' compensation insurance market shall be is subject to the following:
(1) (A) Each fiscal year, the Insurance Commissioner shall
calculate a percentage surcharge to be collected by each private
carrier from its policyholders. The surcharge percentage shall be
calculated by dividing the previous fiscal year's total premiums
collected plus deductible payments by all employers into the
portion of the Insurance Commissioner's budget amount attributable
to regulation of the private carrier market. This resulting
percentage shall be applied to each policyholder's premium payment
and deductible payments as a surcharge and remitted to the
Insurance Commissioner. Said surcharge shall be remitted within
ninety days of receipt of premium payments;
(B) With respect to fiscal years beginning on and after the
first day of July, two thousand eight, in lieu of the surcharge set
forth in the preceding paragraph, each private carrier shall
collect a surcharge in the amount of five and five-tenths percent
of the premium collected plus the total of all premium discounts
based on deductible provisions that were applied to policies issued
or renewed in the prior fiscal year: Provided, That prior to the
thirtieth day of June, two-thousand thirteen, and every five years
thereafter, the commissioner shall review the percentage surcharge
and determine a new percentage as he or she deems necessary.
(C) The amounts required to be collected under paragraph (B)
of this subdivision shall be remitted to the Insurance Commissioner
on or before the twenty-fifth day of the month succeeding the end
of the quarter in which they are collected, except for the fourth
quarter for which the surcharge shall be remitted on or before the first day of March of the succeeding year.
(2) Each fiscal year, the Insurance Commissioner shall
calculate a percentage surcharge to be remitted on a quarterly
basis by self-insured employers and said percentage shall be
calculated by dividing previous year's self-insured payroll in the
state into the portion of the Insurance Commissioner's budget
amount attributable to regulation of the self-insured employer
market. This resulting percentage shall be applied to each
self-insured employer's payroll and the resulting amount shall be
remitted as a regulatory surcharge by each self-insured employer.
The Workers' Compensation Board of Managers or Industrial Council
may promulgate a rule for implementation of this section. The
company, all other private carriers and all self-insured employers
shall furnish the Insurance Commissioner with all required
information and cooperate in all respects necessary for the
Insurance Commissioner to perform the duties set forth in this
section and in other provisions of this chapter and chapter
thirty-three of this code. The surcharge shall be calculated so as
to only defray the costs associated with the administration of this
chapter and the funds raised shall not be used for any other
purpose;
(3) (A) Upon termination of the commission, the company and
all other Each private carriers carrier shall collect a premiums
surcharge from their its policyholders equal to ten percent, or
such higher or lower rate as annually determined, by the first day
of May of each year, by the Insurance Commissioner to produce
forty-five million dollars annually, of each policyholder's periodic premium amount for workers' compensation insurance:
Provided, That the surcharge rate on policies issued or renewed on
or after the first day of July, two thousand eight shall be nine
percent of the premium collected plus the total of all premium
discounts based on deductible provisions that were applied to
policies issued or renewed in the prior fiscal year.
(B) Additionally, by By the first day of May each year, the
self-insured employer community shall be assessed a cumulative
total of nine million dollars. The methodology for the assessment
shall be fair and equitable and determined by exempt legislative
rule issued by the workers' compensation board of managers or
Industrial Council. The amount collected shall be remitted to the
Insurance Commissioner for deposit in the Workers' Compensation
Debt Reduction Fund created in section five, article two-d of this
chapter.
(g) The new premiums surcharge imposed by paragraphs (A) and
(B), subdivision (3), subsection (f) of this section shall sunset
and not be are not collectible with respect to workers'
compensation insurance premiums paid when the policy is renewed on
or after the first day of the month following the month in which
the Governor certifies to the Legislature that the revenue bonds
issued pursuant to article two-d of this chapter twenty-three of
this code have been retired and that the unfunded liability of the
Old Fund has been paid or has been provided for in its entirety,
whichever occurs last.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all subscriber policies with the commission shall novate to the company
and all employers otherwise shall purchase workers' compensation
insurance from the company unless permitted to self-insure their
obligations. The company shall assume responsibility for all new
fund obligations of the subscriber policies which novate to the
company or which are issued thereafter. Each subscriber whose
policy novates to the company shall also have its advanced deposit
credited to its account with the company. Employers purchasing
workers' compensation insurance from the company shall have the
right to designate a representative or agent to act on its behalf
in any and all matters relevant to coverage and claims as
administered by the company.
