Senate Bill No. 579
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Introduced February 18, 1999;
referred to the Committee on the Judiciary.]
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A BILL to repeal section sixteen, article one, chapter twenty-
three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to repeal sections three-a
and nineteen, article four of said chapter; to amend and
reenact sections two, five, five-d, thirteen, fourteen and
fifteen, article two of said chapter; to further amend said
article by adding thereto a new section, designated section
five-b; to amend and reenact section four, article three of
said chapter; to amend and reenact sections six, nine and
ten, article four of said chapter; to amend and reenact
sections seven and nine, article five of said chapter; to
amend and reenact section one, article six of said chapter;
and to amend article three, chapter sixty-one of said code
by adding thereto four new sections, designated sections
twenty-four-e, twenty-four-f, twenty-four-g and twenty-four-h, all relating generally to workers' compensation and
reform thereof; using information obtained from the
unemployment compensation division to assist in the
determination of employment status; eliminating penalty
premium tax provisions; modifying the method of calculating
penalties for late reporting and other improprieties;
premium tax settlements and relief from accrued interest and
penalties; review and approval of the write-off of
uncollectible receivables by the compensation programs
performance council; interest on past-due payments; deposits
and disbursements not to be considered as abandoned
property; modifying the method of compensation of the
interdisciplinary examining board; modifying the threshold
for consideration for a permanent total disability award to
forty percent impairment or thirty-five percent disability
awarded pursuant to a statutory schedule; restoring
terminated provisions regarding physical and vocational
rehabilitation; restoring a lump sum of one hundred four
weeks benefits to dependents of permanent total disability
award recipients and providing that employers not be
directly charged with the experience of the award;
modifications concerning the compromise and settlement of
workers' compensation claims; providing for review of claim
settlements by the office of judges; requiring the office of judges to provide written notice of settlement to parties,
the appeal board or the supreme court of appeals; precluding
the reopening of settlement issues; hearings on objections
to workers' compensation decisions; providing that
objections be filed with the office of judges; requiring the
office of judges to promulgate a rule establishing an
adjudicatory process; eliminating reference to authorized
hearing locations; providing for ten days' notice of
hearings; eliminating requirement to hold hearing within
thirty days; revising record requirements; removing
requirement that office of judges' decisions be rendered
within thirty days; statement of the intent of the
Legislature to construe this article so that any benefit
adjustments and premium tax adjustments resulting therefrom
become concomitantly effective; felony offense for failure
to subscribe for employers and responsible persons;
responsible persons defined for criminal offenses; offense
of larceny of amount of premium for failure to make payment
or for intentionally disposing of assets to evade payment;
felony offense for failure to file a premium tax report;
misdemeanor offense for failure to file any reports; felony
offenses for making false reports or statements; offense of
larceny of amount of payments for fraudulently securing or
attempting to secure compensation; restitution; cessation of compensation upon conviction; felony offense for fraud in
connection with health care benefits, items or services;
felony offense for concealing material facts or making
fraudulent statements; felony offense for unlawful
conversion in connection with health care; misdemeanor
offense for failure to post notice; future services upon
conviction; misdemeanor offense to submit false
documentation; misdemeanor offense for altering any
certificate or other document; asset forfeiture upon
conviction; and venue of criminal offenses.
Be it enacted by the Legislature of West Virginia:
That section sixteen, article one, chapter twenty-three of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; that sections three-a and nineteen,
article four of said chapter be repealed; that sections two,
five, five-d, thirteen, fourteen and fifteen, article two of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section five- b; that section four, article three of said chapter be amended
and reenacted; that sections six, nine and ten, article four of
said chapter be amended and reenacted; that sections seven and
nine, article five of said chapter be amended and reenacted; that
section one, article six of said chapter be amended and
reenacted; and that article three, chapter sixty-one of said code be amended by adding thereto four new sections, designated
sections twenty-four-e, twenty-four-f, twenty-four-g and twenty- four-h, all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-2. Commissioner to be furnished information by employers, state tax commissioner and division of unemployment compensation; secrecy of information; examination of employers, etc.; violation a misdemeanor.
(a) Every employer shall furnish the commissioner, upon
request, all information required by him or her to carry out the
purposes of this chapter. The commissioner, or any person
employed by the commissioner for that purpose, shall have the
right to examine under oath any employer or officer, agent or
employee of any employer.
(b) Notwithstanding the provisions of any other statute,
specifically, but not exclusively, sections five and five-b,
article ten, chapter eleven of this code and section eleven,
article ten, chapter twenty-one-a of this code, the commissioner
of the bureau of employment programs may receive the following
information:
(1) Upon written request to the state tax commissioner: The
names, addresses, places of business and other identifying information of all businesses receiving a business franchise
registration certificate and the dates thereof; and the names and
social security numbers or other tax identification numbers of
the businesses and of the businesses' workers and employees, if
otherwise collected, and the quarterly and annual gross wages or
other compensation paid to the workers and employees of such
businesses reported pursuant to the requirement of withholding of
tax on income.
(2) Upon written application to the division of unemployment
compensation: In addition to the information that may be
released to the division of workers' compensation for the
purposes of this chapter under the provisions of chapter
twenty-one-a of this code, the names, addresses and other
identifying information of all employing units filing reports and
information pursuant to section eleven, article ten, chapter
twenty-one-a of this code as well as information contained in
those reports regarding the number and names, addresses, and
social security numbers of employees employed and the gross
quarterly wages paid by each employing unit to each identified
employee.
(c) All information acquired by the division of workers'
compensation pursuant to subsection (b) of this section shall be
used only for auditing premium payments,
assisting in the
determination of employment status, and registering businesses under the single point of registration program as defined in
section two, article one, chapter eleven of this code. The
division of workers' compensation, upon receiving the business
franchise registration certificate information made available
pursuant to subsection (b) of this section, shall contact all
businesses receiving a business franchise registration
certificate and provide all necessary forms to register the
business under the provisions of this article. Any officer or
employee of this state who uses the aforementioned information in
any manner other than the one stated herein or elsewhere
authorized in this code, or who divulges or makes known in any
manner any of the aforementioned information shall be guilty of
a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or imprisoned in the county jail
for not more than one year, or both, together with cost of
prosecution.
(d) Reasonable costs of compilation and production of any
information made available pursuant to subsection (b) of this
section shall be charged to the division of workers'
compensation.
(e) Information acquired by the commissioner pursuant to
subsection (b) of this section shall not be subject to disclosure
under the provisions of chapter twenty-nine-b of this code.
§23-2-5. Application; payment of premium taxes; gross wages; payroll report; deposits; delinquency; default; reinstatement; payment of benefits; notice to
employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation
fund, each employer who is required to subscribe to the fund or
who elects to subscribe to the fund shall pay premium taxes
calculated as a percentage of the employer's gross wages payroll
at the rate determined by the workers' compensation division and
then in effect. At the time each employer subscribes to the
fund, the application required by the division shall be filed and
a premium deposit equal to the first quarter's estimated premium
tax payment shall be remitted. The minimum quarterly premium to
be paid by any employer shall be twenty-five dollars.
(1) Thereafter, premium taxes shall be paid quarterly on or
before the last day of the month following the end of the
quarter, and shall be the prescribed percentage of the entire
gross wages of all employees, from which net payroll is
calculated and paid, during the preceding quarter:
Provided,
That the division may permit employers who shall qualify under
the provisions of rules to be promulgated and made effective on
or after the first day of July, one thousand nine hundred
ninety-six, by the compensation programs performance council to
report gross wages and pay premium taxes at other intervals.
(2) At the time each premium
tax is paid, every subscribing employer shall make a gross wages payroll report to the division
for the preceding quarter. The report shall be on the form or
forms prescribed by the division, and shall contain all
information required by the division.
(3) After subscribing to the fund, each employer shall remit
with each gross wages payroll report and premium tax payment an
amount calculated to be sufficient to maintain a premium deposit
equal to the previous quarter's premium payment:
Provided, That
the division may reduce the amount of the premium deposit
required from seasonal employers for those quarters during which
employment is significantly reduced.
If the employer pays
premium tax on a basis other than quarterly, the division may
require the deposit to be based upon some other time period. The
premium deposit shall be credited to the employer's account on
the books of the division and used to pay
premiums premium taxes
and any other sums due the fund when an employer becomes
delinquent or in default as provided in this article.
(4) All premium taxes and premium deposits required by this
article to be paid shall be paid by the employers to the
division, which shall maintain a record of all sums so received.
Any such sum mailed to the division shall be deemed to be
received on the date the envelope transmitting it is postmarked
by the United States postal service. All sums received by the
division shall be deposited in the state treasury to the credit of the workers' compensation division in the manner now
prescribed by law.
(5) The division may encourage employer efforts to create
and maintain safe workplaces, to encourage loss prevention
programs, and to encourage employer provided wellness programs,
through the normal operation of the experience rating formula,
seminars and other public presentations, the development of model
safety programs and other initiatives as may be determined by the
commissioner and the compensation programs performance council.
(b) Failure of an employer to timely pay premium taxes, to
timely file a payroll report, or to maintain an adequate premium
deposit, shall cause the employer's account to become delinquent.
No employer will be declared delinquent or be assessed any
penalty therefor if the division determines that such delinquency
has been caused by delays in the administration of the fund. The
division shall, in writing, within sixty days of the end of each
quarter notify all delinquent employers of their failure to
timely pay
premiums premium taxes, to timely file a payroll
report, or to maintain an adequate premium deposit. Each
employer who shall fail to timely file any quarterly payroll
report or timely pay the premium tax due with such report, or
both, for any quarter commencing on and after the first day of
July, one thousand nine hundred ninety-five, shall pay a late
reporting or payment penalty of the greater of fifty dollars or
ten percent of a sum obtained by multiplying the premium tax due
but not to exceed five hundred dollars, with such report
by the
penalty rate applicable to that quarter. The penalty rate to be
used in a workers' compensation division's fiscal year shall be
calculated annually on the first day of each fiscal year. The
penalty rate used to calculate the penalty for each quarter in a
fiscal year is the quotient, rounded to the nearest higher whole
number percentage rate, obtained by dividing the sum of the prime
rate plus four percent by four. The prime rate shall be the rate
published in the Wall Street Journal on the last business day of
the division's prior fiscal year reflecting the base rate on
corporate loans posted by at least seventy-five percent of the
nation's thirty largest banks. Such late penalty shall be paid
with the most recent quarter's report and payment and is due when
that quarter's report and payment are filed. If such late
penalty is not paid when due, the same may be charged to and
collected by the division from the employer's premium deposit
account or otherwise as provided for by law. The notification
shall demand the filing of the delinquent payroll report and
payment of delinquent premium taxes, the penalty for late
reporting or payment of premium taxes or premium deposit, the
interest penalty and an amount sufficient to maintain the premium
deposit, before the end of the third month following the end of
the preceding quarter. Interest shall accrue and be charged on the delinquent premium payment and premium deposit pursuant to
section thirteen of this article.
