TABLE OF CONTENTS
CHAPTER 22. ENVIRONMENTAL RESOURCES 4
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT 4
§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in
interest; duration of permits; proof of insurance; termination of permits;
permit fees. 5
CHAPTER 23. WORKERS' COMPENSATION 7
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS 7
§23-1-1. Commissioner of the bureau of employment programs; compensation programs
performance council; official seal; continuation of authority of
commissioner; legal services; rules. 7
§23-1-4. Office hours; records; confidentiality; exceptions: executive director. 9
§23-1-11. Depositions; investigations. 11
§23-1-13. Rules of procedure and evidence; persons authorized to appear in proceedings;
withholding of psychiatric and psychological reports and providing
summaries thereof. 12
§23-1-16. Omission to subscribe; failure to report or perform required duty; false testimony
or statements; criminal penalties; venue. 16
§23-1-18. Division employees not subject to subpoena for workers' compensation hearings. 17
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE 17
§23-2-1. Employers subject to chapter; elections not to provide certain coverages; notices;
filing of business registration certificates. 17
§23-2-1d. Primary contractor liability; definitions; applications and exceptions; certificates of
good standing; reimbursement and indemnification; termination of contracts;
effective date; collections efforts. 23
§23-2-3. Report forms and other forms for use of employers. 26
§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems;
accounts. 27
§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. 33
§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil
remedies; creation and enforcement of lien against employer and purchaser;
duty of secretary of state to register liens; distraint powers; insolvency
proceedings; secretary of state to withhold certificates of dissolution;
injunctive relief; bond; attorney fees and costs. 45
§23-2-9. Election of employer to be self-insured and to provide own system of
compensation; mandatory participation in second injury reserve; exceptions;
catastrophe coverage; self administration. 48
§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; enforcement of lien. 67
§23-2-15. Liabilities of successor employer; waiver of payment by division; assignment of
predecessor employer's premium rate to successor. 72
ARTICLE 3. WORKERS' COMPENSATION FUND 75
§23-3-1. Compensation fund; surplus fund; catastrophe and catastrophe payment defined;
second injury and second injury reserve; compensation by employers. 75
§23-3-4. Disbursements not considered as abandoned property; interest to be retained. 79
§23-3-5. Authorization to require the electronic invoices and transfers. 80
ARTICLE 4. DISABILITY AND DEATH BENEFITS 80
§23-4-1a. Report of injuries by employee. 80
§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of
medical benefits; payments of benefits during protest; right of division to
collect payments improperly made. 81
§23-4-1d. Method and time of payments for permanent disability. 87
§23-4-3. Schedule of maximum disbursements for medical, surgical, dental and hospital
treatment; legislative approval; guidelines; preferred provider agreements;
charges in excess of scheduled amounts not to be made; required disclosure
of financial interest in sale or rental of medically related mechanical
appliances or devices; promulgation of rules to enforce requirement;
consequences of failure to disclose; contract by employer with hospital,
physician, etc., prohibited; criminal penalties for violation; payments to
certain providers prohibited; medical cost and care programs; payments;
interlocutory orders. 90
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties. 101
§23-4-6. Classification of and criteria for disability benefits.102
§23-4-6a. Benefits and mode of payment to employees and dependents for occupational
pneumoconiosis; further adjustment of claim for occupational
pneumoconiosis.123
§23-4-6c. Benefits payable to certain sheltered workshop employees; limitations.124
§23-4-7. Release of medical information to employer; legislative findings; effect of
application for benefits; duty of employer.125
§23-4-7a. Monitoring of injury claims; legislative findings; review of medical evidence;
recommendation of authorized treating physician; independent medical
evaluations; temporary total disability benefits and the termination thereof;
mandatory action; additional authority.127
§23-4-10. Classification of death benefits; "dependent" defined.133
§23-4-15. Application for benefits. 136
§23-4-15b. Determination of nonmedical questions by division; claims for occupational
pneumoconiosis; hearing.138
§23-4-16. Division's jurisdiction over case continuous; modification of finding or order; time
limitation on awards; reimbursement of claimant for expenses; reopening
cases involving permanent total disability; promulgation of rules.141
§23-4-18. Mode of paying benefits generally; exemptions of compensation from legal
process.147
§23-4-24. Permanent total disability awards; retirement age; limitations on eligibility and the
introduction of evidence; effects of other types of awards; procedures;
requests for awards; jurisdiction.148
§23-4-25. Permanent total disability benefits; reduction of disability benefits for wages
earned by claimant.150
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND151
§23-4C-1. Purpose. 151
§23-4C-2. Employers' excess liability fund established.152
ARTICLE 5. REVIEW153
§23-5-1. Notice by division of decision; procedures on claims; objections and hearing;
mediation.153
§23-5-2. Application by employee for further adjustment of claim -- Objection to
modification; hearing.157
§23-5-3. Refusal to reopen claim; notice; objection.157
§23-5-4. Application by employer for modification of award -- Objection to modification;
hearing.158
§23-5-5. Refusal of modification; notice; objection.159
§23-5-6. Time periods for objections and appeals; extensions.160
§23-5-7. Compromise and settlement.160
§23-5-8. Continuation of office of administrative law judges; powers of chief administrative
law judge and said office.165
23-5-9. Hearings on objections to commissioner's division decisions by office of
administrative law judges.169
§23-5-10. Appeal from administrative law judge decision to appeal board.171
§23-5-11. Workers' compensation appeal board -- Generally.172
3-5-12. Appeal to board; procedure; remand and supplemental hearing.174
§23-5-13. Continuances and supplemental hearings; claims not to be denied on technicalities178
§23-5-14. Disqualification of board members.178
§23-5-15. Appeals from final decisions of board to supreme court of appeals; procedure;
costs. 179
§23-5-16. Fees of attorney for claimant; unlawful charging or receiving of attorney fees. 181
COMMITTEE SUBSTITUTE
FOR
H. B. 2346
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
(Originating in the House Committee on the Judiciary)
[February 8, 1995]
A BILL to repeal sections five-b and eighteen, article two,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to repeal
section two, article two-a of said chapter; to amend and
reenact section eight, article three, chapter twenty-two of
said code; to amend and reenact sections one, four, eleven,
thirteen and sixteen, article one, chapter twenty-three of
said code; to further amend said article by adding thereto a
new section, designated section eighteen; to amend and
reenact sections one, one-d, three, four, five, five-a,
nine, fourteen and fifteen, article two of said chapter; to
amend section one, article three of said chapter; to further
amend said article by adding thereto two new sections,
designated sections four and five; to amend and reenact sections one-a, one-c, one-d, three, four, six, six-a, six-
c, seven, seven-a, ten, fifteen, fifteen-b, sixteen,
eighteen, twenty-four and twenty-five, article four of said
chapter; to amend and reenact sections one and two, article
four-c of said chapter; and to amend and reenact article
five of said chapter, all relating generally to workers'
compensation and reform thereof; proof of coverage for
mining permits; representation of the commissioner;
executive director of workers' compensation division;
release of information; hearings; notice to parties and
attorneys; felony offense for failure to subscribe, make
payment or file reports and the criminal penalties therefor;
venue for offenses; felony offense for making false report
or statement and the criminal penalties therefor; subpoenas
of division employees; coverage for volunteers; premium
taxes; failure to subscribe and consequent noncoverage of
partner, proprietor or officer; definitions; primary
contractor liability; notice of subcontractor default;
report forms; classification of industries; premium tax
setting methodologies; defaulted employers; repayment
agreements; penalties; wage reports; amounts of premium
taxes to be filed; collections; rules; refunds of deposits;
self insurance generally; security; self administration of benefits by employer; sale or transfer of business;
attachment of liens; assumption of predecessor's premium tax
rate; relief therefrom; surplus fund; second injury benefits
determination; definitions; moneys from chapter funds not
abandoned property; interest on chapter funds to be retained
by said funds; electronic invoices, payments, and transfers;
mailing of reports of injuries; conditional order of
compensability; when back payments of disability awards to
be made; payments for health care services and goods;
generic drugs; out of state health care providers; refusal
to accept fee schedule payments; assumption of payments by
claimant; exceptions; managed care organizations; choice of
health care providers; limitations thereon; funeral
expenses; fee schedules; criminal penalties; benefit rates;
cessation of payments at retirement age; disability awards;
medical impairment; medical panel; standards of review;
limits thereon; threshold for requests for permanent total
disability awards; standard of review and limits thereon of
decisions by occupational pneumoconiosis board; patient-
physician privilege; exceptions; cessation of certain
permanent disability benefits upon return to work; change in
method of payments of certain dependents' benefits;
annuities; election for reduced benefits; time for filing claims applications and limitations thereon; reopening time
limits and expiration of right to reopen; time requirements
for decisions on reopening requests; consolidation of
disability requests; what awards qualify for permanent total
disability consideration; offset for earnings; employers'
excess liability fund; sale or abolition thereof; parties to
objections and appeals; office of judges generally;
correction of decisions by division; processing of
applications for modifications of prior awards; compromise
and settlement; review and approval thereof; continuance of
office of judges and chief administrative law judge;
relationship thereof to compensation programs performance
council; termination; salary; reports; employees; approval
of rules; appeals board; duties; reports; employees; and
standards of review by appeals board and supreme court of
appeals and remands.
Be it enacted by the Legislature of West Virginia:
That sections five-b and eighteen, article two, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be repealed; that section two,
article two-a of said chapter be repealed; that section eight,
article three, chapter twenty-two of said code be amended and
reenacted; that sections one, four, eleven, thirteen and sixteen, article one, chapter twenty-three of said code be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section eighteen; that sections one,
one-d, three, four, five, five-a, nine, fourteen and fifteen,
article two of said chapter be amended and reenacted; that
section one, article three of said chapter be amended and
reenacted; said article be further amended by adding thereto two
new sections, designated sections four and five; that sections
one-a, one-c, one-d, three, four, six, six-a, six-c, seven,
seven-a, ten, fifteen, fifteen-b, sixteen, eighteen, twenty-four
and twenty-five, article four of said chapter be amended and
reenacted; that sections one and two, article four-c of said
chapter be amended and reenacted; and that article five of said
chapter be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-8. Prohibition of surface mining without a permit; permit
requirements; successor in interest; duration of
permits; proof of insurance; termination of
permits; permit fees.
No person may engage in surface-mining operations unless
such person has first obtained a permit from the director in
accordance with the following:
(1) All permits issued pursuant to the requirements of this article shall be issued for a term not to exceed five years:
Provided, That if the applicant demonstrates that a specified
longer term is reasonably needed to allow the applicant to obtain
necessary financing for equipment and the opening of the
operation, and if the application is full and complete for such
specified longer term, the director may extend a permit for such
longer term: Provided, however, That subject to the prior
approval of the director, with such approval being subject to the
provisions of subsection (c), section eighteen of this article, a
successor in interest to a permittee who applies for a new
permit, or transfer of a permit, within thirty days of succeeding
to such interest, and who is able to obtain the bond coverage of
the original permittee, may continue surface-mining and
reclamation operations according to the approved mining and
reclamation plan of the original permittee until such successor's
permit application or application for transfer is granted or
denied.
(2) Proof of insurance is required on an annual basis.
(3) A permit terminates if the permittee has not commenced
the surface-mining operations covered by such permit within three
years of the date the permit was issued: Provided, That the
director may grant reasonable extensions of time upon a timely
showing that such extensions are necessary by reason of litigation precluding such commencement, or threatening
substantial economic loss to the permittee, or by reason of
conditions beyond the control and without the fault or negligence
of the permittee: Provided, however, That with respect to coal
to be mined for use in a synthetic fuel facility or specific
major electric generating facility, the permittee shall be deemed
to have commenced surface-mining operations at such time as the
construction of the synthetic fuel or generating facility is
initiated.
(4) Each application for a new surface-mining permit filed
pursuant to this article shall be accompanied by a fee of one
thousand dollars. All permit fees and renewal fees provided for
in this section or elsewhere in this article shall be collected
by the director and deposited with the treasurer of the state of
West Virginia to the credit of the operating permit fees fund and
shall be used, upon requisition of the director, for the
administration of this article.
(5) Prior to the issuance of any permit, the director shall
ascertain from the commissioner of the division of labor whether
the applicant is in compliance with section fourteen, article
five, chapter twenty-one of this code. Upon issuance of the
permit, the director shall forward a copy to the commissioner of
the division of labor, who shall assure continued compliance under such permit.
(6) (A) Prior to the issuance of any permit the director
shall ascertain from the commissioner of the bureau of employment
programs whether the applicant is in compliance with the
provisions of section five, article two, chapter twenty-three of
this code with regard to any required subscription to the
workers' compensation fund, the payment of premiums to the fund,
the timely filing of payroll reports and the maintenance of an
adequate premium deposit. If the applicant is not in compliance,
is delinquent or defaulted, or has been terminated, then the
permit shall not be issued until the applicant returns to
compliance or is restored by the workers' compensation division
under a reinstatement agreement: Provided, That in all such
inquiries the commissioner of the bureau of employment programs
shall make response to the division of environmental protection
within fifteen calendar days, otherwise failure to respond timely
shall be considered to indicate the applicant is in compliance
and such failure will not be used to preclude issuance of the
permit.
(B) It is a requirement of this article that each operator
maintain continued compliance with the provisions of section
five, article two, chapter twenty-three of this code and provide
proof of compliance to the director on an annual basis.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Commissioner of the bureau of employment programs;
compensation programs performance council; official
seal; continuation of authority of commissioner;
legal services; rules.