(b) Effective the first day of July, two thousand eight, an
employer may elect to: (1) Continue to purchase workers'
compensation insurance from the company; (2) purchase workers'
compensation insurance from another private carrier licensed and
otherwise authorized to transact workers' compensation insurance in
this state; or (3) self-insure its obligations if it satisfies all
requirements of this code to so self-insure and is permitted to do
so: Provided, That all state and local governmental bodies,
including, but not limited to, all counties and municipalities and
their subdivisions and including all boards, colleges, universities
and schools, shall continue to purchase workers' compensation
insurance from the company through the thirtieth day of June, two
thousand twelve. The company and other private carriers shall be
are permitted to sell workers' compensation insurance through
licensed agents in the state. To the extent that a private carrier markets workers' compensation insurance through a licensed agent,
it shall be is subject to all applicable provisions of chapter
thirty-three of this code.
(c) Every employer shall post a notice upon its premises in a
conspicuous place identifying its workers' compensation insurer.
The notice must include the insurer's name, business address and
telephone number and the name, business address and telephone
number of its nearest adjuster in this state of the insurer and of
the person to contact with questions about a claim. The employer
shall at all times maintain the notice provided for the information
of his or her employees. Release of employer policy information
and status by the Industrial Council and the Insurance Commissioner
shall be governed by section four, article one of this chapter.
The Insurance Commissioner shall collect and maintain information
related to officers, directors and ten percent or more owners of
each carrier's policyholders, and each private carrier shall
provide said information to the Insurance Commissioner within sixty
days of the issuance of a policy and any changes to the information
shall thereafter be reported within sixty days of such change.
(d) Any rule promulgated by the Board of Managers or
Industrial Council empowering agencies of this state to 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 employer whose account is in default with
regard to any liability under this chapter shall be fully
enforceable by the Insurance Commissioner against any such the
employer.
(e) Effective the first day of January, two thousand nine, the
company may decline to offer coverage to any applicant. Effective
the first day of January, two thousand nine, the company and
private carriers may cancel a policy or decline to renew a policy
upon the issuance of sixty thirty days' written advance notice to
the policyholder and may refuse to renew a policy upon the issuance
of sixty days' written advance notice to the policyholder:
Provided, That cancellation of the policy by the carrier for
failure of consideration to be paid by the policyholder or for
refusal to comply with a premium audit is effective after fifteen
ten days advance written notice of cancellation to the
policyholder.
(f) Every private carrier shall notify the Insurance
Commissioner or his or her designee of as follows: (1) of The the
issuance or renewal of insurance coverage, within ten thirty
calendar days of (A) the effective date of coverage, or (B) the
private carrier's receipt of notice of the employer's operations in
this state, whichever is later; and (2) of a termination of
coverage by the private carrier due to lapse, refusal to renew or
cancellation, within three at least ten business days of prior to
the effective date of the termination; or (3) of a termination of
coverage by an employer, within ten days of the private carrier's
receipt of the employer's request for such termination; such the
notifications shall be on forms developed or in a manner prescribed
by the Insurance Commissioner.
(g) For the purposes of subsections (e) and (f) of this
section, the transfer of a policyholder between insurance companies within the same group is not considered a cancellation or refusal
to renew a workers' compensation insurance policy.
§23-2C-17. Administration of a competitive system.
(a) Every policy of insurance issued by a private carrier:
(1) Shall be in writing;
(2) Shall contain the insuring agreements and exclusions; and
(3) If it contains a provision inconsistent with this chapter,
it shall be deemed to be reformed to conform with this chapter.