(c) Whenever the division notifies an employer of the
delinquent status of its account, the notification shall explain
the legal consequence of subsequent default by an employer
required to subscribe to the fund and the legal consequences of
termination of an electing employer's account.
(d) Failure by the employer, who is required to subscribe to
the fund and who fails to resolve the delinquency within the
prescribed period, shall place the account in default and shall
deprive such default employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer shall be liable as provided in section eight of
this article. The default employer's liability under said
sections shall be retroactive to midnight of the last day of the
month following the end of the quarter for which the delinquency
occurs. The division shall notify the default employer of the
method by which the employer may be reinstated with the fund.
The division shall also notify the employees of such employer by
written notice as hereinafter provided for in this section.
(e) Failure by any employer, who voluntarily elects to
subscribe, to resolve the delinquency within the prescribed
period shall place the account in default and shall automatically
terminate the election of such employer to pay into the workers' compensation fund and shall deprive such employer and the
employees of the default elective employer of the benefits and
protection afforded by this chapter, including section six of
this article, and such employer shall be liable as provided in
section eight of this article. The default employer's liability
under said section shall be retroactive to midnight of the last
day of the month following the end of the quarter for which the
delinquency occurs. Employees who were the subject of the
default employer's voluntary election to provide them the
benefits afforded by this chapter shall have such protection
terminated at the time of their employer's default.
(f)(1) Except as provided for in subdivision (3) of this
subsection, any employer who is required to subscribe to the fund
and who is in default on the effective date of this section or
who subsequently defaults, and any employer who has elected to
subscribe to the fund and who defaults and whose account is
terminated prior to the effective date of this section or whose
account is subsequently terminated, shall be restored immediately
to the benefits and protection of this chapter only upon the
filing of all delinquent payroll and other reports required by
the division and payment into the fund of all unpaid premiums, an
adequate premium deposit, accrued interest and the penalty for
late reporting and payment. Interest shall be calculated as
provided for by section thirteen of this article.
In addition, for every defaulted or terminated employer whose default or
termination lasts for two consecutive quarters or who has
defaulted or been terminated for two quarters out of the
preceding eight consecutive quarters, then when any such
employer's application for reinstatement is filed or upon any
such employer's restoration to the benefits and protection of
this chapter, for the next eight quarters, including the quarter
in which such restoration occurs, or when any such employer's
application for reinstatement is filed, the employer shall pay
premium taxes to the division at a penalty rate. The applicable
penalty premium tax shall be determined by first calculating the
employer's premium under the provisions of section four of this
article, but including any applicable experience modification,
and then multiplying that premium by one hundred ten percent.
The division shall not have the authority to waive either
premium or accrued interest.
or the imposition of the penalty
premium rate. Any employer whose default or termination does not
last for two consecutive quarters or who has not been in default
two quarters out of the preceding eight consecutive quarters
shall not have a penalty premium rate imposed The provisions of
section seventeen of this article apply to any action or decision
of the division under this section.
For purposes of section four
of this article, the extra ten percent of premium constituting
the penalty shall not be used in determining any entitlement to experience modification of the employer's premium tax rate for
future years.
(2) The division shall have the authority to restore a
defaulted or terminated employer through a reinstatement
agreement. Such reinstatement agreement shall require the
payment in full of all premium taxes, premium deposits, the
penalty for late reporting and payment, past accrued interest and
future interest calculated pursuant to the provisions of section
thirteen of this article.
The reinstatement agreement shall not
permit any modification or waiver of the penalty premium rate
provided for in subdivision (1) of this subsection.
Notwithstanding the filing of a reinstatement application or the
entering into of a reinstatement agreement, the division is
authorized to file a lien against the employer as provided by
section five-a of this article. In addition, entry into a
reinstatement agreement is discretionary with the division. Such
discretion shall be exercised in keeping with the fiduciary
obligations owed to the workers' compensation fund. Should the
division decline to enter into a reinstatement agreement and
should the employer not comply with the provisions of subdivision
(1) of this subsection, then the division may proceed with any of
the collection efforts provided for by section five-a of this
article or as otherwise provided for by this code. Applications
for reinstatement shall: (A) Be made upon forms prescribed by the division; (B) include a report of the gross wages payroll of
the employer which had not been reported to the division during
the entire period of delinquency and default, which gross wages
information shall be certified by the employer or its authorized
agent; and (C) include a payment of a portion of the liability
equal to one half of one percent of the gross payroll during the
period of delinquency and default or equal to another portion of
the liability as may be determined from time to time by rule but
not to exceed the amount of the entire liability due and owing
for the period of delinquency and default. An employer who
applies for reinstatement shall be entitled to the benefits and
protection of this chapter on the day a properly completed and
acceptable application which is accompanied by the application
payment is received by the division:
Provided, That if the
division reinstates an employer subject to the terms of a
reinstatement agreement, the subsequent failure of the employer
to make scheduled payments or to pay accrued or future interest
in accordance with the reinstatement agreement or to timely file
current quarterly reports and to pay current quarterly premiums
within the month following the end of the quarter for which the
report and payment are due, or to otherwise maintain its account
in good standing or, if the reinstatement agreement does not
require earlier restoration of the premium deposit, to restore
the premium deposit to the required amount by the end of the repayment period shall cause the reinstatement application and
the reinstatement agreement to be null, void and of no effect,
and the employer shall be denied the benefits and protection of
this chapter effective from the date that such employer's account
originally became delinquent.
(3) Any employer who fails to maintain its account in good
standing with regard to subsequent premium taxes and premium
deposits after filing an application for reinstatement and prior
to the final resolution of an application for reinstatement by
entering into a reinstatement agreement or by payment of the
liability in full as provided for in subdivision (1) of this
subsection shall cause the reinstatement application to be null,
void and of no effect, and the employer shall be denied the
benefits and protection of this chapter effective from the date
that such employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a
repayment reinstatement agreement, the division
may then make and continue with any of the collection efforts
provided for by this chapter or elsewhere in this code even if
the employer files another reinstatement application.
(g) With the exception noted in subsection (h) of section
one of this article, no employee of an employer required by this
chapter to subscribe to the workers' compensation fund shall be
denied benefits provided by this chapter because the employer failed to subscribe or because the employer's account is either
delinquent or in default.
(h)(1) The provisions of this section shall not deprive any
individual of any cause of action which has accrued as a result
of an injury or death which occurred during any period of
delinquency not resolved in accordance with the provisions of
this article, or subsequent failure to comply with the terms of
the repayment agreement.
(2) Upon withdrawal from the fund or termination of election
of any employer, the employer shall be refunded the balance due
the employer of its deposit, after deducting all amounts owed by
the employer to the workers' compensation fund and other agencies
of this state, and the division shall notify the employees of
such employer of said termination in such manner as the division
may deem best and sufficient.
(3) Notice to employees in this section provided for shall
be given by posting written notice that the employer is defaulted
under the compensation law of West Virginia, and in the case of
employers required by this chapter to subscribe and pay premiums
to the fund, that the defaulted employer is liable to its
employees for injury or death, both in workers' compensation
benefits and in damages at common law or by statute; and in the
case of employers not required by this chapter to subscribe and
pay premiums to the fund, but voluntarily electing to do so as herein provided, that neither the employer nor the employees of
such employer are protected by said laws as to any injury or
death sustained after the date specified in said notice. Such
notice shall be in the form prescribed by the division and shall
be posted in a conspicuous place at the chief works of the
employer, as the same appear in records of the division. If said
chief works of the employer cannot be found or identified, then
said notices shall be posted at the front door of the courthouse
of the county in which said chief works are located, according to
the division's records. Any person who shall, prior to the
reinstatement of said employer, as hereinbefore provided for, or
prior to sixty days after the posting of said notice, whichever
shall first occur, remove, deface or render illegible said
notice, shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined one thousand dollars, and said notice
shall state this provision upon its face. The division may
require any sheriff, deputy sheriff,
constable or other official
of the state of West Virginia, who may be authorized to serve
civil process, to post such notice and to make return thereof of
the fact of such posting to the division, and any failure of such
officer to post any notice within ten days after he or she shall
have received the same from the division, without just cause or
excuse, shall constitute a willful failure or refusal to perform
a duty required of him or her by law within the meaning of section twenty-eight, article five, chapter sixty-one of this
code. Any person actually injured by reason of such failure
shall have an action against said official, and upon any official
bond he or she may have given, for such damages as such person
may actually have incurred, but not to exceed, in the case of any
surety upon said bond, the amount of the penalty of said bond.
Any official posting said notice as herein required shall be
entitled to the same fee as is now or may hereafter be provided
for the service of process in suits instituted in courts of
record in the state of West Virginia, which fee shall be paid by
the division out of any funds at its disposal, but shall be
charged by the division against the account of the employer to
whose delinquency such notice relates.
§23-2-5b. Premium tax default settlements; relief from liability
for accrued interest and penalties; repayment terms and conditions; reinstatement to good standing; voided reinstatement agreements.
The Legislature hereby declares that it is the purpose of
this section to provide any employer who is in default as of the
effective date of this section in any payment due pursuant to the
provisions of this article an opportunity to settle the amount of
the default in accordance with the provisions hereinafter set
forth. For the purposes of this section, the term "default"
applies to any failure by an employer to subscribe to or pay premium taxes to the workers' compensation fund in accordance
with the provisions of this article. In addition, for the
purposes of this section, "employer" means any corporation,
partnership, limited liability company, sole proprietor, person
or other legal entity which is liable or which directly or
indirectly may be held liable as a responsible party for the
nonpayment of premium taxes.
(a) An employer who qualifies under this section shall have
six months from the first day of July, one thousand nine hundred
ninety-nine, to apply to the commissioner for a settlement of the
amount of premium taxes, accrued interest and penalties and any
award of attorney's fees made pursuant to subdivision (17),
section six, article two, chapter twenty-one-a of this code, owed
to the workers' compensation fund as a result of the employer's
default on premium tax payments to the division. Such
application shall be made on a form prescribed by the
commissioner and may impose on the employer such obligations and
constraints concerning the time and manner of payment as the
commissioner deems necessary to effectuate the purpose of this
section.
