ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 537
(Senators Minard and McCabe, original sponsors)
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[Passed April 11, 2009; in effect ninety days from passage.]
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AN ACT to repeal §23-5-17 and §23-5-18 of the Code of West
Virginia, 1931, as amended; to amend and reenact §23-2-1d of
said code; to amend and reenact §23-2A-1 of said code; to
amend and reenact §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21
of said code; to amend and reenact §23-4-1c, §23-4-6b, §23-4-
8, §23-4-8c and §23-4-15b of said code; to amend said code by
adding thereto a new section, designated §23-4-8d; to amend
and reenact §23-5-1, §23-5-3 and §23-5-16 of said code; and to
amend and reenact §33-2-22 of said code, all relating to
workers' compensation; eliminating obsolete sunset provisions;
redefining the responsibility of prime contractors to injured
employees of their subcontractors; clarifying subrogation
rights with respect to employees injured by third parties;
authorizing negotiation of amount to accept as subrogation in
Old Fund claims; deleting mandatory recovery fee to Insurance
Commissioner in certain subrogation claims; providing for a
unitary decision-making process in claims involving the Uninsured Employer Fund; changing date on which governmental
bodies may purchase workers' compensation insurance in the
private market and on which the employers' mutual insurance
company may nonrenew such bodies; awarding attorney fees and
costs if workers' compensation temporary disability benefits
claim is unreasonably denied; extending the scope of
permissible remedies to include those in the general insurance
code; permitting the recovery of administrative costs in
certain actions; authorizing expedited review by the Office of
Judges when a request to reopen temporary total benefits is
denied; eliminating mandatory allocation in hearing loss
claims; providing that claims for medical benefits in
occupational pneumoconiosis claims may be made at any time;
clarifying that a sixty-day period applies to various
protests; extending the jurisdiction of the Office of Judges
to hear certain protests; clarifying permissible method of
delivering payment of benefits; establishing reimbursement for
certain claimant travel expenses; authorizing award of
attorney fees in certain final settlements; clarifying
licensing requirements for third-party administrators;
mandating conditional payments in certain instances;
authorizing the Insurance Commissioner to compromise and
settle claims for moneys due the Old Fund and Uninsured
Employer Fund; and requiring report to Legislature regarding
settlements.
Be it enacted by the Legislature of West Virginia:
That §23-5-17 and §23-5-18 of the Code of West Virginia, 1931,
as amended, be repealed; that §23-2-1d of said code be amended and
reenacted; that §23-2A-1 of said code be amended and reenacted;
that §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21 of said code be
amended and reenacted; that §23-4-1c, §23-4-6b, §23-4-8, §23-4-8c
and §23-4-15b of said code be amended and reenacted; that said code
be amended by adding thereto a new section, designated §23-4-8d;
that §23-5-1, §23-5-3 and §23-5-16 of said code be amended and
reenacted; and that §33-2-22 of said code be amended and reenacted,
all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1d. Prime contractors and subcontractors liability.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article includes any
primary contractor who regularly subcontracts with other employers
for the performance of any work arising from or as a result of the
primary contractor's own contract: Provided, That a subcontractor
does not include one providing goods rather than services. For
purposes of this subsection, extraction of natural resources is a
provision of services. In the event that a subcontracting employer
defaults on its obligations to make payments to the commission,
then the primary contractor is liable for the payments. However,
nothing contained in this section shall extend or except to a primary contractor or subcontractors the provisions of section six,
six-a or eight of this article. This section is applicable only
with regard to subcontractors with whom the primary contractor has
a contract for any work or services for a period longer than sixty
days: Provided, however, That this section is also applicable to
contracts for consecutive periods of work that total more than
sixty days. It is not applicable to the primary contractor with
regard to sub-subcontractors. However, a subcontractor for the
purposes of a contract with the primary contractor can itself
become a primary contractor with regard to other employers with
whom it subcontracts. It is the intent of the Legislature that no
contractor, whether a primary contractor, subcontractor or
sub-subcontractor, escape or avoid liability for any workers'
compensation premium, assessment or tax. The executive director
shall propose for promulgation a rule to effect this purpose on or
before December 31, 2003.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the executive
director, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor is
in good standing with the Workers' Compensation Fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor results
in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes,
premium deposits, interest and other penalties arising during the life of the contract or due to work performed in furtherance of the
contract: Provided, That the commission is entitled to collect only
once for the amount of premiums, premium deposits and interest due
to the default, but the commission may impose other penalties on
the primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this
section, the primary contractor shall request that the commission
inform the primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commission shall notify the primary contractor of the default
by placing a notice in the certified United States mail, postage
prepaid, and addressed to the primary contractor at the address
furnished to the commission by the primary contractor. The mailing
is good and sufficient notice to the primary contractor of the
subcontractor's default. However, the primary contractor is not
liable under this section until the first day of the calendar
quarter following the calendar quarter in which the notice is given
and then the liability is only for that following calendar quarter
and thereafter and only if the subcontract has not been terminated:
Provided, That the commission is entitled to collect only once for
the amount of premiums, premium deposits and interest due to the
default, but the commission may impose other penalties on the
primary contractor or on the subcontractor, or both.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided in this section, the default or failure is good and sufficient cause for a primary
contractor to hold the subcontractor responsible and to seek
reimbursement or indemnification for any amounts paid on behalf of
the subcontractor to avoid or cure a workers' compensation default,
plus related costs, including reasonable attorneys' fees, and to
terminate its subcontract with the subcontractor notwithstanding
any provision to the contrary in the contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after January 1,
1994.