(b) The Workers' Compensation Board of Managers Industrial
Council shall promulgate a rule which prescribes the requirements
of a basic policy to be used by private carriers.
(c) A private carrier or self-insured employer may enter into
a contract to have his or her its plan of insurance administered by
a third-party administrator including the company. A private
carrier shall not enter into a contract with any person for the
administration of any part of the plan of insurance unless that
person maintains an office in this state and has if the
administrator is licensed or registered with the Insurance
Commissioner of this state in accordance with article forty-six,
chapter thirty-three of the code.
Notwithstanding any other
provision of this code to the contrary, any third-party
administrator who, directly or indirectly, underwrites or collects
charges or premiums from, or adjusts or settles claims on residents
of this state, in connection with workers
'
compensation coverage
offered or provided by an insurer, is subject to the provisions of
article forty-six, chapter thirty-three of this code to the same extent as those persons included in the definition set forth in
subsection (a), section two of said article.
The Insurance
Commissioner shall propose rules, as provided in section five,
article two-c of this chapter
, to regulate the use of third-party
administrators by private carriers and self-insured employers,
including rules setting forth mandatory provisions for agreements
between third-party administrators and self-insured employers or
private carriers.
(d) A self-insured employer or a private carrier may:
(1) Enter into a contract or contracts with one or more
organizations for managed care to provide comprehensive medical and
health care services to employees for injuries and diseases that
are compensable pursuant to chapter twenty-three of this code. The
managed care plan must be approved pursuant to the provisions of
section three, article four of this chapter.
(2) Require employees to obtain medical and health care
services for their industrial injuries from those organizations and
persons with whom the self-insured employer, or private carrier has
contracted or as the self-insured employer or private carrier
otherwise prescribes.
(3) Except for emergency care, require employees to obtain the
approval of the self-insured employer or private carrier before
obtaining medical and health care services for their industrial
injuries from a provider of health care who has not been previously
approved by the self-insured employer or private carrier.
(e) A private carrier or self-insured employer may inquire
about and request medical records of an injured employee that concern a preexisting medical condition that is reasonably related
to the industrial injury of that injured employee.
(f) An injured employee must sign all medical releases
necessary for the insurer of his or her employer to obtain
information and records about a preexisting medical condition that
is reasonably related to the industrial injury of the employee and
that will assist the insurer to determine the nature and amount of
workers' compensation to which the employee is entitled.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The Workers' Compensation Commission, the successor to the
commission, other Insurance Commissioner, private insurance
carriers and self-insured employers may hear and determine all
questions within their jurisdiction. In matters arising under
articles three and four of this chapter, the commission, the
successor to the commission, other Insurance Commissioner private
insurance carriers and self-insured employers shall promptly review
and investigate all claims. The parties to a claim shall file the
information in support of their respective positions as they
consider proper. In addition, the commission, the successor to the
commission, other private insurance carriers and self-insured
employers may develop additional information that it considers to
be necessary in the interests of fairness to the parties and in
keeping with their fiduciary obligations are the claimant and, if
applicable, the claimant's dependants, and the employer, and with respect to claims involving funds created in article two-c of this
chapter for which he or she has been designated the administrator,
the Insurance Commissioner. With regard to any issue which is
ready for a decision, the commission, the successor to the
commission, other Insurance Commissioner, private insurance
carriers and carrier or self-insured employers employer, whichever
is applicable shall explain the basis of its decisions decision and
shall promptly send the decision to all parties. As soon as
practicable after receipt of the claim, but in no event later than
the date of the initial decision on the claim, the Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall send the claimant a brochure approved by the
Insurance Commissioner setting forth the claims process.
