§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.