(e) The commission may take any action authorized by section
five-a of this article in furtherance of its efforts to collect
amounts due from the primary contractor under this section.
(f) Effective upon termination of the commission, subsections
(a) through (e), inclusive, of this section shall be applicable
only to unpaid premiums due the commission or the Old Fund as
provided in article two-c of this chapter.
(g) The Legislature finds that every prime contractor should
be responsible to ensure that any subcontractor with which it
directly contracts is either self-insured or maintains workers'
compensation coverage throughout the periods during which the
services of a subcontractor are used and, further, if the
subcontractor is neither self-insured nor covered, then the prime
contractor rather than the Uninsured Employer Fund should be
responsible for the payment of statutory benefits. It is also the
intent of the Legislature that this section not be used as the basis for expanding the liability of a prime contractor beyond the
limited purpose of providing coverage in the limited circumstances
and in the manner expressly addressed by this section: Provided,
That receipt by the prime contractor of a certificate of coverage
from a subcontractor shall be deemed to relieve the prime
contractor of responsibility regarding the subcontractor's workers'
compensation coverage.
(h) On after the effective date of the reenactment of this
section in 2009, if an employee of a subcontractor suffers an
injury or disease and, on the date of injury or last exposure, his
or her employer did not have workers' compensation coverage or was
not an approved self-insured employer, and the prime contractor did
not obtain certification of coverage from the subcontractor, then
that employee may file a claim against the prime contractor for
which the subcontractor performed services on the date of injury or
last exposure, and such claim shall be administered in the same
manner as claims filed by injured employees of the prime
contractor: Provided, That a subcontractor that subcontracts with
another subcontractor shall, with respect to such subcontract, is
the prime contractor for the purposes of this section: Provided,
however, That the provisions of this subsection do not relieve a
subcontractor from any requirements of this chapter, including the
duty to maintain coverage on its employees. The subcontractor
shall provide proof of continuing coverage to the prime contractor
by providing a certificate showing current as well as renewal or
replacement coverage during the term of the contract between the prime contractor and the subcontractor. The subcontractor shall
provide notice to the prime contractor within two business days of
cancellation of expiration of coverage.
(i) Notwithstanding that an injured employee of a
subcontractor is eligible for workers' compensation benefits
pursuant to this section from the prime contractor's carrier or the
self-insured prime contractor, whichever is applicable, a
subcontractor who has failed to maintain workers' compensation
coverage on its employees:
(1) May not claim the exemption from liability provided by
sections six and six-a of this article;
(2) May be held liable to an injured employee pursuant to the
provisions of section eight of this article; and
(3) Is the designated employer for the purposes of any
"deliberate intention" action brought by the injured worker
pursuant to the provisions of section two, article four of this
chapter.
(j) If a claim of an injured employee of a subcontractor is
accepted or conditionally accepted into the Uninsured Employer
Fund, both the prime contractor and subcontractor are jointly and
severally liable for any payments made by the fund, and the
Insurance Commissioner may seek recovery of the payments, plus
administrative costs and attorneys' fees, from the prime
contractor, the subcontractor, or both: Provided, That a prime
contractor who is held liable pursuant to this subsection for the
payment of benefits to an injured employee of a subcontractor may recover the amount of such payments from the subcontractor, plus
reasonable attorneys' fee and costs: Provided, however, That if a
prime contractor has performed due diligence in all matters
requiring an verifying a subcontractor's maintenance of insurance
coverage, than the prime contractor is not liable for any claim
made hereunder against the subcontractor.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations.
(a) Where a compensable injury or death is caused, in whole or
in part, by the act or omission of a third party, the injured
worker or, if he or she is deceased or physically or mentally
incompetent, his or her dependents or personal representative are
entitled to compensation under the provisions of this chapter, and
shall not by having received compensation be precluded from making
claim against the third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or her
personal representative makes a claim against the third party and
recovers any sum for the claim:
(1) With respect to any claim arising from a right of action
that arose or accrued, in whole or in part, on or after January 1,
2006, the private carrier or self-insured employer, whichever is
applicable, shall be allowed statutory subrogation with regard to
indemnity and medical benefits paid as of the date of the recovery.
(2) With respect to any claim arising from a right of action that arose or accrued, in whole or in part, prior to January 1,
2006, the Insurance Commissioner and the successor to the
commission shall be allowed statutory subrogation with regard to
only medical payments paid as of the date of the recovery:
Provided, That with respect to any recovery arising out of a cause
of action that arose or accrued prior to July 1, 2003, any money
received by the commissioner or self-insured employer as
subrogation to medical benefits expended on behalf of the injured
or deceased worker shall not exceed fifty percent of the amount
received from the third party as a result of the claim made by the
injured worker, his or her dependents or personal representative,
after payment of attorneys' fee and costs, if such exist.
(3) Notwithstanding the provisions of subdivisions (1) and (2)
of this subsection, the Insurance Commissioner, acting as
administrator of the Uninsured Employer Fund, shall be allowed
statutory subrogation with regard to indemnity and medical benefits
paid and to be paid from such fund regardless of the date on which
the cause of action arose.
(c) For claims that arose or accrued, in whole or in part,
prior to the effective date of the reenactment of this section in
2009, and all claims thereafter, the party entitled to subrogation
shall permit the deduction from the amount received reasonable
attorneys' fees and reasonable costs and may negotiate the amount
to accept as subrogation.