(b)(1) Except with regard to interlocutory matters, and those
matters set forth in subsection (d) of this section, upon making
any decision, upon making or refusing to make any award or upon
making any modification or change with respect to former findings
or orders, as provided by section sixteen, article four of this
chapter, the commission, the successor to the commission, other
private insurance carriers and self-insured employers Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall give notice, in writing, to the employer,
employee, claimant or dependant as the case may be, parties to the
claim of its action. The notice shall state the time allowed for
filing an objection a protest to the finding. The action of the
commission, the successor to the commission, other private
insurance carriers and self-insured employers Insurance Commissioner, private carrier or self-insured employer, whichever
is applicable, is final unless the decision is protested within
sixty days the employer, employee, claimant or dependant shall,
within thirty days after the receipt of such decision the notice,
object in writing, to the finding. Unless an objection a protest
is filed within the thirty-sixty-day period, the finding or action
is final. This time limitation is a condition of the right to
litigate the finding or action and hence jurisdictional. Any
objection protest shall be filed with the office of judges with a
copy served upon the parties to the claim commission, the successor
to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, and other parties
in accordance with the procedures set forth in sections eight and
nine of this article. In all instances where a private carrier,
self-insured employer or a third-party administrator has made
claims decisions as authorized in this chapter, they shall provide
claimants notice of all claims decisions as provided by rules for
self-administration promulgated by the board of managers and shall
be bound by each requirement imposed upon the commission by this
article. An employer may protest decisions incorporating findings
made by the occupational pneumoconiosis board, decisions made by
the Insurance Commissioner acting as administrator of claims
involving funds created in article two-c of this chapter, or
decisions entered pursuant to subdivision (1), subsection (c),
section seven-a, article four of this chapter.
(2)(A) With respect to every application for benefits filed on
or after the first day of July, two thousand eight, in which a decision to deny benefits is protested and the only controversy
relating to compensability is whether the application was properly
filed as a new claim or a reopening of a previous claim, the party
that denied the application shall begin to make conditional payment
of benefits and must promptly give notice to the Office of Judges
that another identifiable person may be liable. The Office of
Judges shall promptly order the appropriate persons be joined as
parties to the proceeding: Provided, That at any time during a
proceeding in which conditional payments are being made in
accordance with the provisions of this subsection, the office of
judges may, pending final determination of the person properly
liable for payment of the claim, order that such conditional
payments of benefits be paid by another party.
(B) Any conditional payment made pursuant to paragraph (A) of
this subdivision shall not be deemed an admission or conclusive
finding of liability of the person making such payments. When the
administrative law judge has made a determination as to the party
properly liable for payment of the claim, he or she shall direct
any monetary adjustment or reimbursement between or among the
Insurance Commissioner, private carriers and self-insured employers
as is necessary.
(C) The Office of Judges may direct that:
(i) An application for benefits be designated as a petition
to reopen, effective as of the original date of filing;
(ii) A petition to reopen be designated as an application for
benefits, effective as of the original date of filing; or
(iii) An application for benefits or petition to reopen filed with the Insurance Commissioner, private carrier or self-insured
employer be designated as an application or petition to reopen
filed with another private carrier, self-insured employer or
Insurance Commissioner.
(c) Where an employer protests a written decision entered
pursuant to a finding or determination of the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, is protested only
by the employer of the Occupational Pneumoconiosis Board, a
decision on a claim made by the Insurance Commissioner acting as
the administrator of a fund created in article two-c of this
chapter, or decisions entered pursuant to subdivision (1),
subsection (c), section seven-a, article four of this chapter, and
the employer does not prevail in its protest, and in the event the
claimant is required to attend a hearing by subpoena or agreement
of counsel or at the express direction of the commission or Office
of Judges, then the claimant in addition to reasonable traveling
and other expenses shall be reimbursed for loss of wages incurred
by the claimant in attending the hearing.