(b) Notwithstanding provisions in this article to the
contrary, the employer shall be relieved of liability for the
payment of the interest and penalties which have accrued by
operation of other provisions in this article and shall further be relieved of liability for payment of any award of attorney's
fees made or to be made pursuant to subdivision (17), section
six, article two, chapter twenty-one-a of this code, by tendering
payment in full of all past due premium taxes within thirty days
from the date that the commissioner notifies the employer in
writing that the application has been approved:
Provided, That
in the alternative, an employer shall be relieved of liability
for the payment of the interest and penalties which have accrued
by operation of other provisions in this article by fulfilling
the terms of a written agreement with the division to pay, within
three hundred sixty-five days from the date upon which the
agreement is executed, all past due premium taxes in monthly
installments which shall include interest on such past due
premium taxes calculated at the annual percentage rate of nine
percent.
(c) Notwithstanding any provisions in this article to the
contrary, an employer which is remitting payments to the division
pursuant to the terms of an agreement entered into prior to the
effective date of this section may apply to the commissioner in
accordance with subsection (a) of this section to discharge the
remaining balance of its indebtedness to the division by
tendering, within thirty days from the date upon which the
commissioner notifies the employer in writing that the
application has been approved, payment in full for that portion of the balance which consists of unpaid premium taxes:
Provided,
That in the alternative, an employer which is remitting payments
to the division pursuant to the terms of an agreement entered
into prior to the effective date of this section may apply to the
commissioner in accordance with subsection (a) of this section to
discharge the balance of its indebtedness to the division by
fulfilling the terms of a written agreement with the division to
pay, within three hundred sixty-five days from the date upon
which the agreement is executed, all past due premium taxes in
monthly installments which shall include interest on such past
due premium taxes calculated at an annual percentage rate of nine
percent.
(d) An employer with which the commissioner is, as of the
effective date of this section, engaged in litigation concerning
the extent to which that employer is liable to the division for
past due premium taxes, accrued interest and penalties may in
settlement: (1) Tender payment in full for the past due premium
taxes; or (2) fulfill the terms of a written agreement with the
division to pay, within three hundred sixty-five days from the
date that the agreement is executed, all past due premium taxes
in monthly installments which shall include interest on such past
due premium taxes calculated at an annual percentage rate of nine
percent.
(e) An employer shall be reinstated to good standing as of the date that the employer tenders payment in full for all past
due premium taxes. An employer who enters into a written
agreement with the division to pay past due premium taxes in
monthly installments shall be reinstated to good standing as of
the date on which the agreement is executed:
Provided, That the
failure of the employer to make scheduled payments in accordance
with a repayment agreement entered into under this section may at
the discretion of the commissioner cause the repayment agreement
to be voided and the employer shall be denied the benefits and
protections of this chapter effective from the date of the
employer's initial default. In addition, the employer shall be
subject to all remedies available to the division pursuant to the
provisions of this chapter.
§23-2-5d. Uncollectible receivables; write-offs.
Notwithstanding any other provision to the contrary, The
commissioner the division, with the approval of the
attorney
general compensation programs performance council, may write-off
any uncollected receivable due under the provisions of this
article which the
commissioner division and the
attorney
general compensation programs performance council deem to be
uncollectible.
§23-2-13. Interest on past due payments; reinstatement
agreements.
Effective the first day of July, one thousand nine hundred ninety-nine, Payments unpaid on the date on which due and
payable
as prescribed by the commissioner, shall immediately
begin bearing interest
at the rate of eighteen percent per annum
as specified hereinafter. The interest rate per annum for each
fiscal year shall be calculated as the greater of the division's
current discount rate or the prime rate plus four percent, each
rounded to the nearest whole percent. The discount rate shall be
determined by the compensation programs performance council on an
annual basis. The prime rate shall be the rate published in the
Wall Street Journal on the last business day of the division's
prior fiscal year reflecting the base rate on corporate loans
posted by at least seventy-five percent of the nation's thirty
largest banks. This same rate of interest shall be applicable
to all reinstatement agreements entered into by the commissioner
pursuant to section five of this article on and after the
effective date of this section:
Provided, That should an
employer enter into a subsequent reinstatement agreement within
seven years of the date of the first agreement, the interest rate
shall be eighteen percent per annum. Interest shall be
compounded quarterly until payment plus accrued interest is
received by the commissioner:
Provided, however, That on and
after the date of execution of a reinstatement agreement, for
determining future interest on any past due premium, premium
deposit, and past compounded interest thereon, any reinstatement agreement entered into by the commissioner shall provide for a
simple rate of interest,
determined in accordance with the
provisions of this section which shall not be subject to change
during the life of the reinstatement agreement for
the such
future interest. Interest collected pursuant to this section
shall be paid into the workers' compensation fund:
Provided,
further, That in no event shall the rate of interest charged a
political subdivision of the state or a volunteer fire department
pursuant to this section exceed ten percent per annum.
§23-2-14. Sale or transfer of business; attachment of lien for
premium, etc., payments due; criminal penalties for failure to pay; creation and avoidance or
elimination of lien; enforcement of lien; successor
liability.
(a) If any employer shall sell or otherwise transfer
substantially all of the employer's assets, so as to give up
substantially all of the employer's capacity and ability to
continue in the business in which the employer has previously
engaged, then:
(1) Such employer's premium taxes, premium deposits,
interest and other payments owed to the division shall be due and
owing to the division upon the execution of the agreement of sale
or other transfer;
(2) Any repayment agreement entered into by the employer with the division pursuant to section five of this article shall
terminate upon the execution of the aforesaid agreement of sale
or other transfer and all amounts owed to the division but not
yet paid shall become due; and
(3) Upon execution of an agreement of sale or other
transfer, as aforesaid, the division shall continue to have a
lien, as provided for in section five-a of this article, against
all of the remaining property of the employer as well as all of
the sold or transferred assets, which lien shall constitute a
personal obligation of the employer.
(b) Notwithstanding any provisions of section five-a of this
article to the contrary, in the event that a new employer
acquires by sale or other transfer or assumes all or
substantially all of a predecessor employer's assets, then:
(1) Any liens for payments owed to the division for premium
taxes, premium deposits, interest,
penalty premium rate or other
payments owed to the division by the predecessor employer shall
be extended to the successor employer;
(2) Any liens held by the division against the predecessor
employer's property shall be extended to all of the assets of the
successor employer;
and
(3) Liens acquired in the manner described in subdivisions
(1) and (2) of this subsection shall be enforceable by the
division to the same extent as provided for the enforcement of liens against the predecessor employer in section five-a of this
article.
and
(4) Unless all amounts owed by the predecessor employer are
paid prior to or at the sale or other transfer, prior defaults by
a predecessor employer shall accrue to the new employer for
purposes of determining whether the new employer is subject to
the penalty premium rate provisions of subdivision (1),
subsection (f), section five of this article.
(c) Notwithstanding the provisions of section five-a of this
article to the contrary, if any employer as described in
subsection (a) of this section shall sell or otherwise transfer
a portion of the employer's assets so as to affect the employer's
capacity to do business, then:
(1) Such employer's premium taxes, premium deposits,
interest,
penalty premium rate and other payments owed to the
division shall be due and owing to the division upon the
execution of the agreement of sale or other transfer;
(2) Any repayment agreement entered into by the employer
with the division pursuant to section five of the article shall
terminate upon the execution of the aforesaid agreement of sale
or other transfer and all amounts owed to the division but not
yet paid shall become due; and
(3) Upon execution of an agreement of sale or other
transfer, as aforesaid, the division shall continue to have a lien, as provided for in section five-a of this article, against
all of the remaining property of the employer as well as all the
sold or transferred assets, which lien shall constitute a
personal obligation of the employer.
(d) If an employer subject to subsection (a), (b) or (c) of
this section pays to the division, prior to the execution of an
agreement of sale or other transfer, a sum sufficient to retire
all of the indebtedness that the employer would owe at the time
of the execution, then the division shall issue a certificate to
the employer stating that the employer's account is in good
standing with the division and that the assets may be sold or
otherwise transferred without the attachment of the division's
lien. An agreement of sale or other transfer may provide for the
creation of an escrow account into which the employers shall pay
the full amount owed to the division. The subsequent timely
payment of that full amount to the division shall operate to
place both employers in good standing with the division to the
extent of the predecessor employer's liabilities retroactive to
the date of sale or other transfer. In the event that the
employer would not owe any sum to the division on the aforesaid
date of execution, then a certificate shall also be issued to the
employer upon the employer's request stating that the employer's
account is in good standing with the division and that the assets
may be sold or otherwise transferred without the attachment of the division's lien.
(e) As used in this article, the term "assets" means all
property of whatever type in which the employer has an interest
including, but not limited to, good will, business assets,
customers, clients, contracts, access to leases such as the right
to sublease, assignment of contracts for the sale of products,
operations, stock of goods or inventory, accounts receivable,
equipment or transfer of substantially all of its employees.
(f) The transfer of any assets of the employer shall be
presumed to be a transfer of all or substantially all of the
assets if the transfer affects the employer's capacity to do
business. The presumption can be overcome upon petition
presented and an administrative hearing in accordance with
section fifteen of this article and in consideration of the
factors thereunder.
(g) The foregoing provisions are expressly intended to
impose upon such successor employers the duty of obtaining from
the division or predecessor employer, prior to the date of such
acquisition, a valid "certificate of good standing to transfer a
business or business assets" to verify that the predecessor
employer's account with the division is in good standing.
§ 23-2-15. Liabilities of successor employer; waiver of payment
by division; assignment of predecessor employer's premium rate to successor.
(a) At any time prior to or following the acquisition
described in subsection (a), (b) or (c), section fourteen of this
article, the buyer or other recipient may file a certified
petition with the division requesting that the division waive the
payment by the buyer or other recipient of premiums, premium
deposits, interest and imposition of the modified rate of
premiums attributable to the predecessor employer or other
penalty, or any combination thereof. The division shall review
the petition by considering the seven factors set forth below:
(1) The exact nature of the default;
(2) The amount owed to the division;
(3) The solvency of the fund;
(4) The financial condition of the buyer or other recipient;
(5) The equities exhibited towards the fund by the buyer or
other recipient during the acquisition process;
(6) The potential economic impact upon the state and the
specific geographic area in which the buyer or other recipient is
to be or is located, if the acquisition were not to occur; and
(7) Whether the assets are purchased in an arms-length
transaction.
