H. B. 4214
(By Delegates Fleischauer, Miley, Brown, Caputo,
Guthrie, Longstreth, Perdue, D. Poling,
Shook, Williams and Ellem)
[Introduced January 28, 2010; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §23-5-7 of the Code of West Virginia,
1931, as amended, relating to requiring review and approval of
final settlements of Workers' Compensation awards.
Be it enacted by the Legislature of West Virginia:
That §23-5-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. Review.
§23-5-7. Compromise and settlement.
(a) With the exception of medical benefits for nonorthopedic
occupational disease claims, the claimant, the employer and the
workers' compensation commission, the Insurance Commissioner, the
successor to the commission, other private insurance carriers
carrier and self-insured employers or self-insured employer,
whichever is applicable, and the claimant may negotiate a final
settlement of any and all issues in a claim, and any settlement
agreement may provide for a lump-sum payment or a structured payment plan, or any combination thereof, or any other basis as the
parties may agree, including those settlements made pursuant to
article two-c of this chapter
: Provided, That every settlement
proposal must be submitted to the compromise settlement division
for review and approval in accordance with this section and the
rules promulgated hereunder upon a finding that the settlement is
in the best interests of the claimant or, if the claimant is
deceased, his or her dependents, the employer and the state
wherever the claim is in the administrative or appellate processes.
If the employer is not active in the claim, the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, may negotiate a
final settlement of any and all issues in a claim except for
medical benefits for nonorthopedic occupational disease claims with
the claimant and said settlement shall be made a part of the claim
record.
(b) The Insurance Commissioner shall establish within the
office of judges a compromise settlement division to review each
settlement subject to approval and to issue a recommendation to the
chief administrative law judge.
(c) Every settlement proposal, including settlements involving
the Insurance Commissioner acting as administrator of claims
involving funds created in article two-c of this chapter, must be
on forms prescribed by the Insurance Commissioner.
(d) (1) Upon receipt of a completed application for approval of a settlement proposal, the compromise settlement division shall,
after consideration of those factors contained herein and as
prescribed by rule, issue its recommendation to the chief
administrative law judge within thirty days.
(2) Upon review of such a recommendation, the chief
administrative law judge shall enter an order either:
(A) Adopting the recommendation as filed if he or she finds
that the settlement is in the best interests of the claimant and
his or her dependents, the employer and the state; or
(B) Rejecting the recommendation and, if the chief judge deems
it advisable, remanding the matter to the settlement review
division with directions to resubmit the recommendation after
reconsideration of any issues designated in the remand order.
(3) Settlements of claims or orders approving settlements
issued pursuant to this section are not subject to further review,
including a hearing or review under sections thirteen and fourteen,
article two, chapter thirty-three of this code, respectively, and,
except Except in cases of fraud, no issue that is the subject of
such a an approved settlement agreement may be reopened by any
party. including the commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable. Any settlement agreement may provide for
a lump-sum payment or a structured payment plan, or any combination
thereof, or any other basis as the parties may agree.
(e) If a self-insured employer later fails to make the agreed-upon payment, the commission Insurance Commissioner shall assume
the obligation to make the payments and shall recover the amounts
paid or to be paid from the self-insurer employer and its sureties
or guarantors or both as provided in section five and five-a,
article two of this chapter.
(g) The Insurance Commissioner shall promulgate rules in
accordance with subsection (b), section ten, article two, chapter
thirty-three of this code, to establish standards and procedures
for the review and approval of all settlement proposals.
Standards for review include at a minimum, the following:
(1) The extent to which the proposal avoids undue expense,
litigation or extreme hardship;
(2) The possible shifting of costs for future medical and
other expenses of the claimant to the state or other persons;
(3) Verification that the claimant fully understands the
impact of the settlement on future insurance claims relating to the
injury; and
(4) Administrative penalties for noncompliance with this
section.
Each settlement agreement shall provide the toll free number
of the West Virginia State Bar Association and shall provide the
injured worker with five business days to revoke the executed
agreement. The Insurance Commissioner may void settlement
agreements entered into by an unrepresented injured worker which
are determined to be unconscionable pursuant to criteria established by rule of the commissioner.
The amendments to this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-nine shall apply to all settlement agreements executed after
the effective date.
NOTE: The purpose of this bill is to require review and
approval of final settlements of Workers' Compensation awards.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added