(d) In the event that an injured worker, his or her dependents
or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory
subrogation lien upon the moneys received which shall exist in
favor of the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable.(e) It is the duty of
the injured worker, his or her dependents, his or her personal
representative or his or her attorney to give reasonable notice to
the Insurance Commissioner, private carrier or self-insured
employer after a claim is filed against the third party and prior
to the disbursement of any third-party recovery. The statutory
subrogation described in this section does not apply to uninsured
and underinsured motorist coverage or any other insurance coverage
purchased by the injured worker or on behalf of the injured worker.
If the injured worker obtains a recovery from a third party and the
injured worker, personal representative or the injured worker's
attorney fails to protect the statutory right of subrogation
created herein, the injured worker, personal representative and the
injured worker's attorney shall lose the right to retain attorney
fees and costs out of the subrogation amount. In addition, such
failure creates a cause of action for the Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
against the injured worker, personal representative and the injured
worker's attorney for the amount of the full subrogation amount and
the reasonable fees and costs associated with any such cause of
action.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-8. Workers' Compensation Uninsured Employer Fund.
(a) The Workers' Compensation Uninsured Employer Fund shall be
governed by the following:
(1) All money and securities in the fund must be held by the
State Treasurer as custodian thereof to be used solely as provided
in this article.
(2) The State Treasurer may disburse money from the fund only
upon written requisition of the Insurance Commissioner.
(3) Assessments. -- The Insurance Commissioner shall assess
each private carrier and may assess self-insured employers an
amount to be deposited in the fund. The assessment may be
collected by each private carrier from its policyholders in the
form of a policy surcharge. To establish the amount of the
assessment, the Insurance Commissioner shall determine the amount
of money necessary to maintain an appropriate balance in the fund
for each fiscal year and shall allocate a portion of that amount to
be payable by each of the groups subject to the assessment. After
allocating the amounts payable by each group, the Insurance
Commissioner shall apply an assessment rate to:
(A) Private carriers that reflects the relative hazard of the
employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is
based upon expected annual premiums to be received;
(B) Self-insured employers, if assessed, that results in an
equitable distribution of costs among the self-insured employers
and is based upon expected annual expenditures for claims; and
(C) Any other groups assessed that results in an equitable distribution of costs among them and is based upon expected annual
expenditures for claims or premium to be received.
(4) The Industrial Council may adopt rules for the
establishment and administration of the assessment methodologies,
rates, payments and any penalties that it determines are necessary
to carry out the provisions of this section.
(b) Payments from the fund. --
(1) Except as otherwise provided in this subsection, an
injured employee of any employer required to be covered under this
chapter who has failed to obtain coverage may receive compensation
from the Uninsured Employer Fund if such employee meets all
jurisdictional and entitlement provisions of this chapter, files a
claim with the Insurance Commissioner and makes an irrevocable
assignment to the Insurance Commissioner of a right to be
subrogated to the rights of the injured employee.
(2) Employees who are injured while employed by a self-insured
employer are ineligible for benefits from the Workers' Compensation
Uninsured Employer Fund.
(c) Initial determination upon receipt of a claim. --
If a claim is filed against the Uninsured Employer Fund,
the Insurance Commissioner or his or her third-party administrator
shall: (1) Accept the claim into the fund if it is determined that
the employer was required to maintain workers' compensation
coverage with respect to the injured worker but failed to do so;
(2) reject the claim if it is determined that the employer
maintained such coverage or was not required to do so; or (3) in a claim involving the availability of benefits pursuant to section
one-d, article two of this chapter, either reject or conditionally
accept the claim. An aggrieved party may file a protest with the
Office of Judges to any decision by the Insurance Commissioner or
the third-party administrator to accept or reject a claim into the
fund, as well as to any claims decisions made with respect to any
claim accepted into the fund and such protests shall be determined
in the same manner as disputed claims are determined pursuant to
the provisions of article five of this chapter: Provided, That in
any proceeding before the Office of Judges involving the decision
to accept or refuse to accept a claim into the fund, the employer
has the burden of proving that it either provided mandatory
workers' compensation insurance coverage or that it was not
required to do so.
(d) Employer liability. --
(1) Any employer who has failed to provide mandatory coverage
required by the provisions of this chapter is liable for all
payments made and to be made on its behalf, including any benefits,
administrative costs and attorney's fees paid from the fund or
incurred by the Insurance Commissioner, plus interest calculated in
accordance with the provisions of section thirteen, article two of
this chapter.
(2) The Insurance Commissioner:
(A) May bring a civil action in a court of competent
jurisdiction to recover from the employer the amounts set forth in
subdivision (1) of this subsection. In any such action, the Insurance Commissioner may also recover the present value of the
estimated future payments to be made on the employer's behalf and
administrative costs and attorney's fees attributable to such
claim: Provided, That the failure of the Insurance Commissioner to
include a claim for future payments shall not preclude one or more
subsequent actions for such amounts;
(B) May enter into a contract with any person, including the
third-party administrator of the Uninsured Employer Fund, to assist
in the collection of any liability of an uninsured employer; and
(C) In lieu of a civil action, may enter into an agreement or
settlement regarding the collection of any liability of an
uninsured employer.
(3) In addition to any other liabilities provided in this
section, the Insurance Commissioner may impose an administrative
penalty of not more than $10,000 against an employer if the
employer fails to provide mandatory coverage required by this
chapter. All penalties and other moneys collected pursuant to this
section shall be deposited into the Workers' Compensation Uninsured
Employer Fund.
§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 has 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
company.