(d) The commission, the successor to the commission, other
private insurance carriers and Insurance Commissioner, private
carrier or self-insured employers employer, whichever is applicable
may amend, correct or set aside any order or decision on any issue
entered by it which, at the time of issuance or any time thereafter
after that, is discovered to be defective or clearly erroneous or
the result of mistake, clerical error or fraud, or with respect to
any order or decision denying benefits, otherwise not supported by the evidence, Jurisdiction to take this action but any protest
filed prior to entry of the amended decision is a protest from the
amended decision unless and until the administrative law judge
before whom the matter is pending enters an order dismissing the
protest as moot in light of the amendment. Jurisdiction to issue an
amended decision pursuant to this subsection continues until the
expiration of two years from the date of entry of an order a
decision to which the amendment is made unless the order decision
is sooner affected by appellate action: Provided, That corrective
actions in the case of fraud may be taken at any time an action of
an administrative law judge or other judicial officer or body:
Provided, That corrective actions in the case of fraud may be taken
at any time.
(e) All objections to orders of the commission, the successor
to the commission, other private insurance carriers and
self-insured employers, whichever is applicable shall be styled in
the name of the issuing entity. All appeals prosecuted from the
office of judges shall be in the name of the issuing party. In all
actions under this article, the Workers' Compensation Commission
shall be the party in interest unless the parties to the appeal are
limited to a claimant and a self-insured employer.
(e) The Insurance Commissioner shall propose rules, as
provided in section five, article two-c of this chapter,
establishing criteria for providing employers the option of
allowing employees
,
following an injury,
to return to work on a
trial basis.
§23-5-11. Workers' Compensation Board of Review generally.
(a) On the thirty-first day of January, two thousand four, the
Workers' Compensation Appeal Board heretofore established in this
section is hereby abolished.
(b) There is hereby created the "Workers' Compensation Board
of Review", which may also be referred to as "the Board of Review"
or "the board". Effective the first day of February, two thousand
four, the Board of Review shall exercise exclusive jurisdiction
over all appeals from the Workers' Compensation Office of Judges
including any and all appeals pending with the Board of Appeals on
the thirty-first day of January, two thousand four.
(c) The board shall consist consists of three members.
(d) The Governor shall appoint, from names submitted by the
"Workers' Compensation Board of Review Nominating Committee", with
the advice and consent of the Senate, three qualified attorneys to
serve as members of the Board of Review. If the Governor does not
select a nominee for any vacant position from the names provided by
the nominating committee, he shall notify the nominating committee
of that circumstance and the committee shall provide additional
names for consideration by the Governor. A member of the Board of
Review may be removed by the Governor for official misconduct,
incompetence, neglect of duty, gross immorality or malfeasance and
then only after notice and opportunity to respond and present
evidence. No more than two of the members of the board may be of
the same political party. The members of the Board of Review shall
be paid an annual salary of eighty-five ninety thousand dollars.
Members are entitled to be reimbursed for actual and necessary
travel expenses incurred in the discharge of official duties in a manner consistent with the guidelines of the Travel Management
Office of the Department of Administration.
(e) The nominating committee shall consist consists of the
following members: (1) The President of the West Virginia State
Bar who will serve serves as the chairperson of the committee; (2)
an active member of the West Virginia State Bar Workers'
Compensation Committee selected by the major trade association
representing employers in this state; (3) an active member of the
West Virginia State Bar Workers' Compensation Committee selected by
the highest ranking officer of the major employee organization
representing workers in this state; (4) the Dean of the West
Virginia University School of Law; and (5) the Chairman of the
Judicial Investigation Committee.
(f) The nominating committee is responsible for reviewing and
evaluating candidates for possible appointment to the Board of
Review by the Governor. In reviewing candidates, the nominating
committee may accept comments from and request information from any
person or source.
(g) Each member of the nominating committee may submit up to
three names of qualified candidates for each position on the Board
of Review: Provided, That the member of the nominating committee
selected by the major trade organization representing employers of
this state shall submit at least one name of a qualified candidate
for each position on the board who either is, or who represents,
small business employers of this state. After careful review of
the candidates, the committee shall select a minimum of one
candidate for each position on the board.
(h) No later than the first day of November, two thousand
three, the nominating committee shall present to the Governor its
list of candidates for the initial Board of Review. The Governor
shall appoint the initial board no later than the thirty-first day
of December, two thousand three: Provided, That upon the
thirty-first day of December, two thousand three, the deadline for
filling all positions of the Board of Review will be extended, as
necessary, if, on or before that date, the Governor has timely
requested additional names from the nominating committee.
