Introduced Version
House Bill 2070 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2070
(By Delegate Walters)
[Introduced February 11, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §23-5-1 of the Code of West Virginia,
1931, as amended, relating to improving claimants' access to
worker's compensation adjusters by requiring that all worker's
compensation adjusters employed by a private insurance carrier
shall be located within the geographic borders of West
Virginia.
Be it enacted by the Legislature of West Virginia:
That §23-5-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The Insurance Commissioner, private carriers and
self-insured employers may determine all questions within their jurisdiction. All adjusters employed by a private insurance
carrier shall be located within the geographic borders of West
Virginia. In matters arising under articles 3 and 4 of this
chapter, the Insurance Commissioner private carriers and
self-insured employers shall promptly review and investigate all
claims. The parties to a claim are the claimant and, if
applicable, the claimant's dependants, and the employer, and with
respect to claims involving funds created in article 2C of this
chapter for which he or she has been designated the administrator,
the Insurance Commissioner. In claims in which the employer had
coverage on the date of the injury or last exposure, the employer's
carrier has sole authority to act on the employer's behalf in all
aspects related to litigation of the claim. With regard to any
issue which is ready for a decision, the Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
shall promptly send the decision to all parties, including the
basis of its decision. As soon as practicable after receipt of the
claim, but in no event later than the date of the initial decision
on the claim, the Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, shall send the
claimant a brochure approved by the Insurance Commissioner setting
forth the claims process.
(b) (1) Except with regard to interlocutory matters, upon
making any decision, upon making or refusing to make any award or upon making any modification or change with respect to former
findings or orders, as provided by section 16, article 4 of this
chapter, the Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, shall give notice,
in writing, to the parties to the claim of its action. The notice
shall state the time allowed for filing a protest to the finding.
The action of the Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, is final unless the
decision is protested within 60 days after the receipt of such
decision, unless a protest is filed within the 60-day period, the
finding or action is final. This time limitation is a condition of
the right to litigate the finding or action and hence
jurisdictional. Any protest shall be filed with the office of
judges with a copy served upon the parties to the claim, and other
parties in accordance with the procedures set forth in sections 8
and 9 of this article. An employer may protest decisions
incorporating findings made by the Occupational Pneumoconiosis
Board, decisions made by the Insurance Commissioner acting as
administrator of claims involving funds created in article 2C of
this chapter, or decisions entered pursuant to subdivision (1),
subsection (c), section 7a, article 4 of this chapter.
(2) (A) With respect to every application for benefits filed
on or after July 1, 2008, in which a decision to deny benefits is
protested and the only controversy relating to compensability is whether the application was properly filed as a new claim or a
reopening of a previous claim, the party that denied the
application shall begin to make conditional payment of benefits and
must promptly give notice to the office of judges that another
identifiable person may be liable. The office of judges shall
promptly order the appropriate persons be joined as parties to the
proceeding: Provided, That at any time during a proceeding in
which conditional payments are being made in accordance with the
provisions of this subsection, the office of judges may, pending
final determination of the person properly liable for payment of
the claim, order that such conditional payments of benefits be paid
by another party.
(B) Any conditional payment made pursuant to paragraph (A) of
this subdivision shall not be deemed an admission or conclusive
finding of liability of the person making such payments. When the
administrative law judge has made a determination as to the party
properly liable for payment of the claim, he or she shall direct
any monetary adjustment or reimbursement between or among the
Insurance Commissioner, private carriers and self-insured employers
as is necessary.
(C) The office of judges may direct that:
(i) An application for benefits be designated as a petition to
reopen, effective as of the original date of filing;
(ii) A petition to reopen be designated as an application for benefits, effective as of the original date of filing; or
(iii) An application for benefits or petition to reopen filed
with the Insurance Commissioner, private carrier or self-insured
employer be designated as an application or petition to reopen
filed with another private carrier, self-insured employer or
Insurance Commissioner.
(c) Where an employer protests a written decision entered
pursuant to a finding of the Occupational Pneumoconiosis Board, a
decision on a claim made by the Insurance Commissioner acting as
the administrator of a fund created in article 2C of this chapter,
or decisions entered pursuant to subdivision (1), subsection (c),
section 7a, article 4 of this chapter, and the employer does not
prevail in its protest, and in the event the claimant is required
to attend a hearing by subpoena or agreement of counsel or at the
express direction of the office of judges, then the claimant in
addition to reasonable traveling and other expenses shall be
reimbursed for loss of wages incurred by the claimant in attending
the hearing.
(d) The Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable may amend, correct
or set aside any order or decision on any issue entered by it
which, at the time of issuance or any time after that, is
discovered to be defective or clearly erroneous or the result of
mistake, clerical error or fraud, or with respect to any order or decision denying benefits, otherwise not supported by the evidence,
but any protest filed prior to entry of the amended decision is a
protest from the amended decision unless and until the
administrative law judge before whom the matter is pending enters
an order dismissing the protest as moot in light of the amendment.
Jurisdiction to issue an amended decision pursuant to this
subsection continues until the expiration of two years from the
date of a decision to which the amendment is made unless the
decision is sooner affected by an action of an administrative law
judge or other judicial officer or body: Provided, That corrective
actions in the case of fraud may be taken at any time.
NOTE: The purpose of this bill is to improve claimants' access
to worker's compensation adjusters by requiring that all worker's
compensation adjusters employed by a private insurance carrier be
located within the geographic borders of West Virginia.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.