(b) Effective July 1, 2008, 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
June 30, 2010: Provided, however, That the company may not cancel
or refuse to renew a policy of a state or local governmental body
prior to July 1, 2011, except for failure of consideration to be
paid by the policyholder or for refusal to comply with a premium
audit. 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 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 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 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 January 1, 2009, the company may decline to
offer coverage to any applicant. Private carriers and, effective
January 1, 2009, 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 the policyholder.
(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
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 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 its plan of insurance administered by a
third-party administrator if the administrator is licensed with the
Insurance Commissioner in accordance with article forty-six,
chapter thirty-three of this 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 a private carrier or self-insured employer,
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 this chapter. 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 his or her self-insured employer or his or her
employer's private carrier 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.
§23-2C-21. Limitation of liability of insurer or third-party
administrator; administrative fines are exclusive remedies.
(a) No civil action may be brought or maintained by an
employee against a private carrier or a third-party administrator, or any employee or agent of a private carrier or third-party
administrator, who violates any provision of this chapter or
chapter thirty-three of this code.
(b) Any administrative fines or remedies provided in this
chapter or chapter thirty-three of this code or rules promulgated
by the Workers' Compensation Commission or the Insurance
Commissioner are the exclusive civil remedies for any violation of
this chapter committed by a private carrier or a third-party
administrator or any agent or employee of a private carrier or a
third-party administrator.
(c) Upon a determination by the Office of Judges that a denial
of compensability, a denial of an award of temporary total
disability or a denial of an authorization for medical benefits was
unreasonable, reasonable attorney's fees and the costs actually
incurred in the process of obtaining a reversal of the denial shall
be awarded to the claimant and paid by the private carrier or self-
insured employer which issued the unreasonable denial. A denial is
unreasonable if, after submission by or on behalf of the claimant,
of evidence of the compensability of the claim, the entitlement to
temporary total disability benefits or medical benefits, the
private carrier or self-insured employer is unable to demonstrate
that it had evidence or a legal basis supported by legal authority
at the time of the denial which is relevant and probative and
supports the denial of the award or authorization. Payment of
attorney's fees and costs awarded under this subsection will be
made to the claimant at the conclusion of litigation, including all appeals, of the claimant's protest of the denial.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1c.
§23-4-1c. Payment of temporary total disability benefits directly
to claimant; payment of medical benefits; payments of
benefits during protest; right of commission,
successor to the commission, private carriers and
self-insured employers to collect payments improperly
made.
(a) In any claim for benefits under this chapter, the
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, shall determine whether the claimant has
sustained a compensable injury within the meaning of section one of
this article and enter an order giving all parties immediate notice
of the decision.
(1) The Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, may enter an order
conditionally approving the claimant's application if it finds that
obtaining additional medical evidence or evaluations or other
evidence related to the issue of compensability would aid the
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, in making a correct final decision.
Benefits shall be paid during the period of conditional approval;
however, if the final decision is one that rejects the claim, the
payments shall be considered an overpayment. The Insurance
Commissioner, private carrier or self-insured employer, whichever is applicable, may only recover the amount of the overpayment as
provided for in subsection (h) of this section.
(2) In making a determination regarding the compensability of
a newly filed claim or upon a filing for the reopening of a prior
claim pursuant to the provisions of section sixteen of this article
based upon an allegation of recurrence, reinjury, aggravation or
progression of the previous compensable injury or in the case of a
filing of a request for any other benefits under the provisions of
this chapter, the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall consider the date
of the filing of the claim for benefits for a determination of the
following:
(A) Whether the claimant had a scheduled shutdown beginning
within one week of the date of the filing;
(B) Whether the claimant received notice within sixty days of
the filing that his or her employment position was to be
eliminated, including, but not limited to, the claimant's worksite,
a layoff or the elimination of the claimant's employment position;
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing. In the
event of an affirmative finding upon any of these four factors, the
finding shall be given probative weight in the overall
determination of the compensability of the claim or of the merits
of the reopening request.
(3) Any party may object to the order of the Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, and obtain an evidentiary hearing as provided in
section one, article five of this chapter: Provided, That if the
successor to the commissioner, other private carrier or self-
insured, whichever is applicable, fails to timely issue a ruling
upon any application or motion as provided by law, or if the
claimant files a timely protest to the ruling of a self-insured
employer, private carrier or other issuing entity, denying the
compensability of the claim, denying temporary total disability
benefits or denying medical authorization, the Office of Judges
shall provide a hearing on the protest on an expedited basis as
determined by rule of the Office of Judges.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided in
section five of this article, the Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, may
immediately enter an order commencing the payment of temporary
total disability benefits to the claimant in the amounts provided
for in sections six and fourteen of this article, and the payment
of the expenses provided for in subsection (a), section three of
this article, relating to the injury, without waiting for the
expiration of the thirty-day period during which objections may be
filed to the findings as provided in section one, article five of
this chapter. The Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall enter an order
commencing the payment of temporary total disability or medical
benefits within fifteen working days of receipt of either the
employee's or employer's report of injury, whichever is received
sooner, and also upon receipt of either a proper physician's report
or any r information necessary for a determination. The Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall give to the parties immediate notice of any
order granting temporary total disability or medical benefits.
When an order granting temporary total disability benefits is made,
the claimant's return-to-work potential shall be assessed. The
Insurance Commissioner may schedule medical and vocational
evaluation of the claimant and assign appropriate personnel to
expedite the claimant's return to work as soon as reasonably
possible.