Unless requested by a party or by the division, no hearing
need be held on the petition. However, any decision made by the
division on the petition shall be in writing and shall include
appropriate findings of fact and conclusions of law. Such decision shall be effective ten days following notice to the
public of the decision unless an objection is filed in the manner
herein provided. Such notice shall be given by the division's
filing with the secretary of state, for publication in the state
register, of a notice of the decision. At the time of filing the
notice of its decision, the division shall also file with the
secretary of state a true copy of the decision. The publication
shall include a statement advising that any person objecting to
the decision must file, within ten days after publication of the
notice, a verified response with the division setting forth the
objection and the basis therefor. If any such objection is
filed, the division shall hold an administrative hearing,
conducted pursuant to article five, chapter twenty-nine-a of this
code, within fifteen days of receiving the response unless the
buyer or other recipient consents to a later hearing. Nothing in
this subsection shall be construed to be applicable to the seller
or other transferor or to affect in any way a proceeding under
sections five and five-a of this article.
(b) In the factual situations set forth in subsection (a),
(b) or (c), section fourteen of this article, if the
predecessor's modified rate of premium tax, as calculated in
accordance with section four of this article, is greater than the
manual rate of premium tax, as calculated in accordance with said
section, for other employers in the same class or group, then, if the new employer does not already have a modified rate of
premium, it shall also assume the predecessor employer's modified
rates for the payment of premiums as determined under sections
four and five of this article until sufficient time has elapsed
for the new employer's experience record to be combined with the
experience record of the predecessor employer so as to calculate
the new employer's own modified rate of premium tax.
As provided
for by subdivision (4), subsection (b), section fourteen of this
article, the new employer may avoid this assumption of the
predecessor's rate of premium tax if all liabilities of the
predecessor are paid prior to or at the time of the sale or other
transfer.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-4. Deposits and disbursements not considered as abandoned property; interest to be retained; notice, claims and
disposition of property.
(a) All disbursements from the workers' compensation fund
and
of the other funds created pursuant to this chapter
which
might otherwise be including the advance deposits by employers
where there has been no activity for a period of five years, are
presumed
to be abandoned and subject to the custody of the state
as unclaimed property under the provisions of article eight,
chapter thirty-six of this code,
shall be deposited by the state
treasurer to the credit of the workers' compensation fund or to such other affected fund The funds shall be kept in a separate
account by the state treasurer, apart from other unclaimed
property funds. Ninety days after the state treasurer has
advertised the accounts and paid any claims, he or she shall
remit the balance of those funds held in the account to the
credit of the workers' compensation fund or to other affected
funds. Such property shall become the property of and owned
absolutely by the workers' compensation fund.
(b) Notwithstanding any provision of law to the contrary,
all interest and other earnings accruing to the investments and
deposits of the workers' compensation fund and of the other funds
created pursuant to this chapter
shall be are credited only to
the account of the workers' compensation fund or to such other
affected fund.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§
23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions
of this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The expressions "average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury" and
"average weekly wage in West Virginia," as used in this chapter,
shall have the meaning and shall be computed as set forth in
section fourteen of this article except for the purpose of computing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(b) If the injury causes temporary total disability, the
employee shall receive during the continuance thereof a maximum
weekly benefit to be computed on the basis of seventy percent of
the average weekly wage earnings, wherever earned, of the injured
employee, at the date of injury, not to exceed one hundred
percent of the average weekly wage in West Virginia:
Provided,
That in the case of a claimant whose injury occurred prior to the
second day of February, one thousand nine hundred ninety-five,
the maximum benefit rate shall be the rate applied under the
prior enactment of this subsection which was in effect at the
time the injury occurred, and the rate shall not be affected by
the amendment and reenactment of this section during the regular
session of the Legislature in the year one thousand nine hundred
ninety-five. The minimum weekly benefits paid hereunder shall
not be less than thirty-three and one-third percent of the
average weekly wage in West Virginia, except as provided in
section six-d and section nine of this article. In no event,
however, shall such minimum weekly benefits exceed the level of
benefits determined by use of the then applicable federal minimum
hourly wage:
Provided, That any claimant receiving permanent
total disability benefits, permanent partial disability benefits or dependents' benefits prior to the first day of July, one
thousand nine hundred ninety-four, shall not have his or her
benefits reduced based upon the requirement herein that the
minimum weekly benefit shall not exceed the applicable federal
minimum hourly wage.
(c) Subdivision (b) of this section shall be limited as
follows: Aggregate award for a single injury causing temporary
disability shall be for a period not exceeding two hundred eight
weeks.
(d) For all awards of permanent total disability benefits
that are made on or after the second day of February, one
thousand nine hundred ninety-five, including those claims in
which a request for an award was pending before the division or
which were in litigation but not yet submitted for a decision,
then benefits shall be payable until the claimant attains the age
necessary to receive federal old age retirement benefits under
the provisions of the Social Security Act, 42 U.S.C. 401 and 402,
in effect on the effective date of this section. Such a claimant
shall be paid benefits so as not to exceed a maximum benefit of
sixty-six and two-thirds percent of the claimant's average weekly
wage earnings, wherever earned, at the time of the date of injury
not to exceed one hundred percent of the average weekly wage in
West Virginia. The minimum weekly benefits paid hereunder shall
be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total disability benefits
was made prior to the second day of February, one thousand nine
hundred ninety-five, such awards shall continue to be paid at the
rate in effect prior to the said date, subject to annual
adjustments for changes in the average weekly wage in West
Virginia:
Provided, That the provisions of sections one through
eight, article four-a of this chapter shall be applied thereafter
to all such prior awards that were previously subject to its
provisions. A single or aggregate permanent disability of
eighty-five percent or more shall entitle the employee to a
rebuttable presumption of a permanent total disability for the
purpose of paragraph (2), subdivision (n) of this section:
Provided, however, That the claimant must also be at least
fifty
forty percent medically impaired upon a whole body basis
or has
sustained a thirty-five percent statutory disability pursuant to
the provisions of subdivision (f) of this section. The
presumption may be rebutted if the evidence establishes that the
claimant is not permanently and totally disabled pursuant to
subdivision (n) of this section. Under no circumstances shall
the division grant an additional permanent disability award to a
claimant receiving a permanent total disability award:
Provided
further, That if any claimant thereafter sustains another
compensable injury and has permanent partial disability resulting
therefrom, the total permanent disability award benefit rate shall be computed at the highest benefit rate justified by any of
the compensable injuries, and the cost of any increase in the
permanent total disability benefit rate shall be paid from the
second injury reserve created by section one, article three of
this chapter.
(e)(1) For all awards made on or after the second day of
February, one thousand nine hundred ninety-five, if the injury
causes permanent disability less than permanent total disability,
the percentage of disability to total disability shall be
determined and the award computed on the basis of four weeks'
compensation for each percent of disability determined, at the
maximum or minimum benefit rates provided for in subdivision (d)
of this section:
Provided, That in the case of a claimant whose
injury occurred prior to the second day of February, one thousand
nine hundred ninety-five, the maximum benefit rate shall be the
rate applied under the prior enactment of this section which was
in effect at the time the injury occurred, and the rate shall not
be affected by the amendment and reenactment of this section
during the regular session of the Legislature in the year one
thousand nine hundred ninety-five.
(2) If a claimant is released by his or her treating
physician to return to work at the job he or she held before the
occupational injury occurred and if the claimant's preinjury
employer does not offer the preinjury job or a comparable job to the employee when such a position is available to be offered,
then the award for the percentage of partial disability shall be
computed on the basis of six weeks of compensation for each
percent of disability.
(3) The minimum weekly benefit under this subdivision shall
be as provided in subdivision (b) of this section for temporary
total disability.
(f) If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage of
disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a
two percent disability.
The loss of all toes shall be considered a twenty-five
percent disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index finger shall be considered a
thirty-two percent disability.
The loss of index and middle finger shall be considered a
twenty percent disability.
The loss of middle and ring finger shall be considered a
fifteen percent disability.
The loss of ring and little finger shall be considered a ten
percent disability.
The loss of thumb, index and middle finger shall be
considered a forty percent disability.
The loss of index, middle and ring finger shall be
considered a thirty percent disability.
The loss of middle, ring and little finger shall be
considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two
percent disability.
The loss of hand shall be considered a fifty percent
disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent disability.
The total and irrecoverable loss of the sight of one eye
shall be considered a thirty-three percent disability. For the
partial loss of vision in one, or both eyes, the percentages of
disability shall be determined by the division, using as a basis
the total loss of one eye.
The total and irrecoverable loss of the hearing of one ear
shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five-percent disability.
For the partial loss of hearing in one, or both ears, the
percentage of disability shall be determined by the division,
using as a basis the total loss of hearing in both ears.
Should a claimant sustain a compensable injury which results
in the total loss by severance of any of the bodily members named
in this subdivision, die from sickness or noncompensable injury
before the division makes the proper award for such injury, the
division shall make such award to claimant's dependents as
defined in this chapter, if any; such payment to be made in the
same installments that would have been paid to claimant if
living:
Provided, That no payment shall be made to any surviving
spouse of such claimant after his or her remarriage, and that
this liability shall not accrue to the estate of such claimant
and shall not be subject to any debts of, or charges against, such estate.
(g) Should a claimant to whom has been made a permanent
partial award die from sickness or noncompensable injury, the
unpaid balance of such award shall be paid to claimant's
dependents as defined in this chapter, if any; such payment to be
made in the same installments that would have been paid to
claimant if living:
Provided, That no payment shall be made to
any surviving spouse of such claimant after his or her
remarriage, and that this liability shall not accrue to the
estate of such claimant and shall not be subject to any debts of,
or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have the force and effect
of an award.
(i) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section
and in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the decree of disability shall be determined
exclusively by the provisions of said subdivision and said
section. The occupational pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions on
the degree of pulmonary function impairment that claimants suffer
solely upon whole body medical impairment. The workers'
compensation division shall adopt standards for the evaluation of
claimants and the determination of a claimant's degree of whole
body medical impairment. Once the degree of medical impairment
has been determined, that degree of impairment shall be the
degree of permanent partial disability that shall be awarded to
the claimant. This subdivision shall be applicable to all
injuries incurred and diseases with a date of last exposure on or
after the second day of February, one thousand nine hundred
ninety-five, to all applications for an award of permanent
partial disability made on and after such date, and to all
applications for an award of permanent partial disability that
were pending before the division or pending in litigation but not
yet submitted for decision on and after such date. The prior
provisions of this subdivision shall remain in effect for all
other claims.
