H. B. 3259
(By Delegate Walters)
[Introduced March 20, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §23-5-7 of the Code of West Virginia,
1931, as amended, relating to compromise and settlement of
workers' compensation claims for permanent total disability;
requiring the appointment of a guardian ad litem for claimants
without lawyers; and providing for payment of fees by the
Insurance Commissioner.
Be it enacted by the Legislature of West Virginia:
That §23-5-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. REVIEW.
§23-5-7. Compromise and settlement.
With the exception of medical benefits for nonorthopedic
occupational disease claims, the claimant, the employer and the
Workers' Compensation Commission, the successor to the commission,
other private insurance carriers and self-insured employers, whichever is applicable, may negotiate a final settlement of any
and all issues in a claim wherever the claim is in the
administrative or appellate processes. If the employer is not
active in the claim, the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, may negotiate a final
settlement of any and all issues in a claim except for medical
benefits for nonorthopedic occupational disease claims with the
claimant and said settlement shall be made a part of the claim
record. Except in cases of fraud, no issue that is the subject of
an approved settlement agreement may be reopened by any party,
including the commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is
applicable. Any settlement agreement may provide for a lump-sum
payment or a structured payment plan, or any combination thereof,
or any other basis as the parties may agree. If a self-insured
employer later fails to make the agreed-upon payment, the
commission shall assume the obligation to make the payments and
shall recover the amounts paid or to be paid from the self-insurer
employer and its sureties or guarantors or both as provided in
section sections five and five-a, article two of this chapter.
Each settlement agreement shall provide the toll free number
of the West Virginia State Bar Association and shall provide the
injured worker with five business days to revoke the executed agreement. The Insurance Commissioner may void settlement
agreements entered into by an unrepresented injured worker which
are determined to be unconscionable pursuant to criteria
established by rule of the commissioner.
The amendments to this section enacted during the regular
session of the Legislature in the year 1999 shall apply to all
settlement agreements executed after the effective date.
When a settlement agreement is being negotiated for a
permanent total disability award and the claimant is not
represented by a lawyer, the Insurance Commissioner shall appoint
a guardian ad litem to represent the interests of the claimant.
Fees for the service of the guardian ad litem shall be paid by the
Insurance Commissioner.
NOTE: The purpose of this bill is relating to requiring the
appointment of a guardian ad litem for claimants without lawyers
when there is negotiation of compromise and settlement of workers'
compensation claims for permanent total disability. It also
provides for payment of fees of a guardian ad litem by the
Insurance Commissioner.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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