Thereafter, The nominating committee shall meet at the request of
the Governor in order to make timely recommendations to the
Governor for appointees to the board as the initial and subsequent
terms expire or become vacant. The recommendations shall be
submitted no later than thirty days prior to the expiration of any
term.
(i) (h) Of the initial appointments, one member shall be
appointed for a term ending the thirty-first day of December, two
thousand six; one member shall be appointed for a term ending the
thirty-first day of December, two thousand eight; and one member
shall be appointed for a term ending the thirty-first day of
December, two thousand ten. Thereafter, The appointments shall be
for six-year terms.
(j) (i) A member of the Board of Review must, at the time he
or she takes office and thereafter during his or her continuance in
office, be a resident of this state, be a member in good standing
of the West Virginia State Bar, have a minimum of ten years'
experience as an attorney admitted to practice law in this state prior to appointment and have a minimum of five years' experience
in preparing and presenting cases or hearing actions and making
decisions on the basis of the record of those hearings before
administrative agencies, regulatory bodies or courts of record at
the federal, state or local level.
(k)(j) No member of the Board of Review may hold any other
office, or accept any appointment or public trust, nor may he or
she become a candidate for any elective public office or nomination
thereto. Violation of this subsection requires the member to
vacate his or her office. No member of the Board of Review may
engage in the practice of law during his or her term of office.
(l)(k) A vacancy occurring on the board other than by
expiration of a term shall be filled in the manner original
appointments were made, for the unexpired portion of the term.
(m) (l) The board shall designate one of its members in
rotation to be chairman of the board for as long as the board may
determine by order made and entered of record. In the absence of
the chairman, any other member designated by the members present
shall act as chairman.
(n) (m) The Board of Review shall meet as often as necessary
to hold review hearings, at such times and places as the chairman
may determine. Two members shall be present in order to conduct
review hearings or other business. All decisions of the board
shall be determined by a majority of the members of the board.
(o) (n) The Board of Review shall make general rules regarding
the pleading, including the form of the petition and any responsive
pleadings, practice and procedure to be used by the board.
(p)(o) The Board of Review may hire a clerk and other
professional and clerical staff necessary to carry out the
requirements of this article. It is the duty of the clerk of the
Board of Review to attend in person, or by deputy, all the sessions
of the board, to obey its orders and directions, to take care of
and preserve in an office, kept for the purpose, all records and
papers of the board and to perform other duties as prescribed by
law or required of him or her by the board. All employees of the
board shall serve at the will and pleasure of the board. The
board's employees are exempt from the salary schedule or pay plan
adopted by the Division of Personnel. All personnel of the Board
of Review shall be are under the supervision of the chairman of the
Board of Review.
(q)(p) If deemed considered necessary by the board, the board
may, through staffing or other resources, procure assistance in
review of medical portions of decisions.
(r) (q) Upon the conclusion of any hearing, or prior thereto
with concurrence of the parties, the member board shall promptly
determine the matter and make an award in accordance with his or
her its determination.
(s) (r) The award shall become a part of the commission file.
A copy of the award shall be sent forthwith by mail to all parties
in interest.
(t) (s) The award is final when entered. The award shall
contain a statement explaining the rights of the parties to an
appeal to the Board of Review and the applicable time limitations
involved.
(u) (t) The board shall submit to the Insurance Commissioner
a budget to the executive director for inclusion in the budget for
the Workers' Compensation Commission sufficient to adequately
provide for the administrative and other operating expenses of the
board.
(v) (u) The board shall report monthly to the board of
managers Industrial Council on the status of all claims on appeal.
(w) (v) Effective upon termination of the commission, the
Board of Review shall be transferred to the Insurance Commissioner
which shall have the oversight and administrative authority
heretofore provided to the executive director and the board of
managers.