(j) From a list of names of seven persons submitted to the
commissioner by the health care advisory panel, the commissioner
shall appoint an interdisciplinary examining board consisting of
five members to evaluate claimants, including by examination if
the board so elects. The board shall be composed of three
qualified physicians with specialties and expertise qualifying them to evaluate medical impairment and two vocational
rehabilitation specialists who are qualified to evaluate the
ability of a claimant to perform gainful employment with or
without retraining. One member of the board shall be designated
annually as chairperson by the commissioner. The term of office
of each member of the board shall be six years and until his or
her successor has been appointed and has qualified:
Provided,
That two of the persons initially appointed shall serve a term of
six years, two of the remaining persons shall serve a term of
four years and the remaining member shall serve a term of two
years. Any member of the board may be appointed to any number of
terms. Any two physician members and one vocational
rehabilitation specialist member shall constitute a quorum for
the transaction of business. The commissioner, from time to
time, shall fix the
per diem salary, computed on the basis of
actual time devoted to the discharge of their duties,
compensation to be paid to each member of the board, and the
members shall also be entitled to reasonable and necessary
traveling and other expenses incurred while actually engaged in
the performance of their duties.
The board shall perform the
duties and responsibilities assigned to it by this code
consistent with the administrative policies developed by the
commissioner with the assistance of the compensation programs
performance council.
(1) Prior to the referral of any issue to the
interdisciplinary examining board, the division shall conduct
such examinations of the claimant as it finds necessary and
obtain all pertinent records concerning the claimant's medical
history and reports of examinations and forward them to the board
at the time of the referral. The division shall provide adequate
notice to the employer of the filing of the request for a
permanent total disability award and the employer shall be
granted an appropriate period in which to respond to the request.
The claimant and the employer may furnish all pertinent
information to the board and shall furnish to the board any
information requested by the board. The claimant and the
employer may each submit no more than one report and opinion
regarding each issue present in a given claim. The employer
shall be entitled to have the claimant examined by medical
specialists and vocational rehabilitation specialists:
Provided,
That the employer is entitled to only one such examination on
each issue present in a given claim. Any additional examinations
must be approved by the division and shall be granted only upon
a showing of good cause. The reports from all employer-conducted
examinations must be filed with the board and served upon the
claimant. The board may request that those persons who have
furnished reports and opinions regarding a claimant provide it
with such additional information as the board may deem necessary. Both the claimant and the employer, as well as the division, may
submit reports from experts challenging or supporting the other
reports in the record regardless of whether or not such an expert
examined the claimant or relied solely upon the evidence of
record.
(2) If the board or a quorum thereof elects to examine a
claimant, the individual members shall conduct such examinations
as are pertinent to each of their specialties. If a claim
presents an issue beyond the expertise of the board, the board
may obtain advice or evaluations by other specialists. In
addition, if the compensation programs performance council
determines that the number of applications pending before the
board has exceeded the level at which the board can review and
make recommendations within a reasonable time, then the council
may authorize the commissioner to appoint such additional members
to the board as may be necessary to reduce the backlog of
applications. Such additional members shall be recommended by
the health care advisory panel and the commissioner may make such
appointments as he or she chooses from the recommendations. The
additional board members shall not serve a set term but shall
serve until the council determines that the number of pending
applications has been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters
related to the determination of permanent total disability under the provisions of subdivision (n) of this section and to
questions related to medical cost containment, utilization review
decisions and managed care decisions arising under section three
of this article.
(4) In the event the board members elect to examine a
claimant, the board shall prepare a report stating the tests,
examinations, procedures and other observations that were made,
the manner in which each was conducted, and the results of each.
The report shall state the findings made by the board and the
reasons therefor. Copies of the reports of all such examinations
shall be served upon the parties and the division and each shall
be given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board shall state its initial recommendations to the
division in writing with an explanation for each such
recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the division
and each shall be afforded a thirty-day opportunity to respond in
writing to the board regarding the board's recommendations. The
board shall then review any such responses and issue its final
recommendations. The final recommendations shall then be
effectuated by the entry of an appropriate order by the division.
(6) Except as noted below, objections pursuant to section
one, article five of this chapter to any such order shall be limited in scope to matters within the record developed before
the workers' compensation division and the board and shall
further be limited to the issue of whether the board properly
applied the standards for determining medical impairment, if
applicable, and the issue of whether the board's findings are
clearly wrong in view of the reliable, probative and substantial
evidence on the whole record. Should either party contend that
the claimant's condition has changed significantly since the
review conducted by the board, the party may file a motion with
the administrative law judge, together with a report supporting
that assertion. Upon the filing of such motion, the
administrative law judge shall cause a copy of the report to be
sent to the examining board asking, the board to review the
report and provide such comments as the board chooses within
sixty days of the board's receipt of the report. The board may
then either supply such comments or, at the board's discretion,
request that the claim be remanded to the board for further
review by the board. If remanded, the claimant is not required
to submit to further examination by the employer's medical
specialists or vocational rehabilitation specialists. Following
any such remand, the board shall file its recommendations with
the administrative law judge for his or her review. If the board
elects to respond with comments, such comments shall be filed
with the administrative law judge for his or her review. Following the receipt of either the board's recommendations or
comment, the administrative law judge shall then issue a written
decision ruling upon the asserted change in the claimant's
condition. No additional evidence may be introduced during the
review of the objection before the office of judges or elsewhere
on appeal:
Provided, That each party and the division may submit
one written opinion on each issue pertinent to a given claim
based upon a review of the evidence of record either challenging
or defending the board's findings and conclusions. Thereafter,
based upon the evidence then of record, the administrative law
judge shall issue a written decision containing his or her
findings of fact and conclusions of law regarding each issue
involved in the objection.
(k) Compensation payable under any subdivision of this
section shall not exceed the maximum nor be less than the weekly
benefits specified in subdivision (b) of this section.
(1) Except as otherwise specifically provided in this
chapter, temporary total disability benefits payable under
subdivision (b) of this section shall not be deductible from
permanent partial disability awards payable under subdivision (e)
or (f) of this section. Compensation, either temporary total or
permanent partial, under this section shall be payable only to
the injured employee and the right thereto shall not vest in his
or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his
or her death, if he or she had lived, shall be paid to the
dependents of such injured employee if there be such dependents
at the time of death.
(m) The following permanent disabilities shall be
conclusively presumed to be total in character:
Loss of both eyes or the sight thereof;
Loss of both hands or the use thereof;
Loss of both feet or the use thereof; and
Loss of one hand and one foot or the use thereof.
(n)(1) Other than for those injuries specified in
subdivision (m) of this section, in order to be eligible to apply
for an award of permanent total disability benefits for all
injuries incurred and all diseases, including occupational
pneumoconiosis, with a date of last exposure on and after the
second day of February, one thousand nine hundred ninety-five,
and for all requests for such an award pending before the
division on and after the second day of February, one thousand
nine hundred ninety-five, a claimant must have been awarded the
sum of
fifty forty percent in prior permanent partial disability
awards,
or have suffered an occupational injury or disease which
results in a finding that the claimant has suffered a medical
impairment of
fifty forty percent
or has sustained a thirty-five
percent statutory disability pursuant to the provisions of subdivision (f) of this section. Upon filing such an
application, the claim will be reevaluated by the examining board
pursuant to subdivision (j) of this section to determine if he or
she has suffered a whole body medical impairment of
fifty forty
percent or more resulting from either a single occupational
injury or occupational disease or a combination of occupational
injuries and occupational diseases
or has sustained a
thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section. A claimant whose
prior permanent partial disability awards total eighty-five
percent or more shall also be examined by the board and must be
found to have suffered a whole body medical impairment of
fifty
forty percent in order for his or her request to be eligible for
further review. The examining board shall review the claim as
provided for in subdivision (j) of this section. If the claimant
has not suffered whole body medical impairment of at least
fifty
forty percent
or has sustained a thirty-five percent statutory
disability pursuant to the provisions of subdivision (f) of this
section, then the request shall be denied. Upon a finding that
the claimant does have a
fifty forty percent whole body medical
impairment
or has sustained a thirty-five percent statutory
disability pursuant to the provisions of subdivision (f) of this
section, then the review of the application shall continue as
provided for in the following paragraph of this subdivision. Those claimants whose prior permanent partial disability awards
total eighty-five percent or more and who have been found to have
a whole body medical impairment of at least
fifty forty percent
or have sustained a thirty-five percent statutory disability
pursuant to the provisions of subdivision (f) of this section
shall then be entitled to the rebuttable presumption created
pursuant to subdivision (d) for the remaining issues in the
request. For the purposes of determining whether the claimant
should be awarded permanent total disability benefits under the
second injury provisions of subsection (d), section one, article
three of this chapter, only a combination of occupational
injuries and occupational diseases, including occupational
pneumoconiosis, shall be considered.
(2) A disability which renders the injured employee unable
to engage in substantial gainful activity requiring skills or
abilities comparable to those of any gainful activity in which he
or she has previously engaged with some regularity and over a
substantial period of time shall be considered in determining the
issue of total disability. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three,
chapter twenty-one-a of this code shall be considered once they
are effective.
(3) In the event that a claimant, who has been found to have
at least a
fifty forty percent whole body medical impairment
or has sustained a thirty-five percent statutory disability pursuant
to the provisions of subdivision (f) of this section, is denied
an award of permanent total disability benefits pursuant to this
subdivision and then accepts and continues to work at a lesser
paying job than he or she previously held, then such a claimant
shall be eligible, notwithstanding the provisions of section nine
of this article, to receive temporary partial rehabilitation
benefits for a period of four years. Such benefits shall be paid
at the level necessary to ensure the claimant's receipt of the
following percentages of the average weekly wage earnings of the
claimant at the time of injury calculated as provided in this
section and sections six-d and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year:
Provided, That in no event shall such benefits exceed one hundred
percent of the average weekly wage in West Virginia. In no event
shall such benefits be subject to the minimum benefit amounts
required by the provisions of subdivision (b) of this section.