(c) The Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, may enter orders
granting temporary total disability benefits upon receipt of
medical evidence justifying the payment of the benefits. The
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, may not enter an order granting
prospective temporary total disability benefits for a period of
more than ninety days: Provided, That when the Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, determines that the claimant remains disabled beyond
the period specified in the prior order granting temporary total disability benefits, the Insurance Commissioner, private carrier or
self-insured employer shall enter an order continuing the payment
of temporary total disability benefits for an additional period not
to exceed ninety days and shall give immediate notice to all
parties of the decision.
(d) Upon receipt of the first report of injury in a claim, the
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, shall request from the employer or
employers any wage information necessary for determining the rate
of benefits to which the employee is entitled. If an employer does
not furnish this information within fifteen days from the date the
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, received the first report of injury in the
case, the employee shall be paid temporary total disability
benefits for lost time at the rate the commission obtains from
reports made pursuant to subsection (b), section two, article two
of this chapter. If no wages have been reported, the Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall make the payments at the rate the Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, finds would be justified by the usual rate of pay
for the occupation of the injured employee. The rate of benefits
shall be adjusted both retroactively and prospectively upon receipt
of proper wage information. The Insurance Commissioner shall have
access to all wage information in the possession of any state
agency.
(e) Subject to the limitations set forth in section sixteen of
this article, upon a finding of the Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, that a
claimant who has sustained a previous compensable injury which has
been closed by order, or by the claimant's return to work, suffers
further temporary total disability or requires further medical or
hospital treatment resulting from the compensable injury, payment
of temporary total disability benefits to the claimant in the
amount provided for in sections six and fourteen of this article
shall immediately commence, and the expenses provided for in
subsection (a), section three of this article, relating to the
disability, without waiting for the expiration of the thirty-day
period during which objections may be filed. Immediate notice to
the parties of the decision shall be given.
(f) The Insurance Commissioner, private carrier or self-
insured employer shall deliver amounts due for temporary total
disability benefits directly to the claimant.
(g) Where the employer has elected to carry its own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the self-insured employer shall immediately pay the
amounts due the claimant for temporary total disability benefits.
A copy of the notice shall be sent to the claimant.
(h) In the event that an employer files a timely objection to
any order of the Insurance Commissioner, private carrier or self-
insured, whichever is applicable, with respect to compensability,
or any order denying an application for modification with respect to temporary total disability benefits, or with respect to those
expenses outlined in subsection (a), section three of this article,
the division shall continue to pay to the claimant such benefits
and expenses during the period of such disability. Where it is
subsequently found by the Insurance Commissioner, private carrier
or self-insured, whichever is applicable, that the claimant was not
entitled to receive such temporary total disability benefits or
expenses, or any part thereof, so paid, the Insurance Commissioner,
private carrier or self-insured, whichever is applicable, shall
credit said employer's account with the amount of the overpayment.
When the employer has protested the compensability or applied for
modification of a temporary total disability benefit award or
expenses and the final decision in that case determines that the
claimant was not entitled to the benefits or expenses, the amount
of benefits or expenses is considered overpaid. For all awards
made or nonawarded partial benefits paid the Insurance
Commissioner, private carriers or self-insured employer may recover
the amount of overpaid benefits or expenses by withholding, in
whole or in part, future disability benefits payable to the
individual in the same or other claims and credit the amount
against the overpayment until it is repaid in full.
(i) In the event that the Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, finds
that, based upon the employer's report of injury, the claim is not
compensable, the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall provide a copy of the employer's report to the claimant in addition to the order
denying the claim.
(j) If a claimant is receiving benefits paid through a wage
replacement plan, salary continuation plan or other benefit plan
provided by the employer to which the employee has not contributed,
and that plan does not provide an offset for temporary total
disability benefits to which the claimant is also entitled under
this chapter as a result of the same injury or disease, the
employer shall notify the Insurance Commissioner, private carrier
or self-insured of the duplication of the benefits paid to the
claimant. Upon receipt of the notice, the Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
shall reduce the temporary total disability benefits provided under
this chapter by an amount sufficient to ensure that the claimant
does not receive monthly benefits in excess of the amount provided
by the employer's plan or the temporary total disability benefit,
whichever is greater: Provided, That this subsection does not apply
to benefits being paid under the terms and conditions of a
collective bargaining agreement.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by
either a single incident of trauma or by exposure to hazardous
noise in the course of and resulting from employment, the degree of
permanent partial disability, if any, shall be determined in
accordance with the provisions of this section and awards made in
accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz shall be determined for the injured ear and
the total shall be divided by four to ascertain the average decibel
loss;
(2) The percent of monaural hearing impairment for the injured
ear shall be calculated by multiplying by one and six-tenths
percent the difference by which the aforementioned average decibel
loss exceeds twenty-seven and one-half decibels, up to a maximum of
one hundred percent hearing impairment, which maximum is reached at
ninety decibels; and
(3) The percent of monaural hearing impairment obtained shall
be multiplied by twenty-two and one-half to ascertain the degree of
permanent partial disability.
(c) The percent of permanent partial disability for a binaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz is determined for each ear and the total for
each ear shall be divided by four to ascertain the average decibel
loss for each ear;
(2) The percent of hearing impairment for each ear is
calculated by multiplying by one and six-tenths percent the
difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred
percent hearing impairment, which maximum is reached at ninety
decibels;
(3) The percent of binaural hearing impairment shall be
calculated by multiplying the smaller percentage (better ear) by
five, adding this figure to the larger percentage (poorer ear) and
dividing the sum by six; and
(4) The percent of binaural hearing impairment obtained shall
be multiplied by fifty-five to ascertain the degree of permanent
partial disability.