(a) The commissioner of the bureau of employment programs
appointed under the provisions of section one, article two,
chapter twenty-one-a of this code, has the sole responsibility
for the administration of this chapter except for such matters as
are entrusted to the compensation programs performance council
created pursuant to section one, article three, chapter twenty-
one-a of this code. In the administration of this chapter, the
commissioner shall exercise all the powers and duties described
in this chapter and in article two, of said chapter chapter
twenty-one-a of this code.
(b) The commissioner is authorized to promulgate rules and
regulations to implement the provisions of articles one through
five of this chapter.
(c) The commissioner shall have an official seal for the
authentication of orders and proceedings, upon which seal shall
be engraved the words "West Virginia Commissioner of Employment
Programs" and such other design as the commissioner may
prescribe. The courts in this state shall take judicial notice of the seal of the commissioner and in all cases copies of
orders, proceedings or records in the office of the West Virginia
commissioner of employment programs shall be equal to the
original in evidence.
(d) Pursuant to the provisions of chapter four, article ten
of this code, the commissioner of the bureau of employment
programs shall continue to administer this chapter until the
first day of July, one thousand nine hundred ninety-six, to allow
the joint committee on government operations to monitor
compliance with recommendations set forth in the full performance
audit of the office of the workers' compensation commissioner.
completed in the year one thousand nine hundred ninety.
(e) The attorney general shall perform all legal services
required by the commissioner under the provisions of this
chapter: Provided, That in any case in which an application for
review is prosecuted from any final decision of the workers'
compensation appeal board to the supreme court of appeals, as
provided by section four, article five of this chapter, or in any
court proceeding before the workers' compensation appeal board,
or in any proceedings before the office of judges, or in any case
in which a petition for an extraordinary writ is filed in the
supreme court of appeals or in any circuit court, in which such
representation shall appear to the commissioner to be desirable, the commissioner may designate a regular employee of this office,
qualified to practice before such court to represent the
commissioner upon such appeal or proceeding, and in no case shall
the person so appearing for the commissioner before the court
receive remuneration therefor other than such person's regular
salary.
§23-1-4. Office hours; records; confidentiality; exceptions:
executive director.
(a) The offices of the commissioner workers' compensation
division shall be open for the transaction of business between
the hours of eight-thirty o'clock a.m., and five o'clock p.m., of
each and every day, excepting Saturdays, Sundays and legal
holidays, and be open upon such additional days and at such
additional times as the commissioner division may elect., and be
in charge of his or her secretary or some other competent person
As the chief executive officer of the bureau of employment
programs, the commissioner shall designate an executive director
to serve as the chief operating officer for the daily operations
of the workers' compensation division: Provided, That in any
instance in this chapter which refers to the commissioner's
secretary, such reference shall be taken to mean the executive
director.
(b) Except as expressly provided for in this subsection, information obtained from regarding employers and claimants
pursuant to this chapter for the purposes of its administration
shall not be subject to the provisions of chapter twenty-nine-b
of this code unless such provisions are hereafter specifically
made applicable in whole or in part. Such information as may be
reasonably necessary may be released in formal orders or opinions
of any tribunal or court which is presented with an issue arising
under this chapter as well as in the presentations of the parties
before any such tribunal or court. Similarly, claimants or other
interested parties to an issue arising under this chapter may,
upon request, obtain information from the division's records to
the extent necessary for the proper presentation or defense of a
claim or other matter. Information may be released to any
requestor pursuant to the provisions of chapter twenty-nine-b of
this code only if all identifying information has first been
eliminated from the records. Nothing in this subsection shall
prevent the release of information to another agency of the state
or of the federal government for the legitimate purposes of those
agencies: Provided, That any such agency shall guarantee the
confidentiality of the information so provided to the fullest
extent possible in keeping with its own statutory and regulatory
mandates. Nothing in this section shall prevent the commissioner
division from complying with any subpoena duces tecum: Provided, however, That the issuing tribunal or court shall take such
actions as may be proper to maintain the confidentiality of the
information.
The commissioner division may release, pursuant to a proper
request under the provisions of chapter twenty-nine-b of this
code, the following information:
(1) The base premium tax rate for a specific employer;
(2) Whether or not a specific employer has obtained coverage
under the provisions of this chapter;
(3) Whether or not a specific employer is in good standing
or is delinquent or in default according to the commissioner's
division's records and the time periods thereof; and
(4) If a specific employer is delinquent or in default, what
the payments due the commissioner division are and what the
components of that payment are including the time periods
affected.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under
articles one through five of this chapter, the commissioner
division may cause depositions of witnesses residing within or
without the state to be taken in the manner prescribed by law for
like depositions in the circuit court, but such depositions shall
be upon reasonable notice to claimant and employer or other affected persons or their respective attorneys. The commissioner
division shall designate the person to represent him or her it
for the taking of any such deposition.
(b) The commissioner division shall also have discretion to
accept and consider depositions taken within or without the state
by either the claimant or employer or other affected person,
provided due and reasonable notice of the taking of such
depositions was given to the other party, claimant or employer,
as the case may be, or his or her attorney parties or their
attorneys, if any: Provided, That the commissioner division,
upon due notice both to the employer and claimant to the parties,
shall have authority to refuse or permit the taking of such
depositions or to reject such depositions after the taking
thereof, if in his or her opinion they were taken at such place
or under such circumstances as imposed an undue burden or
hardship upon the opposite party other parties, and the
commissioner's division's discretion to accept, refuse to
approve, or reject such depositions shall be binding in the
absence of abuse of such discretion.
§23-1-13. Rules of procedure and evidence; persons authorized
to appear in proceedings; withholding of
psychiatric and psychological reports and providing
summaries thereof.
(a) The commissioner workers' compensation division shall adopt reasonable and proper rules of procedure, regulate and
provide for the kind and character of notices, and the service
thereof, in cases of accident and injury to employees, the nature
and extent of the proofs and evidence, the method of taking and
furnishing the same to establish the rights to benefits or
compensation from the fund hereinafter provided for, or directly
from employers as hereinafter provided, as the case may require,
and the method of making investigations, physical examinations
and inspections, and prescribe the time within which
adjudications and awards shall be made.
(b) At hearings and other proceedings before the
commissioner division or before the duly authorized
representative of the commissioner division, an employer who is a
natural person may appear, and a claimant may appear, only as
follows:
(1) By an attorney duly licensed and admitted to the
practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a representative from a labor organization who has
been recognized by the commissioner division as being qualified
to represent a claimant or who is an individual otherwise found
to be qualified by the commissioner division to act as a
representative. Such representative shall participate in the
presentation of facts, figures and factual conclusions as
distinguished from the presentation of legal conclusions in
respect to such facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the
commissioner division or before the duly authorized
representative of the commissioner division, an employer who is
not a natural person may appear only as follows:
(1) By an attorney duly licensed and admitted to the
practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a member of the board of directors of a corporation
or by an officer of the corporation, for purposes of representing the interest of the corporation in the presentation of facts,
figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such facts and
figures; or
(4) By a representative from an employer service company who
has been recognized by the commissioner division as being
qualified to represent an employer or who is an individual
otherwise found to be qualified by the commissioner division to
act as a representative. Such representative shall participate
in the presentation of facts, figures and factual conclusions as
distinguished from the presentation of legal conclusions in
respect to such facts and figures.
(d) The commissioner or his or her division or its
representative may require an individual appearing on behalf of a
natural person or corporation to produce satisfactory evidence
that he or she is properly qualified and authorized to so appear
pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not
be construed as being applicable to proceedings before the office
of judges pursuant to the provisions of article five of this
chapter.
(f) At the direction of a treating or evaluating
psychiatrist or clinical doctoral level psychologist, a psychiatric or psychological report concerning a claimant who is
receiving treatment or is being evaluated for psychiatric or
psychological problems may be withheld from the claimant. In
that event, a summary of the report shall be compiled by the
reporting psychiatrist or clinical doctoral level psychologist
which summary shall be provided to the claimant upon his or her
request. Any representative or attorney of the claimant must
agree to provide such a claimant with only the summary before the
full report shall be provided to the representative or attorney
for his or her use in preparing the claimant's case. Such a
report shall only be withheld from the claimant in those
instances where the treating or evaluating psychiatrist or
clinical doctoral level psychologist certifies that exposure to
the contents of the full report is likely to cause serious harm
to the claimant or is likely to cause the claimant to pose a
serious threat of harm to a third party.
(g) In any matter arising under articles one through five
of this chapter in which the division is required to give notice
to a party, if a party is represented by an attorney or other
representative, then notice to the attorney or other
representative shall be sufficient notice to the party so
represented.
§23-1-16. Omission to subscribe; failure to report or perform required duty; false testimony or statements;
criminal penalties; venue.
(a) Any person, firm, or corporation partnership, company,
corporation, or association which who, as an employer, is
required by the provisions of this chapter to subscribe to the
workers' compensation fund, and which who knowingly and willfully
fails to subscribe thereto, or which who knowingly and willfully
fails to make any report or perform any other act or duty
required by the commissioner within the time specified by the
commissioner any payment or file a report as required by the
provisions of this chapter within the time periods specified by
law, shall be is guilty of a felony, and, upon conviction
thereof, shall be fined not less than one thousand dollars and
not more than ten thousand dollars. Upon any second or
subsequent conviction under this subsection, any person so
convicted shall be imprisoned 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 five thousand dollars nor
more than twenty-five thousand dollars: Provided, That in the
case of a person other than a natural person, the amount of the
fine shall be not less than ten thousand dollars nor more than
twenty-five thousand dollars. The venue for prosecution of any
violation of this subsection is either the county in which the defendant's principal business operations are located, or in
Kanawha county where the fund is located. In charging a person
with a second or subsequent offense under the provisions of this
subsection, the warrant, indictment or information must set forth
the date and particulars of the previous offense or offenses. No
person may be convicted of a second or subsequent offense unless
the conviction for the previous offense has become final, and
unless a prior offense occurred within the ten year period next
preceding the second or subsequent offense.
(b) Any person or firm, or the officer of any corporation,
who knowingly and willfully makes a false report or statement
under oath, affidavit, or certification respecting any
information required by the commissioner to be provided under
this chapter, or who shall knowingly testify falsely in any
proceeding before the commissioner or the office of judges, shall
be guilty of a felony, and, upon conviction thereof, shall be
fined not less than one thousand dollars and not nor more than
ten thousand dollars or confined in the penitentiary for not more
than three years, a definite term of imprisonment which is not
less than one year nor more than three years, or both.
§23-1-18. Division employees not subject to subpoena for
workers' compensation hearings.
No employee of the workers' compensation division shall be compelled to testify as to the basis, findings, or reasons for
any decision or order rendered by the employee under this chapter
in any hearing conducted pursuant to article five of this
chapter.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business
registration certificates.
(a) The state of West Virginia and all governmental agencies
or departments created by it, including county boards of
education, political subdivisions of the state, any volunteer
fire department or company and other emergency service
organizations as defined by article five, chapter fifteen of this
code, and all persons, firms, associations and corporations
regularly employing another person or persons for the purpose of
carrying on any form of industry, service or business in this
state, are employers within the meaning of this chapter and are
hereby required to subscribe to and pay premiums premium taxes
into the workers' compensation fund for the protection of their
employees and shall be subject to all requirements of this
chapter and all rules and regulations prescribed by the
commissioner workers' compensation division with reference to
rate, classification and premium payment: Provided, That such rates will be adjusted by the commissioner division to reflect
the demand on the compensation fund by the covered employer.
(b) The following employers are not required to subscribe to
the fund, but may elect to do so:
(1) Employers of employees in domestic services; or
(2) Employers of five or fewer full-time employees in
agricultural service; or
(3) Employers of employees while said employees are employed
without the state except in cases of temporary employment without
the state; or
(4) Casual employers. An employer is deemed to be a casual
employer when the number of his or her employees does not exceed
three and the period of employment is temporary, intermittent and
sporadic in nature and does not exceed ten calendar days in any
calendar quarter; or
(5) Churches; or
(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged
in thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary
unit organized under the auspices of a county commission,
municipality, or other government entity or political
subdivision; volunteer organizations created or sponsored by government entities, political subdivisions; or, area or regional
emergency medical services boards of directors in furtherance of
the purposes of the emergency medical services act of article
four-c of chapter sixteen of this code: Provided, That should any
of the employers described in this subdivision have paid
employees, then to the extent of those paid employees the
employer must subscribe to and pay premium taxes into the
workers' compensation fund based upon the gross wages of the paid
employees; but, with regard to the volunteers, such coverage
remains optional.
(c) Notwithstanding any other provision of this chapter to
the contrary, whenever there are churches in a circuit which
employ one individual clergyman and the payments to such
clergyman from such churches constitute his or her full salary,
such circuit or group of churches may elect to be considered a
single employer for the purpose of premium payment into the
workers' compensation fund.
(d) Employers who are not required to subscribe to the
workers' compensation fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in such case shall be subject to all requirements
of this chapter and all rules and regulations prescribed by the
commissioner division with reference to rates, classifications and premium payments and shall afford to them the protection of
this chapter, including section six of this article, but the
failure of such employers to choose to subscribe to and to pay
premiums into the fund shall not impose any liability upon them
other than such liability as would exist notwithstanding the
provisions of this chapter.
(e) Any foreign corporation employer whose employment in
this state is to be for a definite or limited period which could
not be considered "regularly employing" within the meaning of
this section may choose to pay into the workers' compensation
fund the premiums herein provided for, and at the time of making
application to the commissioner workers' compensation division,
such employer shall furnish a statement under oath showing the
probable length of time the employment will continue in this
state, the character of the work, an estimate of the monthly
payroll and any other information which may be required by the
commissioner division. At the time of making application such
employer shall deposit with the state compensation commissioner
division to the credit of the workers' compensation fund the
amount required by section five of this article, which amount
shall be returned to the employer if his the employer's
application be rejected by the commissioner division. Upon
notice to such employer of the acceptance of his or her application by the commissioner, division, he or she shall be an
employer within the meaning of this chapter and subject to all of
its provisions.
