H. B. 4636
(By Delegate Kominar]
[Passed March 8, 2008; in effect from passage.
AN ACT 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 §23-1-20; 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; to
amend and reenact §23-4-7b of said code; and to amend and
reenact §23-5-1 and §23-5-11 of said code, all relating
generally to workers' compensation insurance; prohibiting
public contracts with employers in workers' compensation
default; establishing hiring preferences for employees of the
Attorney General's workers' compensation litigation unit and
permitting division of personnel to propose rules regarding
such preferences; providing for the termination of licenses
and permits to self-insured 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;
eliminating requirement that private carriers maintain an office in the State; modifying certain information that must
be on posted notice in work place; changing period of notice
for cancellation of policies; establishing fixed percentages
for determining surcharges on covered employers and permitting
recalculation of one such percentage; eliminating certain
carrier reporting requirements; 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
requiring the Governor to set salaries of members of the
workers' compensation 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 §23-1-20; 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; that §23-4-7b 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
(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, 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
(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) "Employer default" means having an outstanding balance or
liability to the old fund or to the uninsured employers' fund or
being in policy default, as defined in section two, article two-c,
chapter twenty-three, of this code, failure to maintain mandatory
workers' compensation coverage, or failure to fully meet its
obligations as a workers' compensation self-insured employer. An
employer is not in employer default if it has entered into a
repayment agreement with the Insurance Commissioner and remains in
compliance with the obligations under the repayment agreement.
(4) "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
(5) "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
(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, 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
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§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
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO THIS CHAPTER; EXTRATERRITORIAL COVERAGE
§23-2-9a. Sanctions for default by self-insured employers;
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.
Commissioner shall propose rules, as provided in section five,
article two-c of this chapter, establishing administrative
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:
(A) Insure employers against liability for injuries and
occupational diseases for which their employees may be entitled to
receive compensation pursuant to this chapter and federal Longshore
and Harbor Workers' Compensation Act, 33 U.S.C. §901, et seq.;
(B) Provide employer's liability insurance incidental to and
provided in connection with the insurance specified in paragraph
(A) of this subdivision, including coal-workers' pneumoconiosis
coverage and employer excess liability coverage as provided in this
(C) Transact other kinds of property and casualty insurance
for which the company is otherwise qualified under the provisions
of this code.
(2) The company 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 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 the commissioner, in his or her discretion, determines
that monthly reporting is not necessary. In all other respects the
company shall 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 the Insurance Commissioner determines 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 the deadline
is extended by the Insurance Commissioner.
(c) For the duration of its existence, the company is not a
department, unit, agency or instrumentality of the state for any
purpose. All debts, claims, obligations and liabilities of the
company, whenever incurred, 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
(d) The moneys of the company are not part of the General
Revenue Fund of the state. The debts, claims, obligations and
liabilities of the company are not 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; or the provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon the
termination, private carriers, including the company, 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 is subject to
(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: 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
(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 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) Each private carrier shall collect a premiums
surcharge from its policyholders 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.
(B) 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 Industrial Council. The amount collected pursuant to this
subdivision 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 sunset and 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 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 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. Each employer purchasing
workers' compensation insurance from the company have the right to
designate a representative or agent to act on its behalf in any and all matters relevant to coverage and claims administered by the
(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 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 is
subject to all applicable provisions of chapter thirty-three of
(c) Every employer shall post a notice upon its premises in a
conspicuous place identifying its workers' compensation insurer.
The notice must include the name, business address and telephone
number 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.
(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 the employer.
(e) Effective the first day of January, two thousand nine, the
company may decline to offer coverage to any applicant. Private
carriers and, effective the first day of January, two thousand
nine, the company, may cancel a policy upon the issuance of 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 ten days advance written notice of cancellation to
(f) Every private carrier shall notify the Insurance
Commissioner as follows: (1) of the issuance or renewal of
insurance coverage, within thirty 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; (2) of a
termination of coverage by the private carrier due to refusal to
renew or cancellation, at least ten days prior to the effective date of the termination; and (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; the notifications shall be
on forms developed or in a manner prescribed by the Insurance
(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 Industrial Council shall promulgate a rule which
prescribes the requirements of a basic policy to be used by private
(c) A private carrier or self-insured employer may enter into
a contract to have its plan of insurance administered by a
third-party administrator if the administrator is licensed or
registered with the Insurance Commissioner 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
(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 4. DISABILITY AND DEATH BENEFITS.
§23-4-7b. Trial return to work; Insurance Commissioner to develop
(a) The Legislature hereby finds and declares that it is in
the interest of employees and employers that injured employees be
encouraged to return to work as quickly as possible after an injury
and that appropriate protections be afforded to injured employees
who return to work on a trial basis.
(b) 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 and for the suspension of temporary total benefits
during a period of trial return to work.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and hearing.
(a) The Insurance Commissioner, private carriers and
self-insured employers may determine all questions within their
jurisdiction. In matters arising under articles three and four of
this chapter, the Insurance Commissioner private carriers and
self-insured employers shall promptly review and investigate all
claims. The parties to a claim 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. In claims in which the employer had
coverage on the date of the injury or last exposure, the employer's
carrier has sole authority to act on the employer's behalf in all
aspects related to litigation of the claim. With regard to any
issue which is ready for a decision, the Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
shall promptly send the decision to all parties, including the
basis of its decision. 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, 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 Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall give notice, in
writing, to the parties to the claim of its action. The notice
shall state the time allowed for filing a protest to the finding.
The action of the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, is final unless the
decision is protested within sixty days after the receipt of such
decision Unless a protest is filed within the-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 protest shall be filed with the Office of
Judges with a copy served upon the parties to the claim, and other
parties in accordance with the procedures set forth in sections
eight and nine of 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
(c) Where an employer protests a written decision entered
pursuant to a finding 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 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 Insurance Commissioner, private carrier or
self-insured 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 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,
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 a decision to which the amendment is made unless the
decision is sooner affected by 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.
§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 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 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 thousand dollars: Provided, that on and after the first day of July, two thousand eight the
Governor shall set the salary of the members of the Board:
Provided, however, That the annual salary of a member of the board
of review shall not exceed one hundred ten 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 consists of the following
members: (1) The President of the West Virginia State Bar who
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) 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.
(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.
(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.
(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.
(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.
(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.
(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.
(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 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
are under the supervision of the chairman of the Board of Review.
(p) If considered necessary by the board, the board may,
through staffing or other resources, procure assistance in review
of medical portions of decisions.
(q) Upon the conclusion of any hearing, or prior thereto with
concurrence of the parties, the board shall promptly determine the
matter and make an award in accordance with its determination.
(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
(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.
(t) The board shall submit to the Insurance Commissioner a
budget sufficient to adequately provide for the administrative and
other operating expenses of the board.
(u) The board shall report monthly to the Industrial Council
on the status of all claims on appeal.
(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.