(4) It is the intent of the Legislature to make the
application of this subdivision retroactive for all injuries
incurred and all occupational diseases, including occupational
pneumoconiosis, with a date of last exposure on and after the second day of February, one thousand nine hundred ninety-five,
and for all requests for such an award pending before the
division on and after the second day of February, one thousand
nine hundred ninety-five:
Provided, That if a claimant's
application for permanent total disability benefits was rejected
either: (1) Because of a finding that the claimant was not
awarded the sum of fifty percent in prior permanent partial
disability awards; or (2) did not suffer an occupational injury
or occupational disease which resulted in a finding that the
claimant has suffered a medical impairment of fifty percent; or
(3) was rejected by the examining board for the reason that the
claimant did not suffer whole body medical impairment of at least
fifty percent, then such claimant may, during the period
beginning on the first day of July, one thousand nine hundred
ninety-nine, and ending on the thirtieth day of September, one
thousand nine hundred ninety-nine, file with the division a
petition for reconsideration of the denial of permanent total
disability benefits. After review of the petition by the
division and the examining board, the division shall enter an
appropriate order deciding the claimant's petition for
reconsideration.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist workers to return to suitable gainful employment after an injury. In order to
encourage workers to return to employment and to encourage and
assist employers in providing suitable employment to injured
employees, it shall be a priority of the commissioner to achieve
early identification of individuals likely to need rehabilitation
services and to assess the rehabilitation needs of these injured
employees. It shall be the goal of rehabilitation to return
injured workers to employment which shall be comparable in work
and pay to that which the individual performed prior to the
injury. If a return to comparable work is not possible, the goal
of rehabilitation shall be to return the individual to
alternative suitable employment, using all possible alternatives
of job modification, restructuring, reassignment and training, so
that the individual will return to productivity with his or her
employer or, if necessary, with another employer. The
Legislature further finds that it is the shared responsibility of
the employer, the employee, the physician and the commissioner to
cooperate in the development of a rehabilitation process designed
to promote reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in
temporary disability in excess of one hundred twenty days, and
such fact has been determined by the commissioner, the
commissioner shall at the earliest possible time determine whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitation
services and if the commissioner determines that the employee can
be physically and vocationally rehabilitated and returned to
remunerative employment by the provision of rehabilitation
services including, but not limited to, vocational or on-the-job
training, counseling, assistance in obtaining appropriate
temporary or permanent work site, work duties or work hours
modification, by the provision of crutches, artificial limbs, or
other approved mechanical appliances, or medicines, medical,
surgical, dental or hospital treatment, the commissioner shall
forthwith develop a rehabilitation plan for the employee and,
after due notice to the employer, expend such an amount as may be
necessary for the aforesaid purposes:
Provided, That such
expenditure for vocational rehabilitation shall not exceed ten
thousand dollars for any one injured employee:
Provided,
however, That no payment shall be made for such vocational
rehabilitation purposes as provided in this section unless
authorized by the commissioner prior to the rendering of such
physical or vocational rehabilitation, except that payments shall
be made for reasonable medical expenses without prior
authorization if sufficient evidence exists which would relate
the treatment to the injury and the attending physician or
physicians have requested authorization prior to the rendering of such treatment:
Provided further, That payment for physical
rehabilitation, including the purchase of prosthetic devices and
other equipment and training in use of such devices and
equipment, shall be considered expenses within the meaning of
section three of this article and shall be subject to the
provisions of sections three, three-a, three-b and three-c of
this article. The provision of any rehabilitation services shall
be pursuant to a rehabilitation plan to be developed and
monitored by a rehabilitation professional for each injured
employee.
(c) In every case in which the commissioner shall order
physical or vocational rehabilitation of a claimant as provided
herein, the claimant shall, during the time he or she is
receiving any vocational rehabilitation or rehabilitative
treatment that renders him or her totally disabled during the
period thereof, be compensated on a temporary total disability
basis for such period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's
average weekly wage earnings are less than the average weekly
wage earnings earned by the injured employee at the time of the
injury, he or she shall receive temporary partial rehabilitation
benefits calculated as follows: The temporary partial
rehabilitation benefit shall be seventy percent of the difference between the average weekly wage earnings earned at the time of
the injury and the average weekly wage earnings earned at the new
employment, both to be calculated as provided in sections six,
six-d and fourteen of this article as such calculation is
performed for temporary total disability benefits, subject to the
following limitations: In no event shall such benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b), section six of this article, nor shall such
benefits exceed the temporary total disability benefits to which
the injured employee would be entitled pursuant to sections six,
six-d and fourteen of this article during any period of temporary
total disability resulting from the injury in the claim:
Provided, That no temporary total disability benefits shall be
paid for any period for which temporary partial rehabilitation
benefits are paid. The amount of temporary partial
rehabilitation benefits payable under this subsection shall be
reviewed every ninety days to determine whether the injured
employee's average weekly wage in the new employment has changed
and, if such change has occurred, the amount of benefits payable
hereunder shall be adjusted prospectively. Temporary partial
rehabilitation benefits shall only be payable when the injured
employee is receiving vocational rehabilitation services in
accordance with a rehabilitation plan developed under this
section.
(e) The commissioner shall promulgate rules for the purpose
of developing a comprehensive rehabilitation program which will
assist injured workers to return to suitable gainful employment
after an injury in a manner consistent with the provisions and
findings of this section. Such rules shall provide definitions
for rehabilitation facilities and rehabilitation services
pursuant to this section.
(f)
The provisions of this section shall be terminated and
be of no further force or effect on the first day of July, one
thousand nine hundred ninety-eight It is the intent of the
Legislature to restore the provisions of this section, which
terminated on the first day of July, one thousand nine hundred
ninety-eight, for all injured employees who sustained injuries on
or after the first day of July, one thousand nine hundred
ninety-eight.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his or her
employment, causes death, and disability is continuous from date
of such injury until date of death, or if death results from
occupational pneumoconiosis or from any other occupational
disease, the benefits shall be in the amounts and to the persons
as follows:
(a) If there be no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of
this article;
(b) If there be dependents as defined in subdivision (d) of
this section, such dependents shall be paid for as long as their
dependency shall continue in the same amount as was paid or would
have been paid the deceased employee for total disability had he
or she lived. The order of preference of payment and length of
dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage
of such widow or widower, and any child or children dependent
upon the decedent until each such child shall reach eighteen
years of age or where such child after reaching eighteen years of
age continues as a full-time student in an accredited high
school, college, university, business or trade school, until such
child reaches the age of twenty-five years or if an invalid child
to continue as long as such child remains an invalid. All such
persons shall be jointly entitled to the amount of benefits
payable as a result of employee's death;
(2) A wholly dependent father or mother until death;
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee;
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of death, the payment shall be fifty dollars a month, to continue
for such portion of the period of six years after the death, as
the division may determine, but no such partially dependent
person shall receive compensation payments as a result of the
death of more than one employee.
Compensation under subdivisions (b) and (c) hereof shall,
except as may be specifically provided to the contrary therein,
cease upon the death of the dependent, and the right thereto
shall not vest in his or her estate.
(d) "Dependent", as used in this chapter, shall mean a
widow, widower, child under eighteen years of age, or under
twenty-five years of age when a full-time student as provided
herein, invalid child or posthumous child, who, at the time of
the injury causing death, is dependent, in whole or part, for his
or her support upon the earnings of the employee, stepchild under
eighteen years of age, or under twenty-five years of age when a
full-time student as provided herein, child under eighteen years
of age legally adopted prior to the injury causing death, or
under twenty-five years of age when a full-time student as
provided herein, father, mother, grandfather or grandmother, who
at the time of the injury causing death, is dependent, in whole
or in part, for his or her support upon the earnings of the
employee; and invalid brother or sister wholly dependent for his
or her support upon the earnings of the employee at the time of the injury causing death.
(e)
(1) If a person receiving permanent total disability
benefits
which were awarded prior to the second day of February,
one thousand nine hundred ninety-five, dies from a cause other
than a disabling injury leaving any dependents as defined in
subdivision (d) of this section,
a lump sum payment an award
shall be made to such dependents in an amount equal to one
hundred four times the weekly benefit the worker was receiving at
the time of his or her death.
Direct premium rating experience
charges for the payment of such benefits granted as a result of
a second injury award of permanent total disability shall not be
made to the employee's employer. It is the intent of the
Legislature to make dependents eligible for benefits under this
subsection retroactive to the second day of February, one
thousand nine hundred ninety-five. The award shall be paid to
the dependents in the same interval at which the decedent had
been receiving benefits prior to his or her death.
(2) On and after the second day of February, one thousand
nine hundred ninety-five, when an award of permanent total
disability benefits is made, a claimant shall make a one-time
election of whether to receive the full amount of payments for
the award or to receive a reduced payment in order to provide an
annuity payment to his or her dependents. The sum of twenty
thousand dollars shall be the initial amount of the annuity. Thereafter, the compensation programs performance council shall
review the annuity amount at least every three years. The
council shall also from time to time determine the amount of the
reduction in benefits that will be used to contribute towards the
full amount necessary to purchase the annuity. The council may,
from time to time as it deems appropriate, fix an amount which
the fund will contribute toward the purchase of annuities. The
commissioner and the council are authorized to either fund such
annuities through the investments of the workers' compensation
fund or through the use of a private provider of annuities. The
selection of such a private provider of annuities shall be
through competitive bids. If at the time of the claimant's death
he or she has no dependents, then the proceeds of the annuity
shall remain with the fund. Should such a claimant's entitlement
to receive the permanent total disability award terminate due to
his or her attaining the necessary retirement age provided for by
subdivision (d), section six of this article or for any other
reason other than the death of the claimant, then the annuity
shall be canceled and the proceeds thereof shall remain with the
fund.
ARTICLE 5. REVIEW.
§23-5-7. Compromise and settlement.
With the exception of medical benefits, the claimant,
and
the employer
with the consent and approval of and the workers' compensation division, may negotiate a final settlement of any
and all issues in a claim wherever the claim may then be in the
review or appellate processes.
The Upon entering into an
agreement, the parties
seeking to settle and compromise an
objection to a division decision shall file the written and
executed agreement with the
division office of judges. The
division office of judges shall review the proposed agreement to
determine if it is fair and reasonable to the parties and shall
ensure that each of the parties are fully aware of the effects of
the agreement including what each party is
giving up conceding in
exchange for the agreement. If the
division office of judges
concludes that the agreement is not fair or is not reasonable or
that one of the parties is not fully informed, then the
division
shall reject the agreement
will not be approved, which decision
shall not be reviewable. If the employer is not active in the
claim, then the division may negotiate a final settlement of any
and all issues in a claim except for medical benefits with the
claimant.