(f) Any foreign corporation employer choosing to comply with
the provisions of this chapter and to receive the benefits
hereunder shall, at the time of making application to the
commissioner, division in addition to other requirements of this
chapter, furnish such commissioner the division with a
certificate from the secretary of state, where such certificate
is necessary, showing that it has complied with all the
requirements necessary to enable it legally to do business in
this state and no application of such foreign corporation
employer shall be accepted by the commissioner division until
such certificate is filed.
(g) The following employers may elect not to provide
coverage to certain of their employees under the provisions of
this chapter:
(1) Employers of employees who are officers of and
stockholders in a corporation qualifying for special tax
treatment under subchapter S of the Internal Revenue Code of the
United States may elect not to provide coverage to such
employees; or
(2) If an employer is a partnership, sole proprietorship, association, or corporation, such employer may elect not to
include as an "employee" within this chapter, any member of such
partnership, the owner of the sole proprietorship, or any
corporate officer or member of the board of directors of the
association or corporation. The officers of a corporation or an
association shall consist of a president, a vice-president, a
secretary, and a treasurer, each of whom shall be elected by the
board of directors at such time and in such manner as may be
prescribed by the bylaws. Such other officers and assistant
officer as may be deemed necessary may be elected or appointed by
the board of directors or chosen in such other manner as may be
prescribed by the bylaws and, if so elected, appointed, or
chosen, such employer may elect not to include any such officer
or assistant officer as an "employee" within the meaning of this
chapter: Provided, That except for those persons who are members
of the board of directors or who are the corporation's or
association's president, vice-president, secretary, and treasurer
and who may be excluded by reason of their aforementioned
positions from the benefits of this chapter even though their
duties, responsibilities, activities, or actions may have a dual
capacity of work which is ordinarily performed by an officer and
also of work which is ordinarily performed by a worker, an
administrator, or an employee who is not an officer, no such other officer or assistant officer who is elected or appointed
shall be excluded by election from coverage or be denied the
benefits of this chapter merely because he or she is such an
officer or assistant officer if, as a matter of fact:
(A) He or she is engaged in a dual capacity of having the
duties and responsibilities for work ordinarily performed by an
officer and also having duties and work ordinarily performed by a
worker, administrator, or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties
of a worker, an administrator, or an employee who is not an
officer and receives pay therefor in the capacity of an employee;
or
(C) If he or she is engaged in an employment palpably
separate and distinct from his or her official duties as an
officer of the association or corporation.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the commissioner division
written notice naming the positions not to be covered and shall
not include such "employee's" remuneration for premium purposes
in all future payroll reports, and such partner, proprietor or
corporate or executive officer shall not be deemed an employee
within the meaning of this chapter after such notice has been
served. Notwithstanding the provisions of subsection (g) of section five of this article, if an employer has not subscribed
to the fund even though it is obligated to do so under the
provisions of this article, then any such partner, proprietor or
corporate or executive officer shall not be covered and shall not
receive the benefits of this chapter.
(i) "Regularly employing" or "regular employment" shall
mean employment by an employer which is not a casual employer
under this section.
§23-2-1d. Primary contractor liability; definitions;
applications and exceptions; certificates of good
standing; reimbursement and indemnification;
termination of contracts; effective date;
collections efforts.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article shall
include any primary contractor who regularly subcontracts with
other employers for the performance of any work arising from or
as a result of the primary contractor's own contract: Provided,
That a subcontractor shall not include one providing goods rather
than services. In the event that such a subcontracting employer
defaults on its obligations to make payments to the commissioner,
then such primary contractor shall be liable for such payments.
Notwithstanding the foregoing, nothing contained in this section
shall extend or except to such primary contractor or subcontractors the provisions of sections six, six-a or eight of
this article. This section is applicable only with regards
regard to subcontractors with whom the primary contractor has a
contract for any work or services for a period longer than
thirty-days: Provided, That this section shall also be applicable
to contracts for consecutive periods of work that total more than
thirty days. It is not applicable to the primary contractor with
regard to sub-subcontractors. However, a subcontractor for the
purposes of a contract with the primary contractor can itself
become a primary contractor with regard to other employers with
whom it subcontracts.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the
commissioner, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor
is in good standing with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor shall
result in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premiums premium
taxes, premium deposits, interest and other penalties arising
during the life of the contract or due to work performed in
furtherance of the contract: Provided, That the commissioner division shall be entitled to collect only once for the amount of
premiums, premium deposits and interest due to the default, but
the commissioner division may impose other penalties on the
primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this
section, the primary contractor shall request that the
commissioner of the bureau of employment programs inform the
primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commissioner shall then notify the primary contractor of the
default by placing a notice in the first class United States
mail, postage prepaid, and addressed to the primary contractor at
the address furnished to the commissioner by the primary
contractor. Such mailing shall be good and sufficient notice to
the primary contractor of the subcontractor's default. However,
the primary contractor shall not become liable under this section
until the first day of the calendar quarter following the
calendar quarter in which the notice is given and then such
liability shall only be for that following calendar quarter and
thereafter and only if the subcontract has not been terminated:
Provided, That the commissioner shall be entitled to collect only
once for the amount of premiums, premium deposits and interest due to the default, but the commissioner may impose other
penalties on the primary contractor or on the subcontractor, or
both.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided for in this
section, such default or failure shall be good and sufficient
cause for a primary contractor to hold the subcontractor
responsible and to seek reimbursement or indemnification for any
amounts paid on behalf of the subcontractor to avoid or cure a
workers' compensation default, plus related costs including
reasonable attorneys' fees, and to terminate its subcontract with
the subcontractor notwithstanding any provision to the contrary
in the contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after the first
day of January, one thousand nine hundred ninety-four.
(e) The commissioner division may take any action authorized
by section five-a of this article in furtherance of his or her
its efforts to collect amounts due from the primary contractor
under this section.
§23-2-3. Report forms and other forms for use of employers.
The commissioner division shall prepare and furnish report
forms for the use of, and furnish the same to, employers subject
to this chapter. Every employer receiving from the commissioner
division any form or forms with direction for completion and
returning the same to the division shall return the same, within
the period fixed by the commissioner division, completed so as to
answer fully and correctly all pertinent questions therein
propounded, and if unable to do so, shall give good and
sufficient reasons for such failure. Every employer subject to
the provisions of this chapter, shall make application to the
commissioner division on the forms prescribed by the commissioner
division for such purpose; and any employer who shall terminate
his or her business or for any other reason is no longer subject
to this chapter shall so notify the commissioner division on
forms to be furnished by the commissioner division for that
purpose.
§23-2-4. Classification of industries; rate of premiums;
authority to adopt various systems; accounts.
The commissioner shall distribute into groups or classes the
employments subject to this chapter, in accordance with the
nature of the business and the degree of hazard incident thereto.
And the commissioner shall have power, in like manner, to reclassify such industries into groups or classes at any time,
and to create additional groups or classes. The commissioner may
make necessary expenditures to obtain statistical and other
information to establish the classes provided for in this
section.
The commissioner shall keep an accurate account of all money
or moneys paid or credited to the compensation fund, and of the
liability incurred and disbursements made against same; and an
accurate account of all money or moneys received from each
individual subscriber, and of the liability incurred and
disbursements made on account of injuries and death of the
employees of each subscriber, and of the receipts and incurred
liability of each group or class.
In compensable fatal and total permanent disability cases,
other than occupational pneumoconiosis, the amount charged
against the employer's account shall be such sum as is estimated
to be the average incurred loss of such cases to the fund. The
amount charged against the employer's account in compensable
occupational pneumoconiosis claims for total permanent disability
or for death shall be such sum as is estimated to be the average
incurred loss of such occupational pneumoconiosis cases to the
fund.
It shall be the duty of the commissioner and the
compensation programs performance council to fix and maintain the
lowest possible rates of premiums consistent with the maintenance
of a solvent workers' compensation fund and the creation and
maintenance of a reasonable surplus in each group after providing
for the payment to maturity of all liability incurred by reason
of injury or death to employees entitled to benefits under the
provisions of this chapter. A readjustment of rates shall be
made yearly on the first day of July, or at any time the same
may be necessary. At such times as the commissioner elects to
readjust the base rates for the various industrial
classifications, the commissioner shall file a schedule of the
readjusted base rates for each industrial class with the office
of the secretary of state for publication in the state register
pursuant to article two, chapter twenty-nine-a of this code.
Such schedule shall be so filed at least thirty days prior to the
first day of the quarter to which an adjustment of rates is to be
applicable. At such times as the commissioner elects to readjust
the individual merit rates for the subscribers to the fund, the
commissioner shall provide notice of such merit rate adjustments
to the affected employers at least thirty days prior to the first
day of the quarter to which an adjustment of rates is to be applicable. The commissioner shall not retroactively increase or
decrease rates except in instances of fraud, mistake or reliance
upon incorrect information furnished by the employer. The
determination of the lowest possible rates of premiums within the
meaning hereof and of the existence of any surplus or deficit in
the fund shall be predicated solely upon the experience and
statistical data compiled from the records and files in the
commissioner's office under this and prior workers' compensation
laws of this state for the period from the first day of June, one
thousand nine hundred thirteen, to the nearest practicable date
prior to such adjustment: Provided, That any expected future
return, in the nature of interest or income from invested funds,
shall be predicated upon the average realization from investments
to the credit of the compensation fund for the two years next
preceding. Any reserves set up for future liabilities and any
commutation of benefits shall likewise be predicated solely upon
prior experience under this and preceding workers' compensation
laws and upon expected realization from investments determined by
the respective past periods, as aforesaid.
The commissioner and the compensation programs performance
council may fix a rate of premiums applicable alike to all
subscribers forming a group or class, and such rates shall be determined from the record of such group or class shown upon the
books of the commissioner: Provided, That if any group has a
sufficient number of employers with considerable difference in
their degrees of hazard, the commissioner may fix a rate for
each subscriber of such group, such rate to be based upon the
subscriber's record on the books of the commissioner for a period
not to exceed three years ending the thirty-first day of December
of the year preceding the year in which the rate is to be
effective; and the liability part of such record shall include
such cases as have been acted upon by the commissioner during
such three-year period, irrespective of the date the injury was
received; and any subscriber in a group so rated, whose record
for such period cannot be obtained, shall be given a rate based
upon the subscriber's record for any part of such period as may
be deemed just and equitable by the commissioner; and the
commissioner shall have authority to fix a reasonable minimum and
maximum for any group to which this individual method of rating
is applied, and to add to the rate determined from the
subscriber's record such amount as is necessary to liquidate any
deficit in the schedule as to create a reasonable surplus.
It shall be the duty of the commissioner, when the
commissioner changes any rate, to notify every employer affected thereby of that fact and of the new rate and when the same takes
effect. It shall also be the commissioner's duty to furnish to
each employer yearly, or more often if requested by the employer,
a statement giving the name of each of the employer's employees
who were paid for injury and the amounts so paid during the
period covered by the statement.
(a) The commissioner, in conjunction with the compensation
programs performance council, is authorized to establish by rule
a system for determining the classification and distribution into
classes of employers subject to this chapter, a system for
determining rates of premium taxes applicable to employers
subject to this chapter, a system of multiple policy options with
criteria for subscription thereto, and criteria for an annual
employer's statement providing both benefits liability
information and rate determination information.
(1) In addition, the rule shall provide for, but not be
limited to:
(A) Rate adjustments by industry or individual employer,
including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the
quarter in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Such further matters that are necessary and consistent
with the goals of this chapter;
(2) The rule shall be consistent with the duty of the
commissioner and the compensation programs performance council to
fix and maintain the lowest possible rates of premium taxes
consistent with the maintenance of a solvent workers'
compensation fund and the reduction of any deficit that may exist
in such fund and in keeping with their fiduciary obligations to
the fund;
(3) The rule shall be consistent with generally accepted
accounting principles; and
(4) The rule shall be consistent with classification and
rate making methodologies found in the insurance industry.
(5) The rule shall be consistent with the principles of
promoting more effective workplace health and safety programs as
contained in article two-b, of this chapter.
(b) Notwithstanding any other provision of this chapter to
the contrary, the compensation programs performance council may
elect to premise its premium tax determination methodology on the
aggregate number of hours worked by employees of the employer
rather than upon the gross wages of the employer. Such an
election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in
which this chapter refers to gross wage reports for the purpose
of premium tax determination such references shall be taken to
mean a report of the number of hours so worked.
(c) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of July, one
thousand nine hundred and ninety-six. Until the rule is finally
promulgated the prior provisions of this section as found in
chapter one hundred and seventy-one of the acts of the
Legislature, one thousand nine hundred and ninety-three, shall
remain in effect.
(d) In accordance with generally accepted accounting
principles, the workers' compensation division shall keep an
accurate accounting of all money or moneys earned, due, and
received by the workers' compensation fund, and of the liability
incurred and disbursements made against the same; and an accurate
account of all money or moneys earned, due and received from each
individual subscriber, and of the liability incurred and
disbursements made against the same.
§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 premiums premium
taxes calculated as a percentage of the employer's gross wages
payroll at the rate determined by the commissioner workers'
compensation division and then in effect. At the time each
employer subscribes to the fund, the application required by the
commissioner 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 ten twenty-five dollars.
