ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 579
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive.)
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[Originating in the Committee on the Judiciary;
reported February 19, 1999.]
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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, eight-a, nine and ten,
article four of said chapter; to amend and reenact sections
seven and nine, article five of said chapter; to amend article
six of said chapter by adding thereto a new section,
designated section two; 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; providing that information
obtained from the state tax commissioner and the unemployment
compensation division may be used to determine employment
status; eliminating penalty premium tax; modifying the method
of calculating penalties for late reporting and other
improprieties; providing for premium tax settlements and
relief from accrued interest and penalties; authorizing
compensation programs performance council to review and
approve write-off of uncollectible receivables; modifying
interest rate on past-due payments; providing that certain
deposits and disbursements are abandoned property and
providing for the disposition thereof; modifying the method of
compensating the interdisciplinary examining board and
confirming the duties thereof; lowering the threshold for
consideration of a permanent total disability award to forty
percent medical impairment or thirty-five percent disability
based on statutory schedule; clarifying appointment and
compensation of the occupational pneumoconiosis board;
restoring terminated provisions establishing physical and
vocational rehabilitation program; restoring the lump sum one
hundred four weeks benefit to dependents of deceased permanent total disability award recipients and providing that employers
not be directly charged with the experience of such award;
modifying compromise and settlement procedures 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; revising hearing procedures
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; setting
forth legislative intent that compensation programs
performance council consider employer rate reductions
commensurate with cost of employee benefits; establishing
internal operative dates of legislation; clarifying and
strengthening criminal penalties for any person who knowingly
and willfully fails to subscribe to the workers' compensation
fund, fails to pay premium taxes, fails to file premium tax
reports, fails to file other reports or makes a false report or statement under oath; providing that certain property is
subject to forfeiture; imposing costs to accomplish forfeiture
on person convicted; clarifying and strengthening criminal
penalties for any person who knowingly and with fraudulent
intent secures or attempts to secure workers' compensation to
which they are not entitled or who knowingly and willfully
makes a false report under oath; authorizing restitution and
termination of benefits; clarifying and strengthening criminal
penalties for knowingly and willfully committing certain
fraudulent offenses in connection with the delivery of or
payment for workers' compensation health care benefits, items
or services; barring persons from providing future services;
terminating payments for such services; providing that certain
property is subject to forfeiture; imposing costs to
accomplish forfeiture on person convicted; and establishing
criminal penalties for any person who provides false
information with the intent to defraud workers' compensation
or who alters documents or certificates to indicate good
standing with workers' compensation.
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, eight-a, 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
article six of said chapter be amended and reenacted by adding
thereto a new section, designated section two; 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 er 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 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 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 the
commissioner 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 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 if an employer enters 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, however
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 considered abandoned
property; 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 exclusively 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,
however, 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 as assigned by the provisions of this chapter,
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.
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 (i) 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 that the amendments to
this section enacted during the regular session of the Legislature
in the year one thousand nine hundred ninety-nine which change
criteria for an award of permanent total disability benefits be
applied retroactively to 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
any claimant whose application for permanent total disability
benefits was rejected on or after the second day of February, one
thousand nine hundred ninety-five based on a finding that the
claimant: (1) 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) 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 on the claimant's petition for reconsideration.
§23-4-8a. Occupational pneumoconiosis board -- Composition; term
of office; duties; quorum; remuneration.
The occupational pneumoconiosis board shall consist of five
licensed physicians, who shall be appointed by the commissioner
not
later than the first day of July, one thousand nine hundred ninety- nine. No person shall be appointed as a member of
such the board,
or as a consultant thereto, who has not by special study or
experience, or both, acquired special knowledge of pulmonary
diseases. All members of the occupational pneumoconiosis board
shall be physicians of good professional standing, admitted to
practice medicine and surgery in this state, and two of them shall
be roentgenologists. One of the board shall be designated annually as chairman by the commissioner. The term of office of each member
of
such the board shall be six years.
The three members of the
existing board, as redesignated herein, in office on the effective
date of this act shall continue to serve until their terms expire
and until their successors have been appointed and have qualified.
Any member of the board may be appointed to any number of terms.
The function of the board
shall be is to determine all medical
questions relating to cases of compensation for occupational
pneumoconiosis under the direction and supervision of the
commissioner. Any three members of the board
shall constitute a
quorum for the transaction of its business, if at least one of the
members present is a roentgenologist. 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 each member of
such the board and
they the members
shall also be entitled to reasonable and necessary traveling and
other expenses incurred while actually engaged in the performance
of their duties.
§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
reenactment of 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 during the regular
session of the Legislature in the year one thousand nine hundred
ninety-nine is for the purpose of reestablishing the rehabilitation
program heretofore created by virtue of the provisions of this
section and the rules promulgated pursuant thereto for all injured
employees who sustained injuries on or after the first day of July,
one thousand nine hundred ninety-eight. To this end, the
performance council is directed to reenact the rules promulgated
under the prior enactment of this section within fifteen days of
the effective date hereof and the commissioner shall promulgate any
revisions to the rules for review by the performance council on or
before the first day of July, one thousand nine hundred ninety- nine.
§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 that the amendments
to this subsection enacted during the regular session of the
Legislature in the year one thousand nine hundred ninety-nine be
construed so as 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 settlement, it shall be made a part of the claim record
and the office of judges shall send written 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, 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; LEGISLATIVE INTENT.
§23-6-2. Legislative intent.
It is the intent of the Legislature in enacting the amendments
to this chapter during the regular session of the Legislature in
the year one thousand nine hundred ninety-nine relating to employee
benefits that the compensation programs performance council
consider employer rate reductions commensurate with the cost of
such employee benefits.
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
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 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.
(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 a state
correctional facility 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 paragraph (6)(A), 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, 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 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 five of 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 paragraph (6)(A), 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 that the Compensation
Programs Performance Council consider employer rate reductions
commensurate with benefit adjustments; 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, three of 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, §23-6-2 and §§61-3-24e, 24f, 24g and 24h are new;
therefore underscoring and strike-throughs have been omitted.)