ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 537
(By Senators Minard and McCabe)
____________
[Originating in the Committee on the Judiciary;
reported March 26, 2009.]
____________
A BILL 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-
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;
allowing subrogation for indemnity and medical benefits for
certain claims arising or accruing on or after January 1, 2006; authorizing negotiation of amount to accept as
subrogation; authorizing deduction from subrogation reasonable
attorney fees for claims that arose in whole or in part prior
to effective date of this act and all claims thereafter;
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; 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; authorizing award of attorney
fees in medical benefits claims; 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, §23-4-8c 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 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 thirty
sixty days: Provided, however, That this section is also
applicable to contracts for consecutive periods of work that total
more than thirty 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 first-class 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, this section
subsections (a) through (f), 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 and the rule
adopted in accordance herewith: 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 amendment and reenactment of this section by
the Legislature 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.
(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.
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) the commission 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 a 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) The commission or self-insured employer For claims that
arose or accrued, in whole or in part, prior to the effective date
of the amendment and reenactment of this section by the seventy-
ninth Legislature 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. It is the duty of
the injured worker, his or her dependents, his or her personal
representative, or his or her attorney to notify the commission and
the employer, when the claim is filed against the third party.
(c) (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 commission Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable. Any injured worker,
his or her dependents or personal representative who receives
moneys in settlement in any manner of a claim against a third party
remains subject to the subrogation lien until payment in full of
the amount permitted to be subrogated under subsection (b) of this
section is paid.
(e) (d) Effective January 1, two thousand six, the commission,
any successor to the commission, any other private carrier and any
self-insured employer shall be allowed statutory subrogation with
regard to all medical and indemnity benefits actually paid as of
the date of the recovery, The commission, successor to the
commission, any other private carrier and the self-insured employer
shall permit the deduction from the amount received a reasonable
attorney's fees and costs, and may negotiate the amount to accept
as subrogation. 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 commission, successor to
the commission, any other Insurance Commissioner, private carrier
or the 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. The right
of subrogation granted by the provisions of this subsection shall
not attach to any claim arising from a right of action which arose
or accrued, in whole or in part, prior to the effective date of the
amendment and reenactment of this section during the year two
thousand five.
(e) The right of subrogation granted the commission in
subsections (a) through (c), inclusive, of this section shall be
exercised by the Insurance Commissioner and his or her designated
administrator of the old fund, as set forth in article two-c of
this chapter, for any claim arising from a right of action which
arose or accrued, in whole or in part, prior to the effective date
of the amendment and reenactment of this section during the year
two thousand five. The Insurance Commissioner and his or her
designated administrator shall be paid a recovery fee of ten percent of the actual amount recovered through subrogation with the
remainder to be deposited into the old fund.
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 Workers' Compensation Board of Managers or 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. --
(1) If the Insurance Commissioner determines that the
claimant's employer maintained a policy of workers' compensation insurance pursuant to this chapter on the date of injury or last
exposure or that the employer was not required to maintain such a
policy on such date, then the claim shall not be accepted into the
fund; if the commissioner determines that the employer was required
to maintain such a policy but failed to do so, the claim will be
accepted into the fund and the Insurance Commissioner may assign
such a claim to the third-party administrator of the fund for
administration.
(2) The Insurance Commissioner shall notify the injured
employee and the named employer of the determination made pursuant
to subdivision (1) of this subsection and any party aggrieved
thereby shall be entitled to protest such determination in a
hearing before the Insurance Commissioner: Provided, That in any
such proceeding, the employer has the burden of proving that it
either provided mandatory workers' compensation insurance coverage
or that it was not required to maintain workers' compensation
insurance. 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-e, 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
the 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.
(e) Protests to claims decisions -- Any party aggrieved by a
claims decision made by the Insurance Commissioner or the third-
party administrator in a claim that has been accepted into the fund
may object to that decision by filing a protest with the office of
judges as set forth in article five of this chapter.