(1) Thereafter, premiums 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
total earnings 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 and 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 is paid, every subscribing
employer shall make a gross wages payroll report to the
commissioner division for the preceding quarter. The report
shall be on the form or forms prescribed by the commissioner
division, and shall contain all information required by the
commissioner 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 commissioner division may reduce the amount of the premium
deposit required from seasonal employers for those quarters
during which employment is significantly reduced. The premium
deposit shall be credited to the employer's account on the books
of the commissioner division and used to pay premiums and any
other sums due the fund when an employer becomes delinquent or in
default as provided in this article.
(4) All premiums premium taxes and premium deposits required
by this article to be paid by this chapter shall be paid by the
employers to the commissioner, who, division, which shall
maintain a record of all sums so received. On and after the first day of October, one thousand nine hundred ninety-one, any
Any such sum mailed to the commissioner 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 commissioner 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 commissioner 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 commissioner division determines that
such delinquency has been caused by delays in the administration
of the fund. The commissioner division shall, in writing, within sixty days of the end of each quarter notify all delinquent
employers of their failure to timely pay premiums, 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 and ninety-five, shall pay a late
reporting or payment penalty of the greater of fifty dollars or
ten percent of the premium tax due, but not to exceed five
hundred dollars, with such report. 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 premiums, and/or payment of 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 The notification shall also require payment of interest on the delinquent premium payment and/or and premium
deposit pursuant to section thirteen of this article.
(c) Whenever the commissioner division notifies an employer
of the delinquent status of his or her its account, the
notification shall explain the legal consequence of subsequent
default by employers an employer required to subscribe to the
fund and the effects legal consequences of termination of any an
electing employer's account.
(d) Failure by the employer, who is required to subscribe to
the fund and who fails to resolve his or her the delinquency
within the prescribed period, shall place the account in default
and shall deprive such defaulting default employer of the
benefits and protection afforded by this chapter, including
section six of this article, and he or she the employer shall be
liable as provided in section eight of this article. The
defaulting default employer's liability under said sections shall
be retroactive to twelve o'clock p.m., midnight of the last day
of the month following the end of the quarter for which the
delinquency occurs. The commissioner division shall notify the
defaulting default employer of the method by which the employer
may be reinstated with the fund. The commissioner 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 his or her 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 delinquent
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 he or she such employer shall be
liable as provided in section eight of this article. The
defaulting default employer's liability under said section shall
be retroactive to twelve o'clock p.m., 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 commissioner division and payment into the fund of all
unpaid premiums, an adequate premium deposit, and 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
premiums premium taxes to the commissioner division at a penalty
rate. The applicable penalty premium rate 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 commissioner division shall not have the authority to
waive either 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 commissioner 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 commissioner division shall have the authority to
restore a defaulted or terminated employer under through a
reinstatement agreement. Such reinstatement agreement shall
require the payment in full of all premiums 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 commissioner division is authorized to file a lien
against the employer as provided for by section five-a of this
article. In addition, entry into a repayment reinstatement
agreement is discretionary with the commissioner. division. Such
discretion shall be exercised in keeping with the commissioner's
fiduciary obligations owed to the workers' compensation fund.
Should the commissioner division decline to enter into a
repayment reinstatement agreement and should the employer not
comply with the provisions of subdivision (1) of this subsection,
then the commissioner 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
commissioner; 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 payroll 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 the a properly completed and acceptable application which is
accompanied by the application payment is received by the
commissioner: division: Provided, That if the commissioner
division reinstates an employer subject to the terms of a
repayment reinstatement agreement, the subsequent failure of the
employer to make scheduled payments or to pay accrued or future
interest in accordance with the repayment 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 repayment
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 or and the repayment agreement, or
both, 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 his or her its
account in good standing with regard to subsequent premiums
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 agreement, the commissioner 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) No 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, he or she the employer shall be refunded the
balance due him or her the employer of his or her its deposit,
after deducting all amounts owed by him or her the employer to
the workers' compensation fund and other agencies of this state,
and the commissioner division shall notify the employees of such
employer of said termination in such manner as he or she 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 his or her
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 commissioner
division and shall be posted in a conspicuous place at the chief
works of the employer, as the same appear in records of the
commissioner. 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 in
the commissioner's office. 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 not to exceed five hundred one thousand
dollars, and said notice shall state this provision upon its
face. The commissioner 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 commissioner 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 commissioner division, without
just cause or excuse, shall constitute a willful failure or
refusal to perform a duty required of him or her by law within
the meaning of section twenty-eight, article five, chapter sixty-
one of this code. Any person actually injured by reason of such
failure shall have an action against said official, and upon any
official bond he or she may have given, for such damages as such
person may actually have incurred, but not to exceed, in the case
of any surety upon said bond, the amount of the penalty of said
bond. Any official posting said notice as herein required shall
be entitled to the same fee as is now or may hereafter be
provided for the service of process in suits instituted in courts
of record in the state of West Virginia, which fee shall be paid
by the commissioner division out of any funds at his or her its
disposal, but shall be charged by him or her the division against
the account of the employer to whose delinquency such notice
relates.
§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil remedies; creation
and enforcement of lien against employer and
purchaser; duty of secretary of state to register
liens; distraint powers; insolvency proceedings;
secretary of state to withhold certificates of
dissolution; injunctive relief; bond; attorney
fees and costs.
(a) The commissioner workers' compensation division in the
name of the state may commence a civil action against an employer
who, after due notice, defaults in any payment required by this
chapter. If judgment is against the employer, such employer
shall pay the costs of the action. Civil action under this
section shall be given preference on the calendar of the court
over all other civil actions. Upon prevailing in any such civil
action, the commissioner division shall be entitled to recover
his or her its attorneys' fees and costs of action from the
employer.
(b) In addition to the foregoing provisions of this section,
any payment, interest and penalty thereon due and unpaid under
this chapter shall be a personal obligation of the employer
immediately due and owing to the commissioner division and shall,
in addition thereto, be a lien enforceable against all the
property of the employer: Provided, That no such lien shall be enforceable as against a purchaser (including a lien creditor) of
real estate or personal property for a valuable consideration
without notice, unless docketed as provided in section one,
article ten-c, chapter thirty-eight of this code: Provided,
however, That such lien may be enforced as other judgment liens
are enforced through the provisions of chapter thirty-eight of
this code and the same shall be deemed by the circuit court to be
a judgment lien for this purpose.
(c) In addition to all other civil remedies prescribed
herein, the commissioner division may in the name of the state,
after giving appropriate notice as required by due process,
distrain upon any personal property, including intangible
property, of any employer delinquent for any payment, interest
and penalty thereon. If the commissioner division has good
reason to believe that such property or a substantial portion
thereof is about to be removed from the county in which it is
situated, upon giving appropriate notice, either before or after
the seizure, as is proper in the circumstances, he or she the
division may likewise distrain in the name of the state before
such delinquency occurs. For such purpose, the commissioner
division may require the services of a sheriff of any county in
the state in levying such distress in the county in which the sheriff is an officer and in which such personal property is
situated. A sheriff so collecting any payment, interest and
penalty thereon shall be entitled to such compensation as is
provided by law for his or her services in the levy and
enforcement of executions. Upon prevailing in any distraint
action, the commissioner division shall be entitled to recover
his or her its attorneys' fees and costs of action from the
employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter shall be operated in
connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction such
business is operated shall, by the entry of a proper order or
decree in the cause, make provisions, so far as the assets in
administration will permit, for the regular payment of such
payments, interest and penalties as the same become due.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state
or organized under the laws of any other state and admitted to do
business in this state, until notified by the commissioner
division that all payments, interest and penalties thereon against any such corporation which is an employer under this
chapter have been paid or that provision satisfactory to the
commissioner division has been made for payment.
(f) In any case when an employer required to subscribe to
the fund defaults in payments of premium, premium deposits,
penalty, or interest thereon, for as many as two calendar
quarters, which quarters need not be consecutive, and remains in
default after due notice, and the commissioner has been unable to
collect such payments by any of the other civil remedies
prescribed herein, the commissioner division may bring action in
the circuit court of Kanawha county to enjoin such employer from
continuing to carry on the business in which such liability was
incurred: Provided, That the commissioner division may as an
alternative to this action require such delinquent employer to
file a bond in the form prescribed by the commissioner with
satisfactory surety in an amount not less than fifty percent more
than the payments, interest and penalties due.
§23-2-9. Election of employer to be self-insured and to provide
own system of compensation; mandatory participation
in second injury reserve; exceptions; catastrophe
coverage; self administration.
(a) (1) Notwithstanding anything contained in this chapter, employers subject to this chapter who are of sufficient financial
responsibility to ensure the payment of compensation to injured
employees and the dependents of fatally injured employees,
whether in the form of pecuniary compensation or medical
attention, funeral expenses or otherwise as herein provided, of
the value at least equal to the compensation provided in this
chapter, or employers of such financial responsibility who
maintain their own benefit funds, or system of compensation to
which their employees are not required or permitted to
contribute, or such employers as shall furnish bond or other
security to ensure such payments, may, upon a finding of such
facts by the commissioner, elect to pay individually and
directly, or from such benefit funds, department or association,
such compensation and expenses to injured employees or fatally
injured employees' dependents. The commissioner shall require
security or bond from such employer, to be approved by the
commissioner, and of such amount as is by the commissioner
considered adequate and sufficient to compel or secure to such
employees, or their dependents, payment of the compensation and
expenses herein provided for, which shall in no event be less
than the compensation paid or furnished out of the state workers'
compensation fund in similar cases to injured employees or the dependents of fatally injured employees whose employers
contribute to such fund.
(2) Any employer electing under this section to ensure
payment of compensation to injured employees and the dependents
of fatally injured employees shall on or before the last day of
the first month of each quarter, for the preceding quarter, file
with the commissioner a sworn statement of the total earnings of
all the employer's employees subject to this chapter for such
preceding quarter, and shall pay into the workers' compensation
fund as self-insurance premium contributions:
(A) A sum sufficient to pay the employer's proper proportion
of the expenses of the administration of this chapter;
(B) A sum sufficient to pay the employer's proper portion of
the expenses for claims for those employers who are delinquent in
the payment of premiums;
(C) A sum sufficient to pay the employer's fair portion of
the expenses of the disabled workers' relief fund, as may be
determined by the commissioner; and
(D) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter's payment of each of the
foregoing three factors.
(3) The commissioner shall make and promulgate legislative rules in accordance with chapter twenty-nine-a of this code
governing the mode and manner of making application, and the
nature and extent of the proof required to justify the finding
of facts by the commissioner, to consider and pass upon such
election by employers subject to this chapter, which rules shall
be general in their application.
(4) Any employer whose record upon the books of the
commissioner shows a liability against the workers' compensation
fund incurred on account of injury to or death of any of the
employer's employees, in excess of premiums paid by such
employer, shall not be granted the right, individually and
directly or from such benefit funds, department or association,
to compensate the employer's injured employees and the dependents
of the employer's fatally injured employees until the employer
has paid into the workers' compensation fund the amount of such
excess of liability over premiums paid, including the employer's
proper proportion of the liability incurred on account of
explosions, catastrophes or second injuries as defined in section
one, article three of this chapter, occurring within the state
and charged against such fund.
(b) (1) Subject to any limitations set forth herein, all
employers who have heretofore elected, or shall hereafter elect, to pay compensation and expenses directly as provided in
subsection (a) of this section, shall, unless they be permitted
under the provisions of this subsection hereinafter set forth to
give the second injury security or bond hereinafter provided for,
pay into the second injury reserve of the surplus fund referred
to in section one, article three of this chapter, upon the basis
set forth herein, such payments to be made at the same time as
provided in this section for the payment of proportion of
expenses of administration.
(2) To determine the contribution for second injury coverage
for self-insured employers, the commissioner shall first
establish, based upon actuarial advice, the projected funding
cost for incurred losses for the second injury reserve of the
surplus fund for the prospective year for each industrial group
or class, so that industrial groups or classes with significantly
different experience in use of the second injury reserve shall
pay their proper share based upon the record of that industrial
group or class: Provided, That the commissioner shall establish
industrial groups or classes as permitted by section four of this
article but need not establish the same number of industrial
groups or classes as the number established for purposes of
section four of this article. The commissioner shall establish a rate for each industrial group or class based upon the total
expected second injury fund base rate premium for that industrial
group or class and shall further modify such rate for individual
employers based upon the ratio of the individual employer's
record of actual second injury awards to the average cost of
second injury awards for all employers in that industrial group
or class. The commissioner may limit such modifications. Actual
second injury awards shall mean awards made under this chapter on
and after the first day of January, one thousand nine hundred
ninety-one, as reflected on the books of the commissioner for a
period not to exceed three years ending the thirty-first day of
December of the year preceding the year in which the rate is to
be effective: Provided, however, That any employer whose record
for such period cannot be obtained shall be given a rate based
upon the employer's record for any part of such period as may be
deemed just and equitable by the commissioner: Provided further,
That for the period from the first day of January, one thousand
nine hundred ninety-one, through the thirtieth day of June, one
thousand nine hundred ninety-two, inclusive, the commissioner
shall consider second injury premium based on a percentage of the
base rates assigned to each industrial group or class.
(3) In case there be a second injury, as defined in section one, article three of this chapter, to an employee of any
employer making such second injury reserve payments, the employer
shall be liable to pay compensation or expenses arising from or
necessitated by the second injury, and such compensation and
expenses shall be charged against such employer: Provided, That
in addition to such compensation and expenses, and after the
completion of the payments therefor, the employee shall be paid
the remainder of the compensation and expenses that would be due
for permanent total disability from the second injury reserve of
the surplus fund. Such additional compensation and expenses
shall be paid from the second injury reserve of the surplus fund
in the same manner and to the same extent as in the case of
premium-paying subscribers and such additional compensation and
expenses shall not be charged against such employer.