Provided, That the agreement must then be submitted to
the office of judges whereupon an administrative law judge shall
undertake the review and make the assurances provided for above
as in the case of an employer and claimant agreement. Upon the
approval of either type of agreement, the agreement shall be
filed with the division's records, and the filing constitutes a
dismissal of any objection or appeal on the issues agreed to. The division will give notice of the settlement and dismissal, if
necessary, to the office of judges, Upon approval of the
settlement, it shall be made a part of the claim record and the
office of judges shall send written
notice of the settlement to
all parties and, where appropriate, to the appeal board or the
supreme court of appeals. Once any such agreement is accepted by
the parties and the division, any Except in cases of fraud, no
issue that is the subject of the an approved settlement agreement
shall not may be reopened by either party or by the division.
Any such settlement agreement may provide for a lump sum payment
which shall not exceed a percentage of the entire settlement to
be determined from time to time by the compensation programs
performance council in keeping with the necessity to protect the
claimant, the employer, and the solvency of the workers'
compensation fund. The remainder of any such settlement shall be
paid out over time as would have been the case had an award been
made. If a settlement provides for future rehabilitation costs
and a degree of permanent partial disability, then the agreed
upon degree of permanent partial disability shall be stated in
the agreement. That degree of permanent partial disability shall
then be entered upon the records of the division as the award in
the claim. In the event that an employer agrees to settle an
issue which settlement is to be paid directly by the employer,
then the amount so paid or to be paid shall be a portion of the employer's premium tax as that term is used in article two of
this chapter or a structured payment plan, or any combination
thereof, or such other basis as the parties may agree. If such
self-insured employer later fails to make the agreed upon
payment, the division shall assume the obligation to make the
payments and shall be entitled to recover the amounts paid or to
be paid from the self-insured employer and its sureties or
guarantors or both as provided for in sections five and five-a,
article two of this chapter.
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 such effective date.
§23-5-9. Hearings on objections to division decisions by office
of judges.
(a) Objections to a workers' compensation division decision
made pursuant to the provisions of section one of this article
shall be filed with the office of judges. Upon receipt of an
objection, the office of judges shall within fifteen days from
receipt thereof, set a time and place for the hearing of evidence
and shall notify the division and all other parties of the filing
of the objection. Hearings may be conducted at the county seat
of the county wherein the injury occurred, or at any other place
which may be agreed upon by the interested parties, and in the event the interested parties cannot agree, and it appears in the
opinion of the chief administrative law judge or the chief
administrative law judge's authorized representative that the
ends of justice require the taking of evidence elsewhere, then at
such place as the chief administrative law judge or such
authorized representative may direct, having due regard for the
convenience of witnesses. The office of judges shall establish
by rule promulgated in accordance with the provisions of
subsection (e), section eight of this article an adjudicatory
process that enables parties to present evidence in support of
their positions and provides an expeditious resolution of the
objection. The employer, the claimant and the division shall be
notified of such any hearing at least ten days in advance. and
the hearing shall be held within thirty days after the filing of
the objection unless such hearing be postponed by agreement of
the parties or by the chief administrative law judge or such
authorized representative for good cause. The division shall be
a party to any proceeding under this article
(b) The office of judges shall keep full and complete
records of all proceedings concerning a disputed claim. All
testimony upon a disputed claim shall be recorded but need not be
transcribed unless the claim is appealed or in such other
circumstances as, in the opinion of the chief administrative law
judge, may require such transcription. Upon receipt of notice of the filing of an objection, the division shall forthwith forward
to the chief administrative law judge all records or copies of
such records which relate to the matter objected to. All such
records or copies thereof and any evidence taken at hearings
conducted by the office of judges shall constitute the record
upon which the matter shall be decided. The office of judges
shall not be bound by the usual common law or statutory rules of
evidence. At any time within thirty days after hearing, if the
chief administrative law judge or the chief administrative law
judge's authorized representative is of the opinion that the
facts have not been adequately developed at such hearing, he or
she may order supplemental hearings or obtain such additional
evidence as he or she deems warranted upon due notice to the
parties Subject to the rules of practice and procedure
promulgated pursuant to section eight of this article, the record
upon which the matter shall be decided shall include any evidence
submitted by a party to the office of judges, evidence taken at
hearings conducted by the office of judges and any documents in
the division's claim files which relate to the matter objected
to. The record may include evidence or documents submitted in
electronic form or other appropriate medium in accordance with
the rules of practice and procedure referred to herein. The
office of judges shall not be bound by the usual common law or
statutory rules of evidence.
(c) All hearings shall be conducted as determined by the
chief administrative law judge pursuant to the rules of practice
and procedure promulgated pursuant to section eight of this
article. Upon consideration of the entire record, the chief
administrative law judge or an administrative law judge other
authorized adjudicator within the office of judges shall within
thirty days after final hearing, render a decision affirming,
reversing or modifying the division's action. Said decision
shall contain findings of fact and conclusions of law and shall
be mailed to all interested parties.
(d) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of July, one
thousand nine hundred ninety-nine. Until the rule is finally
promulgated, the prior provisions of this section as found in
chapter two hundred fifty-three of the acts of the Legislature,
one thousand nine hundred ninety-five shall remain in effect.
ARTICLE 6. SEVERABILITY.
§23-6-1. Severability; concomitant adjustments.
(a) If any provision of this chapter or the application
thereof to any person or circumstance is held unconstitutional or
invalid, such unconstitutionality or invalidity shall not affect
other provisions or applications of the chapter, and to this end
the provisions of this chapter are declared to be severable.
(b) It is the intent of the Legislature that the purpose of the changes contained in this article passed during its regular
session in the year one thousand nine hundred ninety-nine, be
construed so that any benefit adjustments and premium tax
adjustments resulting therefrom become concomitantly effective on
the first day of July, one thousand nine hundred ninety-nine.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-24e. Omission to subscribe to the workers' compensation fund; failure to file a premium tax report or pay premium taxes; false testimony or statements; failure to file reports; penalties; asset
forfeiture; venue.
(1) Failure to subscribe:
(A) Responsible person. Any person who individually or as
owner, partner, president, other officer, or manager of a sole
proprietorship, firm, partnership, company, corporation or
association, who, as a person who is responsible for and who is
required by specific assignment, duty or legal duty, which is
either expressed or inherent in laws which require the employer's
principals to be informed and to know the facts and laws
affecting the business organization and to make internal policy
and decisions which ensure that the individual and organization
comply with the general laws and provisions of chapter
twenty-three of this code, knowingly and willfully fails to subscribe to the workers' compensation fund shall be guilty of a
felony and, upon conviction, shall be imprisoned in the
penitentiary not less than one nor more than ten years, or in the
discretion of the court, be confined in jail not more than one
year and shall be fined not more than two thousand five hundred
dollars.
(B) Any corporation, association or partnership who, as an
employer as defined in chapter twenty-three of this code,
knowingly and willfully fails to subscribe to the workers'
compensation fund shall be guilty of a felony and, upon
conviction, shall be fined not less than two thousand five
hundred dollars nor more than ten thousand dollars.
(2) Failure to pay:
(A) Any person who individually or as owner, partner,
president, other officer or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a person who, as a responsible person as defined in section
twenty-four-e of this article, knowingly and willfully fails to
make premium tax payments to the workers' compensation fund as
required by chapter twenty-three this code, shall be guilty of
the larceny of the premium owed and, if the amount is one
thousand dollars or more, such person shall be guilty of a felony
and, upon conviction thereof, shall be imprisoned in the
penitentiary not less than one nor more than ten years or, in the discretion of the court, be confined in jail not more than one
year and shall be fined not more than two thousand five hundred
dollars. If the amount is less than one thousand dollars, such
person shall be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for a term not to exceed one
year or fined an amount not to exceed two thousand five hundred
dollars, or both, in the discretion of the court.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to make premium tax payments
to the workers' compensation fund as required by chapter
twenty-three of this code shall be guilty of the larceny of the
premium owed, and, if the amount is one thousand dollars or more,
such corporation, association, company or partnership shall be
guilty of a felony and, upon conviction thereof, shall be fined
not less than two thousand five hundred dollars nor more than ten
thousand dollars. If the amount is less than one thousand
dollars, such corporation, association, company or partnership
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined an amount not to exceed two thousand five hundred
dollars.
(C) Any person who individually or as owner, partner,
president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as a responsible person, as defined in section twenty-four-e of this
article, knowingly and willfully and with fraudulent intent
sells, transfers or otherwise disposes of substantially all of
the employer's assets for the purpose of evading the payment of
workers' compensation premium taxes to the workers' compensation
fund as required by chapter twenty-three of this code, shall be
guilty of the larceny of the premium owed and, if the amount is
one thousand dollars or more, such person shall be guilty of a
felony and, upon conviction thereof, shall be imprisoned in the
penitentiary not less than one nor more than ten years or, in the
discretion of the court, be confined in jail not more than one
year and shall be fined not more than two thousand five hundred
dollars. If the amount is less than one thousand dollars, such
person shall be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for a term not to exceed one
year or fined an amount not to exceed two thousand five hundred
dollars, or both, in the discretion of the court.
(D) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully and with fraudulent intent sells,
transfers or otherwise disposes of substantially all of the
employer's assets for the purpose of evading the payment of
workers' compensation premium taxes to the workers' compensation
fund as required by chapter twenty-three of this code shall be guilty of the larceny of the premium owed and, if the amount is
one thousand dollars or more, such corporation, association,
company or partnership shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than two thousand
five hundred dollars nor more than ten thousand dollars. If the
amount is less than one thousand dollars, such corporation,
association, company or partnership shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed two thousand five hundred dollars.
(3) Failure to file premium tax reports:
(A) Any person who individually or as owner, partner,
president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person as defined in section twenty-four-e of this
article, knowingly and willfully fails to file a premium tax
report with the workers' compensation fund as required by chapter
twenty-three of this code, shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned in the penitentiary not
less than one nor more than ten years, or in the discretion of
the court, be confined in jail for a term not to exceed one year
and shall be fined not more than two thousand five hundred
dollars.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this code, knowingly and willfully fails to file a premium tax report
with the workers' compensation fund as required by chapter
twenty-three of this code, shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than two thousand
five hundred dollars nor more than ten thousand dollars.
(4) Failure to file other reports:
(A) Any person, individually or as owner, partner, president
or other officer, or manager of a sole proprietorship, firm,
partnership, company, corporation or association who, as a
responsible person as defined in section twenty-four-e of this
article, knowingly and willfully fails to file any report, other
than a premium tax report, required by such chapter shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for a term not to exceed one year or fined an
amount not to exceed two thousand five hundred dollars, or both,
in the discretion of the court.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to file any report, other
than a premium tax report, with the workers' compensation fund as
required by chapter twenty-three of this code, shall be guilty of
a misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed two thousand five hundred dollars.