§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 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
the thirtieth day of June, two thousand twelve 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 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 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 or
registered with the Insurance Commissioner in accordance with
article forty-six, chapter thirty-three of the 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 an insurer,
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 the insurer of
his or her employer 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 cause of 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 initial 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 company, 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 initial temporary total disability benefits or
medical benefits, the company, 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 Workers'
Compensation Commission, the successor to the commission, Insurance
Commissioner, other private carriers 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 commission, successor to the commission Insurance
Commissioner, other 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 commission 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 commission, successor to the
commission Insurance Commissioner, other 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 commission, successor to the commission Insurance
Commissioner, other 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 commission,
successor to the commission Insurance Commissioner, other 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 initial 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 commission, successor to the
commission Insurance Commissioner, other 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
commission, successor to the commission Insurance Commissioner,
other 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 other
information necessary for a determination. The commission,
successor to the commission Insurance Commissioner, other 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
commission 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 commission, successor to the commission Insurance
Commissioner, other 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 commission, successor to the
commission Insurance Commissioner, other 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
commission, successor to the commission Insurance Commissioner,
other 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 commission 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
commission, successor to the commission Insurance Commissioner,
other 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 commission,
successor to the commission Insurance Commissioner, other 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 commission, successor to the commission Insurance
Commissioner, other private carrier or self-insured employer,
whichever is applicable, shall make the payments at the rate the
commission, successor to the commission Insurance Commissioner,
other 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 commission 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 commission, successor to the
commission Insurance Commissioner, other 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) Where the employer is a subscriber to the Workers'
Compensation Fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the commission The
Insurance Commissioner, private carrier or self insured employer
shall mail deliver all workers' compensation checks paying amounts
due for temporary total disability benefits directly to the
claimant and not to the employer for delivery 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 division 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 division 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 division Insurance Commissioner, private
carrier or self-insured, whichever is applicable, shall, when the
employer is a subscriber to the fund, 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 commission, the successor to the commission
Insurance Commissioner, other 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 commission, successor to the
commission Insurance Commissioner, other 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
commission, successor to the commission Insurance Commissioner,
other 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 commission Insurance Commissioner,
private carrier or self-insured of the duplication of the benefits
paid to the claimant. Upon receipt of the notice, the commission,
successor to the commission Insurance Commissioner, other 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 commission shall 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 commission
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 commission employer against whom the claim is filed
shall provide consistent with current practice, for prompt referral
the claims for evaluation, for all medical reimbursement and for
prompt authorization of hearing enhancement devices.
(i) The provisions of this section and the amendments to section six of this article insofar as applicable to permanent
partial disabilities for hearing loss are operative as to any claim
filed after thirty days from the effective date of this section.
(j) Effective upon termination of the commission, the
administrative duties governing hearing loss claims shall transfer
to the Insurance Commissioner.
§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 commission, successor to the commission,
other Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable, of its findings and conclusions
on every medical question in controversy and the commission 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 commission 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 commission or, on or after the first day of July, one thousand nine hundred ninety-one, with the Office of Judges, within thirty
sixty days from receipt of the copy to that party, unless for good
cause shown the commission or 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 commission or 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.
(a) 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 commission 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 commission 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
commission 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 commission
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable,
shall also determine other nonmedical
facts that, in the commission's 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 commission shall enter an order with respect to nonmedical
findings within ninety days following receipt by the commission 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 commission are final unless
the employer, employee, claimant or dependent, within thirty sixty
days after receipt of the notice, objects to the findings and,
unless an objection is filed within the thirty-day sixty-day
period, the findings are forever final, the time limitation is a
condition of the right to litigate the findings and therefor
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.
(b) The administrative duties required to be performed by the
commission pursuant to section fifteen-b of this article, and all
applicable exempt legislative rules shall transfer from the
commission to the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, effective upon
termination of the commission.
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 the
any occupational pneumoconiosis or occupational disease claim but
in no event later than the date of the initial decision on the
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: Provided, That this sixty-day period is applicable to
the following provisions of this chapter that provide for a
different time in which to file a protest: Subsection (d), section
eight-c, article four and subsection (a), section fifteen-b,
article four. unless 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 only controversy relating to compensability is
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) (c) The Office of Judges may direct that:
(i) (1) An application for benefits be designated as a
petition to reopen, effective as of the original date of filing;
(ii) (2) A petition to reopen be designated as an application
for benefits, effective as of the original date of filing; or
(iii) (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.
(c) (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.
(d) (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 commission, the successor to the
commission Insurance Commissioner, other 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, commission, the successor to the commission, other
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 thirty sixty days after receipt of the notice, object in
writing to the finding. Unless the objection is filed within the
thirty-day 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
In any claim in which full and final settlement has not
occurred, 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) For the settlement of any claim for medical benefits only,
an attorney who has not received, and is not entitled to any fees
under subsection (a) of this section, may receive an attorney's fee
of twenty percent of the total value of the settlement.
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.