(4) (A) Any employer who has heretofore elected to pay
compensation and expenses directly under the provisions of
subsection (a) of this section, and who:
(i) Elected prior to the first day of January, one thousand
nine hundred eighty-nine, not to make payments into the second
injury reserve of the surplus fund; and
(ii) Continuously without interruption, from the first day
of January, one thousand nine hundred eighty-nine, to the effective date of this section, elected not to make payments into
the second injury reserve of the surplus fund, may elect to
continue not to make payments into the second injury reserve of
the surplus fund.
(B) Any employer who has heretofore elected to pay
compensation and expenses directly under the provisions of
subsection (a) of this section, and who:
(i) Was making payments into the second injury reserve of
the surplus fund on the first day of January, one thousand nine
hundred eighty-nine; and
(ii) Elected not to make such payments during calendar year
one thousand nine hundred eighty-nine; and
(iii) Has not thereafter, to the effective date of this
section, recommenced making such payments, shall elect one of the
two following options:
(I) Begin payments into the second injury reserve of the
surplus fund as of the first day of July, one thousand nine
hundred ninety, in which event such employer shall not thereafter
be permitted to elect not to make such payments; or
(II) Elect to continue not making such payments in which
event the commissioner shall examine the employer's record with
regard to the second injury reserve of the surplus fund upon the books of the commissioner and if such record shows a liability
against the surplus fund incurred on account of injury to any of
the employer's employees, in excess of premiums paid by such
employer to the second injury reserve of the surplus fund, then
such employer shall pay to the commissioner the present value of
that liability.
(C) Any employer who is permitted by paragraphs (A) and (B)
of this subdivision not to make payments into the second injury
reserve of the surplus fund shall, in addition to bond or
security required by subsection (a) of this section, furnish
second injury security or bond, approved by the commissioner, in
such amount and form as the commissioner shall consider adequate
and sufficient to compel or secure payment of all compensation
and expenses arising from, or necessitated by, any second injury
that is or remains to be paid by the employer: Provided, That
any second injury security or bond given by any such employer
pursuant to rules promulgated by the commissioner and with the
approval of the commissioner prior to the effective date of this
section shall remain valid upon the effective date of this
section until such time thereafter as the commissioner notifies
such employer to the contrary.
(D) Any employer permitted by paragraphs (A) and (B) of this subdivision not to make payments into the second injury reserve
of the surplus fund who on or after the effective date of this
section elects to make payments into the second injury reserve of
the surplus fund shall not thereafter be permitted to elect not
to make such payments.
(5) Except as provided in paragraphs (A) and (B),
subdivision (4) of this subsection, all other employers who have
heretofore elected or who henceforth elect to pay compensation
and expenses directly under the provisions of subsection (a) of
this section shall pay into the second injury reserve of the
surplus fund such amounts as are determined by the commissioner
pursuant to subdivision (2), subsection (b) of this section:
Provided, That all such other employers who, as of the date
immediately preceding the effective date of this section, have
been permitted by the commissioner not to make such payments are
not required to commence making such payments until the first day
of July, one thousand nine hundred ninety.
(c) (1) All employers who have heretofore elected, or shall
hereafter elect, to pay compensation and expenses directly as
provided in subsection (a) of this section shall, unless they
give the catastrophe security or bond hereinafter provided for,
pay into the catastrophe reserve of the surplus fund referred to in section one, article three of this chapter, upon the same
basis and in the same percentages, subject to the limitations
herein set forth, as funds are set aside for the maintenance of
the catastrophe reserve of the surplus fund out of payments made
by premium-paying subscribers, such payments to be made at the
same time as hereinbefore provided with respect to payment of
proportion of expenses of administration.
(2) In case there be a catastrophe, as defined in section
one, article three of this chapter, to the employees of any
employer making such payments, the employer shall not be liable
to pay compensation or expenses arising from or necessitated by
the catastrophe, and such compensation and expenses shall not be
charged against such employer, but such compensation and expenses
shall be paid from the catastrophe reserve of the surplus fund in
the same manner and to the same extent as in the case of premium-
paying subscribers.
(3) If an employer elects to make payments into the
catastrophe reserve of the surplus fund as aforesaid, then the
bond or other security required by this section shall be of such
amount as the commissioner considers adequate and sufficient to
compel or secure to the employees or their dependents payments of
compensation and expenses, except any compensation and expenses that may arise from, or be necessitated by, any catastrophe as
defined in section one, article three of this chapter, which last
are secured by and shall be paid from the catastrophe reserve of
the surplus fund as hereinbefore provided.
(4) If any employer elects not to make payments into the
catastrophe reserve of the surplus fund, as hereinbefore
provided, then, in addition to bond or security in the amount
hereinbefore set forth, such employer shall furnish catastrophe
security or bond, approved by the commissioner, in such
additional amount as the commissioner shall consider adequate and
sufficient to compel or secure payment of all compensation and
expenses arising from, or necessitated by, any catastrophe that
might thereafter ensue.
(5) All employers hereafter making application to carry
their own risk under the provisions of this subsection shall,
with such application, make a written statement as to whether
such employer elects to make payments as aforesaid into the
catastrophe reserve of the surplus fund or not to make such
payments and to give catastrophe security or bond hereinbefore in
such case provided for.
(d) In any case under the provisions of this section that
shall require the payment of compensation or benefits by an employer in periodical payments, and the nature of the case makes
it possible to compute the present value of all future payments,
the commissioner may, in his or her discretion, at any time
compute and permit or require to be paid into the workers'
compensation fund an amount equal to the present value of all
unpaid compensation for which liability exists, in trust; and
thereupon such employer shall be discharged from any further
liability upon such award, and payment of the same shall be
assumed by the workers' compensation fund.
(e) Any employer subject to this chapter who shall elect to
carry the employer's own risk and who has complied with the
requirements of this section and the rules of the commissioner
shall not be liable to respond in damages at common law or by
statute for the injury or death of any employee, however
occurring, after such election and during the period that the
employer is allowed by the commissioner to carry the employer's
own risk.
(a) Notwithstanding any provisions of this chapter to the
contrary, the following types of employers may apply for
permission to self-insure their workers' compensation risk
including their risk of catastrophic injuries. Except as
provided for in subsection (e) of this section, no employer may self-insure its second injury risk.
(1) The types of employers are:
(A) any employer who is of sufficient capability and
financial responsibility to ensure the payment to injured
employees and the dependents of fatally injured employees of
benefits provided for in this chapter at least equal in value to
the compensation provided for in this chapter; or
(B) Any employer of such capability and financial
responsibility who maintains its own benefit fund or system of
compensation to which its employees are not required or permitted
to contribute and whose benefits are at least equal in value to
those provided for in this chapter.
(2) In order to be approved for self-insurance status, the
employer must:
(A) have an effective health and safety program at its
workplaces; and
(B) Provide security or bond in an amount to be determined
by the compensation programs performance council which shall
balance the employer's financial condition based upon an analysis
of its audited financial statements and the full accrued value
based upon generally accepted accounting principles of the
employer's existing and expected liability; and
(C) Security or bond which may be in such form as the
commissioner and the compensation programs performance council
created pursuant to section one of article three of chapter
twenty-one-a of this code permits.
(3) Any employer whose record upon the books of the division
shows a liability, as determined on an accrued basis against the
workers' compensation fund incurred on account of injury to or
death of any of the employer's employees, in excess of premiums
paid by such employer, shall not be granted the right,
individually and directly or from such benefit funds or system of
compensation, to be self-insured until the employer has paid into
the workers' compensation fund the amount of such excess of
liability over premiums paid, including the employer's proper
proportion of the liability incurred on account of catastrophes
or second injuries as defined in section one of article three of
this chapter and charged against such fund.
(4) Upon a finding that the employer has met all of the
requirements of this section, the employer may be permitted self-
insurance status. An annual review of each self-insurer's
continuing ability to meet its obligations and the requirements
of this section shall be made by the workers' compensation
division. This review shall include a re-determination of the amount of security or bond which shall be provided by the
employer. Failure to provide any new amount or form of security
or bond may, in the division's discretion, cause the employer's
self-insurance status to be terminated. The security or bond
provided by employers prior to the second day of February, one
thousand nine hundred ninety-five shall continue in full force
and effect until the performance of the employer's annual review
and the entry of any appropriate decision on the amount or form
of the employer's security or bond.
(5) Whenever a self-insured employer shall furnish security
or bond, including replacement and amended bonds and other
securities, as security to ensure the employer's or guarantor's
payment of all obligations under this chapter for which the
security or bond was furnished, such security or bond shall be in
the most current form or forms approved and authorized by the
division for use by the employer or its guarantors, surety
companies, banks, financial institutions or others in its behalf
for such purpose.
(b) Each self-insured employer shall, on or before the last
day of the first month of each quarter, file with the division a
certified statement of the total gross wages and earnings of all
of the employer's employees subject to this chapter for the preceding quarter. Each self-insured employer shall pay into the
workers' compensation fund as portions of its self-insured
premium tax:
(1) A sum sufficient to pay the employer's proper portion of
the expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of
the expense of claims for those employers who are in default in
the payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of
the expenses of the disabled workers' relief fund; and
(4) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter's payment of each of the
foregoing three sums.
(c) The required payments to the employer's injured
employees or dependents of fatally injured employees as benefits
provided for by this chapter including second injury benefits and
catastrophic injury benefits, if applicable, shall constitute the
remaining portion of the self-insurer's premium tax.
(1) If an employer defaults in the payment of any portion of
its self-insured premium taxes, the division may, in an
appropriate case, determine the full accrued value based upon
generally accepted accounting principles of the employer's liability including the costs of all awarded claims and of all
incurred but not reported claims. The amount so determined may
then, in an appropriate case, be assessed against the employer
and the division may demand and collect the present value of such
defaulted tax liability. Interest shall accrue upon the demanded
amount as provided for in section thirteen of this article until
the premium tax is fully paid. Payment of all amounts then due
to the division and to the employer's employees is a sufficient
basis for reinstating the employer to good standing with the
fund.
(2) Such premium tax assessments are special revenue taxes
under and according to the provisions of state workers'
compensation law and are deemed to be tax claims, as priority
claims or administrative expense claims according to those
provisions under the law provided in the United States bankruptcy
code. In addition, as the same was previously intended by the
prior provisions of this section, this amendment and reenactment
is for the purpose of clarification of the taxing authority of
the workers' compensation division.
(d) Each self-insured employer shall elect whether or not to
self-insure its catastrophic injury risk as defined in subsection
(c) of section one of article three of this chapter.
(1) If the employer does not elect to self-insure its
catastrophic risk, then the employer shall pay premium taxes for
this coverage in the same manner as is provided for in section
four of this article and in rules adopted to implement that
section. Until such rules are adopted, the employer's premium
taxes shall be determined in accordance with the provisions of
chapter one hundred seventy-four, acts of the Legislature, one
thousand nine hundred and ninety-one. If the employees of such
an employer suffer injury or death from a catastrophe, then the
payment of the resulting benefits shall be made from the
catastrophe reserve of the surplus fund provided for in
subsection (b) of section one of article three of this chapter.
Such an employer's catastrophic liability shall not be included
in the liabilities upon which the employer's security or bond is
determined in subsection (a) of this section.
(2) If an otherwise self-insured employer elects to self-
insure its catastrophic risk, then the security or bond required
in subsection (a) of this section shall include the liability for
the catastrophic risk.
(e)(1) Any self-insured employer who was, prior to the
second day of February, one thousand nine hundred ninety-five,
permitted to self-insure its second injury risk as defined in subsection (d) of section one of article three of this chapter,
may elect to continue to self-insure its second injury risk for
so long as it meets the requirements of this chapter. Any
employer which was previously permitted to self-insure its second
injury risk who then elects to terminate that self-insurance
status shall not thereafter be permitted to self-insure its
second injury risk.
(2) For those employers previously permitted to self-insure
their second injury risks, the amount of the security or bond
required in subsection (a) of this section shall include the
liability for that risk. All benefits provided for by this
chapter which are awarded to the employer's employees which
constitute second injury life awards shall then be paid by the
employer and not the division.
(3)(A) For those employers which do not self-insure their
second injury risk, the premium tax for second injury coverage
shall be determined by the rules which implement section four of
this article. Such rules may provide for merit rate adjustments
of the amount of premium tax to be paid based upon the accrued
costs to be determined under generally accepted accounting
principles of second injury benefits paid and to be paid to the
employer's employees. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with
the provisions of chapter one hundred seventy four, acts of the
Legislature, one thousand nine hundred ninety-one.
(B) In case there is a second injury to an employee of any
employer making such second injury premium tax payments, the
employer shall be liable to pay compensation or expenses arising
from or necessitated by the second injury and such compensation
and expenses shall be charged against the employer. After the
completion of these payments, the employee shall be paid the
remainder of the compensation and expenses that would be due for
permanent total disability from the second injury reserve of the
surplus fund. Such additional compensation and expenses shall not
be charged against such employer.
(f) The compensation programs performance council may
create, implement, establish, and administer a perpetual self-
insurance security risk pool of funds, sureties, securities,
insurance provided by private insurance carriers or other states'
programs, and other property, of both real and personal
properties, to secure the payment of obligations of self-insured
employers. If such pool is created, the compensation programs
performance council shall adopt rules for the organizational
plan, participation, contributions and other payments which may be required of self-insured employers under this section. The
council, in order to create and fund such a risk pool, may adopt
a rule authorizing the division to assess each self-insured
employer in proportion according to each employer's portion of
the unsecured obligation and liability or to assess according to
some other method provided for by rule which shall properly
create and fund such risk pool to serve the needs of employees,
employers, and the workers' compensation fund by providing
adequate security. The council, in funding such security risk
pool, may authorize the division to use any assessments, premium
tax assessments and revenues and appropriations as may be made
available to the division.