(d) No permanent partial disability benefits shall be granted
for tinnitus, psychogenic hearing loss, recruitment or hearing loss
above three thousand hertz.
(e) An additional amount of permanent partial disability shall
be granted for impairment of speech discrimination, if any, to
determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added
together and the result divided by two to calculate the average
percentage of speech discrimination, and the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination obtained. To determine the
additional amount for monaural impairment, the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination in the injured ear.
TABLE
% of Permanent
% of Speech Discrimination Partial Disability
90% and up to and including 100% 0%
80% and up to but not including 90% 1%
70% and up to but not including 80% 3%
60% and up to but not including 70% 4%
0% and up to but not including 60% 5%
(f) No temporary total disability benefits shall be granted
for noise-induced hearing loss.
(g) An application for benefits alleging a noise-induced
hearing loss shall set forth the name of the employer or employers
and the time worked for each. The Insurance Commissioner may
allocate to and divide any charges resulting from the claim among
the employers with whom the claimant sustained exposure to
hazardous noise for as much as sixty days during the period of
three years immediately preceding the date of last exposure. The
allocation is based upon the time of exposure with each employer.
In determining the allocation, the Insurance Commissioner shall
consider all the time of employment by each employer during which
the claimant was exposed and not just the time within the three-
year period under the same allocation as is applied in occupational pneumoconiosis cases.
(h) The employer against whom the claim is filed shall provide
for prompt referral the claims for evaluation, for all medical
reimbursement and for prompt authorization of hearing enhancement
devices.
§23-4-8. Physical examination of claimant.
(a) The Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, may, after due notice to
the claimant, whenever in its opinion it is necessary, order a
claimant of compensation for a personal injury other than
occupational pneumoconiosis to appear for examination before a
medical examiner or examiners selected by the Insurance
Commissioner, other private carrier or self-insured employer,
whichever is applicable; and the claimant and employer each may
select a physician of the claimant's or the employer's own choosing
and at the claimant's or the employer's own expense to participate
in the examination. All examinations shall be performed in
accordance with the protocols and procedures established by rules
of the Insurance Commissioner: Provided, That the physician may
exceed these protocols when additional evaluation is medically
necessary. The claimant and employer shall be furnished with a
copy of the report of examination made by the medical examiner or
examiners. The physicians selected by the claimant and employer
have the right to submit a separate report to, or concur in any
report made by the medical examiner or examiners selected by the
Insurance Commissioner, private carrier or self-insured employer, and any separate report shall be considered in passing upon the
claim.
(b) If the compensation claimed is for occupational
pneumoconiosis, the Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, may, after due
notice to the employer, order a claimant to appear for examination
before the Occupational Pneumoconiosis Board provided for in
section eight-a of this article.
(c) Where the claimant is ordered to appear for an examination
by the Occupational Pneumoconiosis Board pursuant to subsection (b)
of this section or is required to undergo a medical examination or
examinations, pursuant to subsection (a) of this section, the party
that referred the claimant to the Occupational Pneumoconiosis Board
or required the medical examination shall reimburse the claimant
for loss of wages and reasonable traveling expenses as set forth in
subsection (e) of this section and other expenses in connection
with the examination or examinations.
(d) The claimant shall be reimbursed for reasonable traveling
expenses as set forth in subsection (e) of this section incurred in
connection with medical examinations, appointments and treatments,
including appointments with the claimant's authorized treating
physician.
(e) The claimant's traveling expenses include, at a minimum,
reimbursement for meals, lodging and milage
. Reimbursement for
travel in a personal motor vehicle shall be at the milage
reimbursement rates contained in the Department of Administration's Purchasing Division Travel Rules as authorized by section eleven,
article three, chapter twelve of this code in effect at the time
the treatment is authorized.
§23-4-8c. Occupational Pneumoconiosis Board; reports and
distribution thereof; presumption; findings required of board;
objection to findings; procedure thereon; limitations on
refilings; consolidation of claims.
(a) The Occupational Pneumoconiosis Board, as soon as
practicable, after it has completed its investigation, shall make
its written report, to the Insurance Commissioner, private carrier
or self-insured employer, whichever is applicable, of its findings
and conclusions on every medical question in controversy and the
board shall send one copy of the report to the employee or claimant
and one copy to the employer. The board shall also return to and
file with the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, all the evidence as well
as all statements under oath, if any, of the persons who appeared
before it on behalf of the employee or claimant, or employer, and
also all medical reports and X-ray examinations produced by or on
behalf of the employee or claimant, or employer.
(b) If it can be shown that the claimant or deceased employee
has been exposed to the hazard of inhaling minute particles of dust
in the course of and resulting from his or her employment for a
period of ten years during the fifteen years immediately preceding
the date of his or her last exposure to such hazard and that the
claimant or deceased employee has sustained a chronic respiratory disability, it shall be presumed that the claimant is suffering or
the deceased employee was suffering at the time of his or her death
from occupational pneumoconiosis which arose out of and in the
course of his or her employment. This presumption is not
conclusive.