(5) False testimony or statements:
Any person, individually or as owner, partner, president,
other officer, or manager of a sole proprietorship, firm,
partnership, company, corporation or association who, as a
responsible person as defined in section twenty-four-e of this
article, knowingly and willfully makes a false report or
statement under oath, affidavit, certification or by any other
means respecting any information required to be provided under
chapter twenty-three of this code shall be guilty of a felony
and, upon conviction thereof, shall be confined in the
penitentiary for a definite term of imprisonment which is not
less than one year nor more than three years or fined not less
than one thousand dollars nor more than ten thousand dollars, or
both, in the discretion of the court.
(6) Asset forfeiture:
(A) The court, in imposing sentence on a person or entity
convicted of an offense under this section, shall order the
person or entity to forfeit property, real or personal, that
constitutes or is derived, directly or indirectly, from gross
proceeds traceable to the commission of the offense. Any person
or entity convicted under this section shall pay the costs of
asset forfeiture.
(B) For purposes of subdivision (A), subsection (6) above,
the term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain, inventory, safeguard, maintain, advertise, sell or dispose of
property under seizure, detention, or forfeiture or of any other
necessary expenses incident to the seizure, detention, forfeiture
or disposal of such property, including payment for:
(a) Contract services;
(b) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary
to dispose of such properties in an effort to maximize the return
from such properties; and
(c) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph.
(ii)The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the
discretion of the workers' compensation fund to determine the
validity of any such lien or mortgage and the amount of payment
to be made, and the employment of attorneys and other personnel
skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on
forfeited real property that accrued between the date of the
violation giving rise to the forfeiture and the date of the
forfeiture order.
(7) Venue:
Venue for prosecution of any violation of this section shall
be either the county in which the defendant's principal business
operations are located or in Kanawha County where the workers'
compensation fund is located.
§61-3-24f. Wrongfully seeking workers' compensation; false
testimony or statements; penalties; venue.
(1) Any person who shall knowingly and with fraudulent
intent secure or attempt to secure compensation from the workers'
compensation fund or from a self-insured employer:
(A) That is larger in amount than that to which he or she is
entitled; or
(B) That is longer in term than that to which he or she is
entitled; or
(C) To which he or she is not entitled, shall be guilty of
a larceny and, if the amount is one thousand dollars or more,
such person shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in the penitentiary not less than
one nor more than ten years or, in the discretion of the court,
be confined in jail not more than one year and shall be fined not
more than two thousand five hundred dollars. If the amount is
less than one thousand dollars, such person shall be guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
jail for a term not to exceed one year or fined an amount not to exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(2) Any person who shall knowingly and willfully make a
false report or statement under oath, affidavit, certification or
by any other means respecting any information required to be
provided under chapter twenty-three of this code shall be guilty
of a felony and, upon conviction thereof, shall be confined in
the penitentiary for a definite term of imprisonment which is not
less than one year nor more than three years or fined not less
than one thousand dollars nor more than ten thousand dollars, or
both, in the discretion of the court.
(3) In addition to any other penalty imposed, the court
shall order any person convicted under this section to make full
restitution of all moneys paid by the workers' compensation fund
or self-insured employer as the result of a violation of this
section.
(4) If the person so convicted is receiving compensation
from such fund or employer, he or she shall, from and after such
conviction, cease to receive such compensation as a result of
that alleged injury or disease.
(5) Venue for prosecution of any violation of this section
shall either be the county in which the claimant resides, the
county in which the claimant is employed or working, or in
Kanawha County where the workers' compensation fund is located.
§61-3-24g. Workers' compensation health care offenses; fraud;
theft or embezzlement; false statements; penalties;
notice; prohibition against providing future services; penalties; asset forfeiture; venue.
(1) Any person who knowingly and willfully executes, or
attempts to execute, a scheme or artifice:
(A) To defraud the workers' compensation fund or a
self-insured employer in connection with the delivery of or
payment for workers' compensation health care benefits, items or
services; or
(B) To obtain, by means of false or fraudulent pretenses,
representations, or promises any of the money or property owned
by or under the custody or control of the workers' compensation
fund or a self-insured employer in connection with the delivery
of or payment for workers' compensation health care benefits,
items or services; or
(C) To make any charge or charges against any injured
employee or any other person, firm or corporation which would
result in a total charge for the treatment or service rendered in
excess of the maximum amount set forth therefore in the workers'
compensation division's schedule of maximum reasonable amounts to
be paid for such treatment or services issued pursuant to
subsection (a), section three, article four of chapter
twenty-three of the West Virginia code shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the
penitentiary not less than one nor more than ten years or, in the
discretion of the court, be confined in jail not more than one
year and shall be fined not more than two thousand five hundred
dollars.
(2) Any person who, in any matter involving a health care
program related to the workers' compensation fund, knowingly and
willfully:
(A) Falsifies, conceals, or covers up by any trick, scheme
or device a material fact; or
(B) Makes any materially false, fictitious, or fraudulent
statement or representation, or makes or uses any materially
false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry,
shall be guilty of a felony and, upon conviction thereof, shall
be confined in the penitentiary for a definite term of
imprisonment which is not less than one year nor more than three
years or fined not less than one thousand dollars nor more than
ten thousand dollars, or both, in the discretion of the court.
(3) Any person who willfully embezzles, steals, or otherwise
unlawfully converts to the use of any person other than the
rightful owner, or intentionally misapplies any of the moneys,
funds, securities, premiums, credits, property or other assets of
a health care program related to the workers' compensation fund, shall be guilty of a felony and, upon conviction thereof, shall
be imprisoned in the penitentiary for not less than one nor more
than ten years or fined not less than ten thousand dollars, or
both, in the discretion of the court.
(4) Any health care provider who fails, in violation of
subsection (5), section twenty-four-g of this article to post a
notice, in the form required by the workers' compensation
division, in the provider's public waiting area that the provider
cannot accept any patient whose treatment or other services or
supplies would ordinarily be paid for from the workers'
compensation fund or by a self-insured employer unless such
patient consents, in writing, prior to the provision of such
treatment or other services or supplies, to make payment for that
treatment or other services or supplies himself or herself, shall
be guilty of a misdemeanor and, upon conviction thereof, shall be
fined one thousand dollars.
(5) Any person convicted under the provisions of this
section shall, from and after such conviction, be barred from
providing future services or supplies to injured employees for
the purposes of workers' compensation and shall cease to receive
payment for such services or supplies.
(6) (A) The court, in imposing sentence on a person
convicted of an offense under this section, shall order the
person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable
to the commission of the offense. Any person convicted under
this section shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A), subsection (6) above,
the term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain,
inventory, safeguard, maintain, advertise, sell or dispose of
property under seizure, detention, or forfeiture, or of any other
necessary expenses incident to the seizure, detention, forfeiture
or disposal of such property, including payment for:
(a) Contract services;
(b) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary
to dispose of such properties in an effort to maximize the return
from such properties; and
(c) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph.
(ii) The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the
discretion of the workers' compensation fund to determine the
validity of any such lien or mortgage and the amount of payment
to be made, and the employment of attorneys and other personnel
skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on
forfeited real property that accrued between the date of the
violation giving rise to the forfeiture and the date of the
forfeiture order.
(7) Venue for prosecution of any violation of this
subsection shall be either the county in which the defendant's
principal business operations are located or in Kanawha County
where the workers' compensation fund is located.
§61-3-24h. Providing false documentation to workers'
compensation; altering documents or certificates
from workers' compensation; penalties; venue.
(1) Any person, firm, partnership, company, corporation
association or medical provider who submits false documentation
to workers' compensation with the intent to defraud workers'
compensation shall be guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a term not to
exceed one year or fined an amount not to exceed two thousand
five hundred dollars, or both, in the discretion of the court.
(2) Any person, firm, partnership, company, corporation,
association or medical provider who alters, falsifies, defaces,
changes or modifies any certificate or other document which would
indicate good standing with workers' compensation or endorsement by workers' compensation for medical services shall be guilty of
a misdemeanor and, upon conviction thereof, shall be confined in
jail for a term not to exceed one year or fined an amount not to
exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(3) Venue for prosecution of any violation of this section
shall be either the county in which the claimant resides, a
defendant's principal business operations are located, or in
Kanawha County where the workers' compensation fund is located.
NOTE: The purpose of the bill is to make changes to the
laws relating to workers' compensation.
The use of information obtained from the unemployment
compensation division to assist in determining employment status;
A modification in methodology of calculating penalties for
late filing and other improprieties so that penalties will be
calculated using a percentage of the premium tax due;
A modification to eliminate the penalty premium rate that is
currently applied to certain default employers;
A new provision to allow, for a limited time, the settlement
of outstanding accounts and relief from the imposition of
penalties and interest;
A modification to allow the compensation programs
performance council to solely approve accounting write-offs;
A modification to change the interest rate imposed for
unpaid premium taxes from eighteen percent to the greater of the
workers' compensation discount rate or the prime interest rate
plus four percent, whichever is greater;
A modification to allow the workers' compensation division
to retain certain abandoned funds after proper notice is
provided;
A modification to the threshold for consideration for a
permanent total disability award to forty percent impairment or
thirty-five percent disability awarded pursuant to a statutory
schedule;
A provision to make the change in the threshold for
consideration for a permanent total disability award retroactive
for all injuries incurred and all occupational diseases with a
date of last exposure on and after February 2, 1995;
A modification restoring retroactively the terminated
provisions of West Virginia Code §23-4-9 regarding physical and
vocational rehabilitation;
A modification restoring retroactively lump sum one hundred
four weeks benefits to dependents of permanent total disability
award recipients;
A modification providing that the experience of one hundred
four weeks benefits not be directly charged to the employer;
A modification to revise the process for compromise and
settlement of workers' compensation claims;
A modification to eliminate certain statutory hearing
requirements and to authorize the office of judges to promulgate
rules for an adjudicatory process on workers' compensation claims
that enables parties to present evidence in as expeditious a
manner as possible;
A statement of intent by the Legislature to construe the
article so that any benefit adjustments and premium tax
adjustments resulting therefrom become concomitantly effective;
and
The creation of four new sections in the criminal code, all
relating to offenses by employers, responsible persons, claimants
and health care providers with relation to workers' compensation.
Although the sections are new, the provisions have been taken
from chapter twenty-three, modified and strengthened, and
reinserted into the criminal code provisions.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§23-2-5b and §§61-3-24e, 24f, 24g and 24h are new sections;
therefore, strike-throughs and underscoring have been omitted.