(g) Any self-insured employer which has had a period of
inactivity due to the nonemployment of employees which results in
its reporting of no wages on quarterly reports to the division
for a period of four or more consecutive quarters shall have its
status at the division inactivated and shall be required to apply
for reactivation to status as a self-insured employer prior to
its reemployment of employees. Despite such inactivation, the
self-insured employer shall continue to make payments on all
awards for which it is responsible. Upon application for
reactivation of its status as an operating self-insured employer, the employer must document that it meets the eligibility
requirements needed to maintain self-insured status under this
section and any rules adopted to implement it. If the employer
is unable to requalify and obtain approval for reactivation, the
employer shall, effective with the date of employment of any
employee, become a subscriber to the workers' compensation fund,
but shall continue to be a self-insurer as to the prior period of
active status and to furnish security or bond and meet its prior
self-insurance obligations.
(h) In any case under the provisions of this section that
shall require the payment of compensation or benefits by an
employer in periodical payments and the nature of the case makes
it possible to compute the present value of all future payments,
then the division may, in its discretion, at any time compute and
permit to be paid into the workers' compensation fund an amount
equal to the present value of all unpaid future payments on the
award or awards for which liability exists in trust. Thereafter,
such employer shall be discharged from any further portion of
premium tax liability upon such award or awards and payment of
the award or awards shall be assumed by the division.
(i) Any employer subject to this chapter, who shall elect to
carry the employer's own risk by being self-insured and who has complied with the requirements of this section and of any
applicable rules, shall not be liable to respond in damages at
common law or by statute for the injury or death of any employee,
however occurring, after such election's approval and during the
period that the employer is allowed to carry the employer's own
risk.
§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; enforcement of lien.
(a) If any employer is required to subscribe to the
workers' compensation fund pursuant to section one of this
article and does not elect to provide the employer's own system
of compensation pursuant to section nine of this article, and
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: such
(1) Such employer's premiums, premium taxes, premium
deposits, interest, and claims losses and other payments owed to
the division shall become be due and owing to the commissioner
division upon the execution of the agreement of sale or other transfer.; In addition, any
(2) Any repayment agreement entered into by the employer
with the commissioner 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
commissioner division but not yet paid shall become due.; and
(3) Upon execution of an agreement of sale or other
transfer, as aforesaid, the commissioner division shall continue
to have a lien, as provided for in section five-a of this
article, against all of the other remaining property of the
employer and as well as all of the sold or transferred assets,
which lien shall constitute a personal obligation of the
employer. As used in this section, the term "assets" means all
property of whatever type in which the employer has an interest
including, but not limited to, good will, access to leases such
as the right to sublease, assignment of contracts for the sale of
products, inventory or stock of goods in bulk, or accounts
receivable.
(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;
(3) Liens acquired in the manner described in subdivisions
one and two 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 one of
subsection (f) of 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.
(b) (d) If an employer subject to subsection subsections
(a), (b), or (c) of this section pays to the commissioner
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
commissioner division shall issue a certificate to the employer stating that the employer's account is in good standing with the
commissioner division and that the assets may be sold or
otherwise transferred without the attachment of the
commissioner's 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 commissioner 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 commissioner division and that the assets may
be sold or otherwise transferred without the attachment of the
commissioner's division's lien.
(e) As used in this article, the terms 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) 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 actual business, business assets, customers, clients, contracts, operations, stock
of goods, equipment or substantially all of its employees, then
any liens for payments owed to the commissioner for premiums,
premium deposits, interest or claims losses by the predecessor
employer or any liens held by the commissioner against the
predecessor employer's property shall be extended to the assets
acquired as the result of the sale or transfer by the new
employer and shall be enforceable against such assets by the
commissioner to the same extent as provided for the enforcement
of liens against the predecessor employer pursuant to said
section. As used in this section, the term "assets" is defined
as provided in section fourteen of this article. The foregoing
provisions are expressly intended to impose upon such new
employers the duty of obtaining, prior to the date of such
acquisition, verification from the commissioner that the
predecessor employer's account with the commissioner is in good
standing.
(b) (a) At any time prior to or following the acquisition
described in subsection subsections (a), (b), or (c) of this
section fourteen of this article, the buyer or other recipient
may file a certified petition with the commissioner division
requesting that the commissioner 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 commissioner division shall review the
petition by considering the six seven factors set forth below:
(1) The exact nature of the default;
(2) The amount owed to the commissioner 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; and
(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 commissioner division,
no hearing need be held on the petition. However, any decision
made by the commissioner 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 commissioner's division's publication of a
Class I legal advertisement which complies with the provisions of
article three, chapter fifty-nine of this code. 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 summary of the decision and 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
commissioner division setting forth the objection and the basis
therefor. The publication area shall be Kanawha County, West
Virginia. If any such objection is filed, the commissioner
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.
(c) (b) In the factual situations set forth in subsection (a) of this section subsections (a), (b), or (c) of 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)
of subsection (b) of 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.
§23-3-1. Compensation fund; surplus fund; catastrophe and
catastrophe payment defined; second injury and
second injury reserve; compensation by employers.
(a) The commissioner shall establish a workers' compensation fund from the premiums and other funds paid thereto by employers,
as herein provided, for the benefit of employees of employers who
have paid the premiums applicable to such employers and have
otherwise complied fully with the provisions of section five,
article two of this chapter, and for the benefit, to the extent
elsewhere in this chapter set out, of employees of employers who
have elected, under section nine, article two of this chapter, to
make payments into the surplus fund hereinafter provided for, and
for the benefit of the dependents of all such employees, and for
the payment of the administration expenses of this chapter and
shall promulgate legislative rules pursuant to chapter twenty-
nine-a of this code with respect to the collection, maintenance
and disbursement of such fund not in conflict with the provisions
of this chapter.
(b) A portion of all premiums that shall be paid into the
workers' compensation fund by subscribers not electing to carry
their own risk under section nine, article two of this chapter,
shall be set aside to create and maintain a surplus fund to cover
the catastrophe hazard, the second injury hazard, and all losses
not otherwise specifically provided for in this chapter. The
percentage to be set aside shall be determined by the
commissioner as necessary pursuant to the rules adopted to implement section four of article two of this chapter and shall
be in an amount sufficient to maintain a solvent surplus fund.
All interest earned on investments by the workers' compensation
fund, which is attributable to the surplus fund, shall be
credited to the surplus fund.
(c) A catastrophe is hereby defined as an accident in which
three or more employees are killed or receive injuries, which, in
the case of each individual, consist of: Loss of both eyes or
the sight thereof; or loss of both hands or the use thereof; or
loss of both feet or the use thereof; or loss of one hand and one
foot or the use thereof. The aggregate of all medical and
hospital bills and other costs, and all benefits payable on
account of a catastrophe is hereby defined as "catastrophe
payment". In case of a catastrophe to the employees of an
employer who is an ordinary premium-paying subscriber to the
fund, or to the employees of an employer who, having elected to
carry the employer's own risk under section nine, article two of
this chapter, has heretofore elected, or may hereafter elect, to
pay into the catastrophe reserve of the surplus fund under the
provisions of that section, then the catastrophe payment arising
from such catastrophe shall not be charged against, or paid by,
such employer but shall be paid from the catastrophe reserve of the surplus fund.
(d) (1) If an employee who has a definitely ascertainable
physical impairment, caused by a previous occupational injury,
occupational pneumoconiosis, or occupational disease,
irrespective of its compensability, becomes permanently and
totally disabled through the combined effect of such previous
injury and a second injury received in the course of and as a
result of his or her employment, the employer shall be chargeable
only for the compensation payable for such second injury:
Provided, That in addition to such compensation, and after the
completion of the payments therefor, the employee shall be paid
the remainder of the compensation that would be due for permanent
total disability out of a special reserve of the surplus fund
known as the second injury reserve, created in the manner
hereinbefore set forth. The procedure by which the claimant's
request for a permanent total disability award under this section
is ruled upon shall require that the issue of the claimant's
degree of permanent disability first be determined. Thereafter,
by means of a separate order, a decision shall be made as to
whether the award shall be a second injury award under this
subsection or a permanent total disability award to be charged to
the employer's account or to be paid directly by the employer if the employer has elected to be self-insured under the provisions
of section nine of article two of this chapter.
(2) If an employee of an employer, where the employer has
elected to carry his or her own risk under section nine, article
two of this chapter, and is permitted not to make payments into
the second injury reserve of surplus fund under the provisions of
that section, has a definitely ascertainable physical impairment
caused by a previous occupational injury, occupational
pneumoconiosis, or occupational disease, irrespective of its
compensability, and becomes permanently and totally disabled from
the combined effect of such previous injury and a second injury
received in the course of and as a result of his or her
employment, the employee shall be granted an award of total
permanent disability and his or her employer shall, upon order of
the commissioner, division, compensate the said employee in the
same manner as if the total permanent disability of the employee
had resulted from a single injury while in the employ of such
employer.
(e) Employers electing, as herein provided, to compensate
individually and directly their injured employees and their
fatally injured employees' dependents shall do so in the manner
prescribed by the commissioner, division, and shall make all reports and execute all blanks, forms and papers as directed by
the commissioner division, and as provided in this chapter.
§23-3-4. Disbursements not considered as abandoned property;
interest to be retained.
(a) All disbursements from the workers' compensation fund
and of the other funds created pursuant to this chapter which
might otherwise be presumed to be abandoned and subject to the
custody of the state as unclaimed property under the provisions
of article eight of 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.
(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 credited only to the
account of the workers' compensation fund or to such other
affected fund.
§23-3-5. Authorization to require the electronic invoices and
transfers.
(a) The workers' compensation division is authorized to
establish a program to require the acceptance of disbursements by
electronic transfer from the workers' compensation fund to employers, vendors, and all others lawfully entitled to receive
such disbursements: Provided, That claimants may not be required
to accept such transfers but may elect to do so.
(b) The division is further authorized to establish a
program to require payments of deposits, premiums and other funds
into the workers' compensation fund by electronic transfer of
funds.
(c) The division is further authorized to establish a
program that invoices and other charges against the workers'
compensation fund may be submitted to the division by electronic
means.
(d) Any program authorized by this section must be
implemented through the issuance of a rule pursuant to
subdivisions (b) and (c) of section seven of article three of
chapter twenty-one-a of this code.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1a. Report of injuries by employee.
Every employee who sustains an injury subject to this
chapter, or his or her representative, shall immediately on the
occurrence of such injury or as soon thereafter as practicable
give or cause to be given to the employer or any of his the
employer's agents a written notice of the occurrence of such injury, with like notice or a copy thereof to the commissioner
workers' compensation division stating in ordinary language the
name and address of the employer, the name and address of the
employee, the time, place, nature and cause of the injury, and
whether temporary total disability has resulted therefrom. Such
notice shall be given personally to the employer or any of his
the employer's agents, or may be sent by registered certified
mail addressed to the employer at his the employer's last known
residence or place of business. Such notice may be given to the
commissioner personally or workers' compensation division by
mail.
§23-4-1c. Payment of temporary total disability benefits
directly to claimant; payment of medical benefits;
payments of benefits during protest; right of
division to collect payments improperly made.
(a) In any claim for benefits under this chapter, the
commissioner workers' compensation division shall determine
whether the claimant has sustained a compensable injury within
the meaning of section one of this article and he the division
shall enter an order giving all parties immediate notice of such
decision.
(1) The division may enter an order conditionally approving the claimant's application if the division finds that obtaining
additional medical evidence or evaluations or other evidence
related to the issue of compensability would aid the division in
making a correct final decision. Benefits shall be paid during
the period of conditional approval; however, if the final
decision is one that rejects the claim, then any such payments
shall be considered an overpayment. The division may only
recover the amount of such an overpayment as provided for in
subsection (i) of this section.
(2) In making a determination regarding the compensability
of a newly filed claim or upon a filing for the reopening of a
prior claim pursuant to the provisions of section sixteen of this
article based upon an allegation of recurrence, reinjury,
aggravation, or progression of the previous compensable injury or
in the case of a filing of a request for any other benefits under
the provisions of this chapter, the division shall consider the
date of the filing of the claim for benefits for a determination
of the following:
(A) Whether the claimant had scheduled shutdown beginning
within one week of the date of the filing; or
(B) Whether the claimant received notice within sixty days
of the filing that his or her employment position was to be eliminated, including, but not limited to, the claimant's
worksite, a layoff, or the elimination of the claimant's
employment position; or
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing.
In the event of an affirmative finding upon any of these four
factors, then such finding shall be given probative weight in the
overall determination of the compensability of the claim or of
the merits of the reopening request.
(3) Any party shall have the right to protest object to the
order of the commissioner division and obtain an evidentiary
hearing as provided in section one, article five of this chapter.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided
in section five of this article, the commissioner division may
immediately enter an order commencing the payment of temporary
total disability benefits to the claimant in the amounts provided
for in sections six and fourteen of this article, and the payment
of the expenses provided for in subsection (a), section three of this article, relating to said injury, without waiting for the
expiration of the thirty-day period during which objections may
be filed to such findings as provided in section one, article
five of this chapter. The commissioner division shall enter an
order commencing the payment of temporary total disability or
medical benefits within fifteen days of receipt of either the
employee's or employer's report of injury, whichever is received
sooner, and also upon receipt of either a proper physician's
report or any other information necessary for a determination.
The commissioner division shall give to the parties immediate
notice of any order granting temporary total disability or
medical benefits.