(c) The findings and conclusions of the board shall set forth,
among other things, the following:
(1) Whether or not the claimant or the deceased employee has
contracted occupational pneumoconiosis and, if so, the percentage
of permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was
sufficient to have caused the claimant's or deceased employee's
occupational pneumoconiosis or to have perceptibly aggravated an
existing occupational pneumoconiosis or other occupational disease;
and
(3) What, if any, physician appeared before the board on
behalf of the claimant or employer and what, if any, medical
evidence was produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of the
findings and conclusions of the board, the party shall file with
the Office of Judges, within sixty days from receipt of the copy to
that party, unless for good cause shown the chief administrative
law judge extends the time, the party's objections to the findings
and conclusions of the board in writing, specifying the particular
statements of the board's findings and conclusions to which such
party objects. The filing of an objection within the time specified is a condition of the right to litigate the findings and
therefore jurisdictional. After the time has expired for the
filing of objections to the findings and conclusions of the board,
the commission or administrative law judge shall proceed to act as
provided in this chapter. If after the time has expired for the
filing of objections to the findings and conclusions of the board
no objections have been filed, the report of a majority of the
board of its findings and conclusions on any medical question shall
be taken to be plenary and conclusive evidence of the findings and
conclusions stated in the report. If objection has been filed to
the findings and conclusions of the board, notice of the objection
shall be given to the board and the members of the board joining in
the findings and conclusions shall appear at the time fixed by the
Office of Judges for the hearing to submit to examination and
cross-examination in respect to the findings and conclusions. At
the hearing, evidence to support or controvert the findings and
conclusions of the board shall be limited to examination and cross-
examination of the members of the board and to the taking of
testimony of other qualified physicians and roentgenologists.
(e) In the event that a claimant receives a final decision
that he or she has no evidence of occupational pneumoconiosis, the
claimant is barred for a period of three years from the date of the
Occupational Pneumoconiosis Board's decision or until his or her
employment with the employer who employed the claimant at the time
designated as the claimant's last date of exposure in the denied
claim has terminated, whichever is sooner, from filing a new claim or pursuing a previously filed, but unruled upon, claim for
occupational pneumoconiosis or requesting a modification of any
prior ruling finding him or her not to be suffering from
occupational pneumoconiosis. For the purposes of this subsection,
a claimant's employment shall be considered to be terminated if,
for any reason, he or she has not worked for that employer for a
period in excess of ninety days. Any previously filed, but unruled
upon, claim shall be consolidated with the claim in which the
board's decision is made and shall be denied together with the
decided claim. The provisions of this subsection shall not be
applied in any claim where doing so would, in and of itself, later
cause a claimant's claim to be forever barred by the provisions of
section fifteen of this article.
(f) Effective upon termination of the commission, the
Insurance Commissioner shall assume all administrative powers and
responsibilities necessary to administer sections eight-a, eight-b
and eight-c of this article.
§23-4-8d. Occupational pneumoconiosis claims never closed for
medical benefits.
Notwithstanding the provisions of subdivision (4), subsection
(a), section sixteen of this article, a request for medical
services, durable medical goods or other medical supplies in an
occupational pneumoconiosis claim may be made at any time.
§23-4-15b. Determination of nonmedical questions; claims for
occupational pneumoconiosis; hearing.
If a claim for occupational pneumoconiosis benefits is filed by an employee within three years from and after the last day of
the last continuous period of sixty days' exposure to the hazards
of occupational pneumoconiosis, the Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, shall
determine whether the claimant was exposed to the hazards of
occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within three
years prior to the filing of his or her claim, whether in the State
of West Virginia the claimant was exposed to such hazard over a
continuous period of not less than two years during the ten years
immediately preceding the date of his or her last exposure to the
hazard and whether the claimant was exposed to the hazard over a
period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure to the
hazard. If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the
employee's occupational pneumoconiosis was made known to the
employee by a physician, the Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable,
shall
determine whether the claimant filed his or her application within
that period and whether in the State of West Virginia the claimant
was exposed to the hazard over a continuous period of not less than
two years during the ten years immediately preceding the date of
last exposure to the hazard and whether the claimant was exposed to
the hazard over a period of not less than ten years during the
fifteen years immediately preceding the date of last exposure to the hazard. If a claim for occupational pneumoconiosis benefits is
filed by a dependent of a deceased employee, the Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable,
shall determine whether the deceased employee was
exposed to the hazards of occupational pneumoconiosis for a
continuous period of not less than sixty days while in the employ
of the employer within ten years prior to the filing of the claim,
whether in the State of West Virginia the deceased employee was
exposed to the hazard over a continuous period of not less than two
years during the ten years immediately preceding the date of his or
her last exposure to the hazard and whether the claimant was
exposed to the hazard over a period of not less than ten years
during the fifteen years immediately preceding the date of his or
her last exposure to the hazard. The Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
shall also determine other nonmedical facts that, in the opinion of
the Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable
, are pertinent to a decision on
the validity of the claim.
The Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable,
shall enter an order with
respect to nonmedical findings within ninety days following receipt
by the Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable,
of both the claimant's
application for occupational pneumoconiosis benefits and the
physician's report filed in connection with the claimant's application and shall give each interested party notice in writing
of these findings with respect to all the nonmedical facts. The
findings and actions of the Insurance Commissioner, private carrier
or self-insured employer, whichever is applicable,
are final unless
the employer, employee, claimant or dependent, within sixty days
after receipt of the notice, objects to the findings and, unless an
objection is filed within the sixty-day period, the findings are
forever final, the time limitation is a condition of the right to
litigate the findings and therefore jurisdictional. Upon receipt
of an objection, the chief administrative law judge shall set a
hearing as provided in section nine, article five of this chapter.
In the event of an objection to the findings by the employer, the
claim shall, notwithstanding the fact that one or more hearings may
be held with respect to the objection, mature for reference to the
Occupational Pneumoconiosis Board with like effect as if the
objection had not been filed. If the administrative law judge
concludes after the protest hearings that the claim should be
dismissed, a final order of dismissal shall be entered. The final
order is subject to appeal in accordance with the provisions of
sections ten and twelve, article five of this chapter. If the
administrative law judge concludes after the protest hearings that
the claim should be referred to the Occupational Pneumoconiosis
Board for its review, the order entered shall be interlocutory only
and may be appealed only in conjunction with an appeal from a final
order with respect to the findings of the Occupational
Pneumoconiosis Board.