(c) The commissioner division may enter orders granting
temporary total disability benefits upon receipt of medical
evidence justifying the payment of such benefits. In no claim
shall the commissioner division enter an order granting
prospective temporary total disability benefits for a period of
more than ninety days: Provided, That when the commissioner
division determines that the claimant remains disabled beyond the
period specified in the prior order granting temporary total
disability benefits, the commissioner division shall enter an
order continuing the payment of temporary total disability benefits for an additional period not to exceed ninety days, and
shall give immediate notice to all parties of such decision.
(d) Upon receipt of the first report of injury in claim, the
commissioner division shall request from the employer or
employers any wage information necessary for determining the rate
of benefits to which the employee is entitled. If an employer
does not furnish the commissioner division with this information
within fifteen days from the date the commissioner division
received the first report of injury in the case, the employee
shall be paid temporary total disability benefits for lost time
at the rate the commissioner division obtains from reports made
to him or her pursuant to section eleven, article ten, chapter
twenty-one-a of this code. If no such wages have been reported,
then the commissioner division shall make such payments at the
rate he or she believes the division finds would be justified by
the usual rate of pay for the occupation of the injured employee.
The commissioner division shall adjust the rate of benefits both
retroactively and prospectively upon receipt of proper wage
information. The commissioner division shall have access to all
wage information in the possession of any state agency, including
wage information received by the unemployment compensation
division under said chapter, pertinent to such determination.
(e) Upon Subject to the limitations set forth in section
sixteen of this article, upon a finding of the commissioner
division that a claimant who has sustained a previous compensable
injury which has been closed by any order of the commissioner
division, or by the claimant's return to work, suffers further
temporary total disability or requires further medical or
hospital treatment resulting from the compensable injury, the
commissioner division shall immediately enter an order commencing
the payment of temporary total disability benefits to the
claimant in the amount provided for in sections six and fourteen
of this article, and the expenses provided for in subsection (a),
section three of this article, relating to said disability,
without waiting for the expiration of the thirty-day period
during which objections may be filed to such findings as provided
in section one, article five of this chapter. The commissioner
division shall give immediate notice to the parties of his its
order.
(f) Where the employer is a subscriber to the workers'
compensation fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the commissioner
division shall mail all workers' compensation checks paying
temporary total disability benefits directly to the claimant and not to the employer for delivery to the claimant.
(g) Where the employer has elected to carry his its own risk
under section nine, article two of this chapter, and upon the
findings aforesaid, the commissioner division shall immediately
issue a pay order directing the employer to pay such amounts as
are due the claimant for temporary total disability benefits.
A copy of the order shall be sent to the claimant. The self-
insured employer shall commence such payments by mailing or
delivering the payments directly to the employee within ten days
of the date of the receipt of the pay order by the employer. If
the self-insured employer believes that his its employee is
entitled to benefits, he the employer may start payments before
receiving a pay order from the commissioner division.
(h) In the event that an employer files a timely objection
to any order of the commissioner division with respect to
compensability, or any order denying an application for
modification with respect to temporary total disability benefits,
or with respect to those expenses outlined in subsection (a),
section three of this article, the commissioner division shall
continue to pay to the claimant such benefits and expenses during
the period of such disability. Where it is subsequently found by
the commissioner division that the claimant was not entitled to receive such temporary total disability benefits or expenses, or
any part thereof, so paid, the commissioner division shall, when
the employer is a subscriber to the fund, credit said employer's
account with the amount of the overpayment; and, when the
employer has elected to carry its own risk, the commissioner
division shall refund to such employer the amount of the
overpayment. The amounts so credited to a subscriber or repaid
to a self-insurer shall be charged by the commissioner division
to the surplus fund created in section one, article three of this
chapter.
(i) When the employer has protested the compensability or
applied for modification of a temporary total disability benefit
award or expenses and the final decision in such case determines
that the claimant was not entitled to such benefits or expenses,
the amount of such benefits or expenses shall be considered
overpaid. The commissioner division may only recover the amount
of such benefits or expenses by withholding, in whole or in part,
as determined by the commissioner division, future permanent
partial disability benefits payable to the individual in the same
or other claims and credit such amount against the overpayment
until it is repaid in full.
(j) In the event that the commissioner division finds that based upon the employer's report of injury, the claim is not
compensable, the commissioner division shall provide a copy of
such employer's report to the claimant in addition to the order
denying the claim.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the commissioner division makes an award for
permanent partial or permanent total disability, the commissioner
division or self-insured employer shall start payment of benefits
by mailing or delivering the amount due directly to the employee
within fifteen days from the date of the award: Provided, That
the division may withhold payment of the portion of the award
that is the subject of the following subsection until seventy-
seven days have expired without an objection being filed.
(b) On and after the first day of July, one thousand nine
hundred and ninety-five, whenever the division, the office of
judges, or the workers' compensation appeal board enters an order
granting the claimant a permanent total disability award and an
objection or appeal is then filed by the employer or the
division, the division shall begin the payment of monthly
permanent total disability benefits. However, any payment for a
back period of benefits from the onset date of total permanent
disability to the date of the award shall be limited to a period of twelve months of benefits. If, after all litigation is
completed and the time for the filing of any further objections
or appeals to the award has expired, the award of permanent total
disability benefits is upheld, then the claimant shall receive
the remainder of benefits due to him or her based upon the onset
date of total permanent disability that was finally determined.
(c) If the claimant is then owed any additional payment of
back permanent total disability benefits, then the division shall
not only pay the claimant the sum owed but shall also add thereto
interest at the simple rate of six percent per annum from the
date of the initial award granting the total permanent disability
to the date of the final order upholding the award. In the event
that an intermediate order directed an earlier onset date of
permanent total disability than was found in the initial award,
the interest earning period for that additional period shall
begin upon the date of the intermediate award. Any interest
payable shall be charged to the account of the employer or shall
be paid by the employer if it has elected to carry its own risk.
(b) (d) If a timely protest to the award is filed, as
provided in section one or section one-h nine, article five of
this chapter, the commissioner division or self-insured employer
shall continue to pay to the claimant such benefits during the period of such disability unless it is subsequently found by the
commissioner or administrative law judge that the claimant was
not entitled to receive the benefits, or any part thereof, so
paid, in which event the commissioner division shall, where the
employer is a subscriber to the fund, credit said employer's
account with the amount of the overpayment; and, where the
employer has elected to carry the employer's own risk, the
commissioner division shall refund to such employer the amount of
the overpayment. The amounts so credited to a subscriber or
repaid to a self-insurer shall be charged by the commissioner
division to the surplus fund created by section one, article
three of this chapter. If the final decision in any case
determines that a claimant was not lawfully entitled to benefits
paid to him or her pursuant to a prior decision, such amount of
benefits so paid shall be deemed overpaid. The commissioner
division may only recover such amount by withholding, in whole or
in part, as determined by the commissioner, division, future
permanent partial disability benefits payable to the individual
in the same or other claims and credit such amount against the
overpayment until it is repaid in full.
§23-4-3. Schedule of maximum disbursements for medical,
surgical, dental and hospital treatment; legislative approval; guidelines; preferred
provider agreements; charges in excess of scheduled
amounts not to be made; required disclosure of
financial interest in sale or rental of medically
related mechanical appliances or devices;
promulgation of rules to enforce requirement;
consequences of failure to disclose; contract by
employer with hospital, physician, etc.,
prohibited; criminal penalties for violation;
payments to certain providers prohibited; medical
cost and care programs; payments; interlocutory
orders.
(a) The commissioner workers' compensation division shall
establish and alter from time to time as he or she the division
may determine to be appropriate a schedule of the maximum
reasonable amounts to be paid to chiropractic physicians, medical
physicians, osteopathic physicians, podiatrists, optometrists,
vocational rehabilitation specialists, pharmacists,
ophthalmologists and others practicing medicine and surgery,
surgeons, hospitals health care providers, providers of
rehabilitation services, providers of durable medical and other
goods, and providers of other supplies and medically related
items or other persons, firms or corporations for the rendering
of treatment or services to injured employees under this chapter. The commissioner division also, on the first day of each regular
session and also from time to time, as the commissioner the
division may consider appropriate, shall submit the schedule,
with any changes thereto, to the Legislature. The promulgation
of the schedule is not subject to the legislative rule-making
review procedures established in sections nine through sixteen,
article three, chapter twenty-nine-a of this code.
The commissioner division shall disburse and pay from the
fund for such personal injuries to such employees as may be
entitled thereto hereunder as follows:
(1) Such sums for medicines, medical, surgical, dental and
hospital treatment or services, crutches, artificial limbs and
such other and additional approved mechanical appliances and
devices health care services, rehabilitation services, durable
medical and other goods, and other supplies and medically related
items as may be reasonably required. The commissioner division
shall determine that which is reasonably required within the
meaning of this section in accordance with the guidelines
developed by the health care advisory panel pursuant to section
three-b of this article: Provided, That nothing herein shall
prevent the implementation of guidelines applicable to a
particular type of treatment or service or to a particular type of injury before guidelines have been developed for other types
of treatment or services or injuries: Provided, however, That
any guidelines for utilization review which are developed in
addition to the guidelines provided for in said section may be
utilized by the commissioner division until superseded by
guidelines developed by the health care advisory panel pursuant
to said section. Each health care provider who seeks to provide
services or treatment which are not within any such guideline
shall submit to the commissioner division specific justification
for the need for such additional services in the particular case
and the commissioner division shall have the justification
reviewed by a health care professional before authorizing any
such additional services. The commissioner division is
authorized to enter into preferred provider and managed care
agreements.
(2) Payment for such medicine, medical, surgical, dental and
hospital treatment or services, crutches, artificial limbs and
such other and additional approved mechanical appliances and
devices health care services, rehabilitation services, durable
medical and other goods, and other supplies and medically related
items authorized under this subsection may be made to the injured
employee or to the person, firm or corporation who or which has rendered such treatment or furnished any of the items specified
above health care services, rehabilitation services, durable
medical or other goods or other supplies and items, or who has
advanced payment for same, as the commissioner division may deem
proper, but no such payments or disbursements shall be made or
awarded by the commissioner division unless duly verified
statements on forms prescribed by the commissioner division shall
be filed with the commissioner division within two years after
the cessation rendering of such treatment or the delivery of such
appliances goods, supplies or items: Provided, That no payment
hereunder shall be made unless such verified statement shows no
charge for or with respect to such treatment or for or with
respect to any of the items specified above has been or will be
made against the injured employee or any other person, firm or
corporation, and when an employee covered under the provisions of
this chapter is injured in the course of and as a result of his
or her employment and is accepted for medical, surgical, dental
or hospital treatment or services or any mechanical appliances
and devices health care services, rehabilitation services, or the
provision of durable medical or other goods or other supplies or
medically related items, the person, firm or corporation
rendering such treatment is hereby prohibited from making any charge or charges therefor or with respect thereto against the
injured employee or any other person, firm or corporation which
would result in a total charge for the treatment rendered in
excess of the maximum amount set forth therefor in the
commissioner's division's schedule established as aforesaid.
(3) Any pharmacist filling a prescription for medication
for a workers' compensation claimant shall dispense a generic
brand of the prescribed medication if a generic brand exits. If a
generic brand does not exist, then the pharmacist may dispense
the name brand. In the event that a physician wishes to
prescribe the use of the name brand of a given prescription
medication, then he or she must indicate in his or her own
handwriting on the prescription order form that the brand name
medication is to be issued. In the event that a claimant wishes
to receive the name brand medication in lieu of the generic brand
and if the physician has not indicated that the brand name is
required, then the claimant may receive the name brand medication
but, in that event, the claimant will be personally liable for
the difference in costs between the generic brand medication and
the brand name medication.
(4) In the event that a claimant elects to receive health
care services from a health care provider from outside of the state of West Virginia and if that health care provider refuses
to abide by and accept as full payment the reimbursement made by
the workers' compensation division pursuant to the schedule of
maximum reasonable amounts of fees authorized by subsection (a)
of this section, then, with the exceptions noted below, the
claimant will be personably liable for the difference between
the scheduled fee and the amount demanded by the out of state
health care provider.
(A) In the event of an emergency where there is an urgent
need for immediate medical attention in order to prevent the
death of a claimant or to prevent serious and permanent harm to
the claimant, if the claimant receives the emergency care from an
out of state health care provider who refuses to accept as full
payment the scheduled amount, then that claimant will not be
personally liable for the difference between the amount scheduled
and the amount demanded by the health care provider. Upon the
claimant's attaining a stable medical condition and being able to
be transferred to either a West Virginia health care provider or
an out of state health care provider who has agreed to accept the
scheduled amount of fees as payment in full, if such claimant
refuses to seek the specified alternative health care providers,
then he or she will be personally liable for the difference in costs between the scheduled amount and the amount demanded by the
health care provider for services provided after attaining
stability and being able to be transferred.
(B) In the event that there is no health care provider
reasonably near to the claimant's home who is qualified to
provide the claimant's needed medical services and who is either
located in the state of West Virginia or who has agreed to accept
as payment in full the scheduled amounts of fees, then the
division upon application by the claimant may authorize the
claimant to receive medical services from another health care and
such claimant shall not be personally liable for the difference
in costs between the scheduled amount and the amount demanded by
the health care provider.
(b) No chiropractic physician, medical physician,
osteopathic physician, podiatrist or others practicing medicine
or surgery (collectively and individually referred to hereinafter
as "practitioner" or "practitioners") shall refer his or her
patients to the practitioner himself or herself or to a supplier
of mechanical appliances or devices owned in whole or in part by
the practitioner, the practitioner's partnership or professional
corporation, or a member of the practitioner's immediate family
for the purchase or rental of any mechanical appliances or devices which the practitioner has prescribed or recommended to
such patient except upon the terms prescribed by this section.