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 subsection (c), section
eight, article two-c of this chapter, and 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 any
occupational pneumoconiosis or occupational disease claim or any
injury claim in which temporary total benefits are being claimed,
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 July 1, 2008, in which a decision to deny benefits is
protested and the matter involves an issue as to 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:
(1) An application for benefits be designated as a petition to
reopen, effective as of the original date of filing;
(2) A petition to reopen be designated as an application for
benefits, effective as of the original date of filing; or
(3) 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, effective as of the original date of
filing.
(d) 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.
(e) 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.
§23-5-3. Refusal to reopen claim; notice; objection.
If it appears to the Insurance Commissioner, private insurance
carriers and self-insured employers, whichever is applicable, that
an application filed under section two of this article fails to
disclose a progression or aggravation in the claimant's condition,
or some other fact or facts which were not previously considered in
its former findings and which would entitle the claimant to greater
benefits than the claimant has already received, the Insurance
Commissioner, private insurance carriers and self-insured
employers, whichever is applicable, shall, within a reasonable
time, notify the claimant and the employer that the application
fails to establish a prima facie cause for reopening the claim.
The notice shall be in writing stating the reasons for denial and
the time allowed for objection to the decision of the commission.
The claimant may, within sixty days after receipt of the notice,
object in writing to the finding. Unless the objection is filed
within the sixty-day period, no objection shall be allowed. This time limitation is a condition of the right to objection and hence
jurisdictional. Upon receipt of an objection, the Office of Judges
shall afford the claimant an evidentiary hearing as provided in
section nine of this article.
§23-5-16. Fees of attorney for claimant; unlawful charging or
receiving of attorney fees.
(a) No attorney's fee in excess of twenty percent of any award
granted shall be charged or received by an attorney for a claimant
or dependent. In no case shall the fee received by the attorney of
such claimant or dependent be in excess of twenty percent of the
benefits to be paid during a period of two hundred eight weeks.
The interest on disability or dependent benefits as provided for in
this chapter shall not be considered as part of the award in
determining any such attorney's fee. However, any contract entered
into in excess of twenty percent of the benefits to be paid during
a period of two hundred eight weeks, as herein provided, shall be
unlawful and unenforceable as contrary to the public policy of this
state and any fee charged or received by an attorney in violation
thereof shall be deemed an unlawful practice and render the
attorney subject to disciplinary action.
(b) On a final settlement an attorney may charge a fee not to
exceed twenty percent of the total value of the medical and
indemnity benefits: Provided, That this attorney's fee, when
combined with any fees previously charged or received by the
attorney for permanent partial disability or permanent total
disability benefits may not exceed twenty percent of an award of benefits to be paid during a period of two hundred eight weeks.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers
in default to workers' compensation funds; injunctions against
defaulting employers.
(a) Upon termination of the Workers' Compensation Commission,
all of the powers and authority previously conferred upon the
Workers' Compensation Commission pursuant to article two, chapter
twenty-three of this code, relating to employers in default to the
Workers' Compensation Fund, are hereby transferred to the Insurance
Commissioner and shall be applied by the commissioner to those
employers in default to the Old Fund or having liability to the
Uninsured Employer Fund or who are in policy default or fail to
maintain mandatory workers' compensation coverage, all as defined
in article two-c, chapter twenty-three of this code.
(b) In any case in which an employer is in default to the Old
Fund or has liability to the Uninsured Employer Fund or who is in
default on a policy or otherwise fails to maintain mandatory
workers' compensation coverage, all as defined in article two-c,
chapter twenty-three of this code, the commission may bring an
action in the circuit court of Kanawha County to enjoin the
employer from continuing to operate the employer's business:
Provided, That the commissioner may, in his or her sole discretion,
and as an alternative to this action pursuant to this subsection,
require the employer to file a bond, in the form prescribed by the commissioner, with satisfactory surety in an amount not less than
one hundred fifty percent of the total payments, interest and
penalties due.
(c) In any action instituted pursuant to subsection (b) of
this section, the circuit court shall issue an injunction
prohibiting the employer from operating the employer's business if
the Insurance Commissioner proves by a preponderance of the
evidence, that the employer is in default to the Old Fund or has
liability to the uninsured fund or is in policy default or has
otherwise failed to maintain mandatory workers' compensation
coverage.
(d) Notwithstanding any provision of this code to the
contrary, the commissioner shall have the authority to waive
penalty and interest accrued on moneys due the Old Fund. The
enactment of the provisions of this subsection shall be applied
retrospectively to January 1, 2006, and may not be construed to
require the commissioner to adjust or otherwise modify any
agreements reached with regard to the payment of penalty or
interest since that date.
(e) Notwithstanding any provision of this code to the
contrary, the Insurance Commissioner may compromise and settle any
claims for moneys due to the Old Fund or the Uninsured Employer
Fund. Information regarding settlements is subject to chapter
twenty-nine-b of this code. The commissioner shall submit to the
President of the Senate, the Speaker of the House of Delegates and
the Legislative Auditor an annual report summarizing the settlements into which he or she has entered pursuant to this
subsection. The summary shall describe the parties involved, the
total amount owed and portions paid, and the terms of the
settlement.
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