Examples of mechanical appliances or devices are described as
follows, but these examples are described for illustrative
purposes only and are not intended to limit the range of items
included by this phrase: Hearing aids; crutches; artificial
limbs; oxygen concentrators; and TENS units. For the purposes of
this subsection, the term "practitioner" shall include natural
persons, partnerships and professional corporations.
(1) In order to avoid the bar of this subdivision, a
practitioner shall first disclose to his or her patient the
ownership interest of the practitioner, or of the practitioner's
partnership or professional corporation, or of a member of the
practitioner's immediate family in the entity which would sell
or rent the mechanical appliance or device to the patient. If
the practitioner would sell or rent the mechanical appliance or
device as part of his or her practice and not as a separate legal
entity, the practitioner shall disclose this fact to the patient.
These disclosures must be delivered in writing to the patient.
(2) The commissioner may include in any rules promulgated to
implement this section a requirement that the written notice
disclose to the patient that he or she is free to use any lawful supplier of the mechanical appliance or device prescribed or
recommended and that other suppliers may offer the mechanical
appliance or device for less cost but of equal or better quality
elsewhere and that the patient is encouraged to comparison shop.
The commissioner's rule may also provide for a differing level of
reimbursement to the supplier if the supplier is the practitioner
himself or herself or if the supplier is owned in whole or in
part by the practitioner, the practitioner's partnership or
professional corporation or a member of the practitioner's
immediate family as compared to the reimbursement of a supplier
who is wholly independent from the practitioner.
(3) Failure by a practitioner to comply with the provisions
of this subsection shall cause the practitioner to forfeit his,
her, or its right to reimbursement for the services rendered by
the practitioner to the patient and, if any such services have
previously been reimbursed, the commissioner shall either seek
recovery of such funds by any lawful means or by deducting such
amounts from future payments to the practitioner on account of
services rendered to the same patient or to other claimants of
the workers' compensation fund. In addition, failure by a
practitioner to comply with the provisions of this subsection
shall also result in the denial of payment to the supplier of the mechanical appliance or device if that supplier is one which is
owned in whole or in part by the practitioner, the practitioner's
partnership or professional corporation, or a member of the
practitioner's immediate family. If such supplier has already
been reimbursed for the cost of the pertinent mechanical
appliance or device, then the commissioner shall either seek
recovery of such funds by any lawful means or by deducting such
amounts from future payments to the supplier on account of goods
delivered to the same patient or to other claimants of the
workers' compensation fund.
(c) (b) No employer shall enter into any contracts with any
hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or
surgical attention therein to any employee for injury compensable
within the purview of this chapter, and no employer shall permit
or require any employee to contribute, directly or indirectly,
to any fund for the payment of such medical, surgical, dental or
hospital service within such hospital for such compensable
injury. Any employer violating this section shall be liable in
damages to the employer's employees as provided in section eight,
article two of this chapter, and any employer or hospital or
agent or employee thereof violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be punished by a fine not less than one hundred
dollars nor more than one thousand dollars or by imprisonment not
exceeding one year, or both: Provided, That the foregoing
provisions of this subsection shall not be deemed to prohibit an
employer from participating in a preferred provider organization
or program or a health maintenance organization or managed care
organization or other medical cost containment relationship
with the providers of medical, hospital or other health care:
Provided, however, That nothing in this section shall be deemed
to restrict the right of a claimant to select a his or her
initial health care provider for treatment of a compensable
injury or disease. Should such a claimant thereafter wish to
change his or her health care provider and if his or her employer
has established and maintains a managed health care program
consisting of a preferred provider organization or program, a
health maintenance organization, then the claimant shall select a
new health care provider through such managed care program.
Moreover, if the division enters into an agreement which has been
approved by the compensation programs performance council with a
preferred provider organization or program, a health maintenance
organization or other health care delivery organization or organizations, then if a claimant seeks to change his or her
initial choice of health care provider and if the claimant's
employer does not provide access to such an organization as part
of the employer's general health insurance benefit, then the
claimant shall be provided with a new health care provider from
the division's preferred provider organization or program, health
maintenance organization or other health care delivery
organization or organizations available to him or her.
(d) (c) When an injury has been reported to the commissioner
division by the employer without protest, the commissioner
division may pay, or order an employer who or which made the
election and who or which received the permission mentioned in
section nine, article two of this chapter to pay, within the
maximum amount provided by schedule established by the
commissioner division as aforesaid, bills for medical or hospital
health care services without requiring the injured employee to
file an application for benefits.
(e) (d) The commissioner division shall provide for the
replacement of artificial limbs, crutches, hearing aids,
eyeglasses and all other mechanical appliances provided in
accordance with this section which later wear out, or which later
need to be refitted because of the progression of the injury which caused the same to be originally furnished, or which are
broken in the course of and as a result of the employee's
employment. The fund or self-insured employer shall pay for
these devices, when needed, notwithstanding any time limits
provided by law.
(f) (e) No payment shall be made to a health care provider
who is suspended or terminated under the terms of section three-c
of this article except as provided in subsection (c) of said
section.
(g) (f) The commissioner division is authorized to engage in
and contract for medical cost containment programs, medical case
management programs and utilization review programs. Payments
for these programs shall be made from the supersedeas reserve of
the surplus fund. Any order issued pursuant to any such program
shall be interlocutory in nature until an objecting party has
exhausted all review processes provided for by the commissioner
division.
(h) (g) Notwithstanding the foregoing, the commissioner
division may establish fee schedules, make payments and take
other actions required or allowed pursuant to article
twenty-nine-d, chapter sixteen of this code.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties.
(a) In case the personal injury causes death, reasonable
funeral expense, not to exceed three thousand five hundred
dollars in an amount to be fixed from time to time by the
division, shall be paid from the fund, payment to be made to the
persons who have furnished the services and supplies, or to the
persons who have advanced payment for same, as the commissioner
division may deem proper, in addition to such award as may be
made to the employee's dependents.
(b) A funeral director, or any person who furnished the
services and supplies associated with the funeral expenses, or a
person who has advanced payment for same, is prohibited from
making any charge or charges against the employee's dependents
for funeral expenses which would result in a total charge for
funeral expenses in excess of the amount fixed by the division
unless:
(1) The person seeking funeral expenses notifies, in
writing and prior to the rendering of any service, the employee's
dependent as to the exact cost of the service and the exact
amount the employee's dependent would be responsible for paying
in excess of the amount fixed by the division; and
(2) The person seeking funeral expenses secures, in writing and prior to the rendering of any service, consent from the
employee's dependent that he or she will be responsible to make
payment for the amount in excess of the amount fixed by the
division.
(c) Any person who knowingly and willfully seeks or
receives payment of funeral expenses in excess of the amount
fixed by the division without satisfying both of the requirements
of subsection (b) of this section is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined three thousand
dollars or confined in jail for a definite term of confinement of
twelve months, or both.
§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 weekly
benefits as follows: A 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 the percentage 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.
as follows: On or after the first day of July, one thousand nine
hundred sixty-nine, forty-five percent; on or after the first day
of July, one thousand nine hundred seventy, fifty percent; on or
after the first day of July, one thousand nine hundred seventy-
one, fifty-five percent; on or after the first day of July, one
thousand nine hundred seventy-three, sixty percent; on or after
the first day of July, one thousand nine hundred seventy-four, eighty percent; on or after the first day of July, one thousand
nine hundred seventy-five, one hundred percent.
The minimum weekly benefits paid hereunder shall not be less
than twenty-six dollars per week for injuries occurring on or
after the first day of July, one thousand nine hundred sixty-
nine; not less than thirty-five dollars per week for injuries
occurring on or after the first day of July, one thousand nine
hundred seventy-one; not less than forty dollars per week for
injuries occurring on or after the first day of July, one
thousand nine hundred seventy-three; not less than forty-five
dollars per week for injuries occurring on or after the first day
of July, one thousand nine hundred seventy-four; and for injuries
occurring on or after the first day of July, one thousand nine
hundred seventy-six, thirty-three and one-third percent of the
average weekly wage in West Virginia, except as provided in
section six-d and section nine of this article. In no event,
however, shall such minimum weekly benefits exceed the level of
benefits determined by use of the then applicable federal minimum
hourly wage: Provided, That any claimant receiving permanent
total disability benefits, permanent partial disability benefits
or dependents' benefits prior to the first day of July, one
thousand nine hundred ninety-four, shall not have his or her benefits reduced based upon the requirement herein that the
minimum weekly benefit shall not exceed the applicable federal
minimum hourly wage.
(c) Subdivision (b) of this section shall be limited as
follows: Aggregate award for a single injury causing temporary
disability shall be for a period not exceeding two hundred eight
weeks.
(d) If the injury causes permanent total disability, 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 during the remainder of life 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. at the
maximum or minimum weekly benefits as provided in subdivision (b)
of this section for temporary total disability 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 such date, subject to annual
adjustments for changes in the average weekly wage in West
Virginia: Provided, That the provisions of sections one through
eight of 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, That the claimant must also be at least fifty percent
medically impaired upon a whole body basis. 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 commissioner
division grant an additional permanent disability award to a
claimant receiving a permanent total disability award, or to a claimant who has previously been granted permanent disability
awards totaling eighty-five percent or more and has been granted
a permanent total disability award: Provided, 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.
In any claim in which a claimant aggregates permanent partial
disability awards in the amount of eighty-five percent or more
after the effective date of this subsection, the claimant shall
be entitled to a permanent total disability award unless the
evidence establishes that the claimant is not permanently and
totally disabled pursuant to subdivision (n) of this section.
(e) If (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 following maximum or minimum benefit rates: Seventy percent of
the average weekly wage earnings, wherever earned, of the injured
employee, at the date of injury, not to exceed the percentage of
the average weekly wage in West Virginia, as follows: On or
after the first day of July, one thousand nine hundred sixty-
nine, forty-five percent; on or after the first day of July, one
thousand nine hundred seventy, fifty percent; on or after the
first day of July, one thousand nine hundred seventy-one, fifty-
five percent; on or after the first day of July, one thousand
nine hundred seventy-three, sixty percent; on or after the first
day of July, one thousand nine hundred seventy-five, sixty-six
and two-thirds percent 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 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.
(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 commissioner, with the
following table establishing the minimum percentage of
disability. In determining the percentage of disability, the
commissioner may be guided by, but shall not be limited to, the
disabilities enumerated in the following table, and in no event
shall the disability be less than that 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 commissioner 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 commissioner
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 commissioner division makes the proper award for such
injury, the commissioner 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 of from one percent to eighty-four percent, both
inclusive, 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) The award for permanent disabilities intermediate to
those fixed by the foregoing schedule and permanent disability of
from one percent to eighty-four percent shall be the same
proportion and shall be computed and allowed by the commissioner.
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 degree of disability shall be determined exclusively
by the provisions of that subdivision and that section. The occupational pneumoconiosis board created pursuant to section
eight-a of this section 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
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) The percentage of all permanent disabilities other than
those enumerated in subdivision (f) of this section shall be
determined by the commissioner, and awards made in accordance
with the provisions of subdivision (d) or (e) of this section. Where there has been an injury to a member as distinguished from
total loss by severance of that member, the commissioner in
determining the percentage of disability may be guided by, but
shall not be limited to, the disabilities enumerated in
subdivision (f) of this section.
(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, 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.
(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 decisions,
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.
(l) 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.
In all other cases permanent disability shall be determined
by the commissioner in accordance with the facts in the case and
award made in accordance with the provisions of subdivision (d)
or (e) of this section.
(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 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 percent. Upon filing such an application, the claim
will be reevaluated by the examining board pursuant to
subdivision (j) of this section to determine if he or she has
suffered a whole body medical impairment of fifty percent or more
resulting from either a single occupational injury or
occupational disease or a combination of occupational injuries
and occupational diseases. 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 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 percent, then the request
shall be denied. Upon a finding that the claimant does have a
fifty percent whole body medical impairment, 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 percent 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 a permanent
total disability benefits under the second injury provisions of
subsection (d) of section one, article three of this code, 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 percent whole body medical impairment, 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 sections
six, 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.
§23-4-6a. Benefits and mode of payment to employees and
dependents for occupational pneumoconiosis; further
adjustment of claim for occupational
pneumoconiosis.
If an employee is found to be permanently disabled due to
occupational pneumoconiosis, as defined in section one of this
article, the percentage of permanent disability shall be
determined by the commissioner in accordance with the facts in the case and with the advice and recommendation of degree of
medical impairment that is found by the occupational
pneumoconiosis board. The division shall enter an order setting
forth the findings of the occupational pneumoconiosis board with
regard to whether the claimant has occupational pneumoconiosis
and the degree of medical impairment, if any, resulting
therefrom. That order shall be the final decision of the
division for purposes of section one, article five of this
chapter. If such a decision is objected to, the office of judges
shall affirm the decision of occupational pneumoconiosis board
made following hearing unless the decision is clearly wrong in
view of the reliable, probative and substantial evidence on the
whole record. Compensation shall be paid therefor in the same
manner and at the same rate as is provided for permanent
disability under the provisions of subdivisions (d), (e), (g),
(h), (i), (j), (k), (m) and (n) of the preceding section six of
this article: Provided, That if it shall be determined by the
commissioner division in accordance with the facts in the case
and with the advice and recommendation of the occupational
pneumoconiosis board that an employee has occupational
pneumoconiosis, but without measurable pulmonary impairment
therefrom, such employee shall be awarded and paid twenty weeks of benefits at the same benefit rate as hereinabove provided.
If the employee dies from occupational pneumoconiosis, the
benefits shall be as provided for in section ten of this article;
as to such benefits sections eleven to fourteen, inclusive, of
this article shall apply.
In cases of permanent disability or death due to
occupational pneumoconiosis, as defined in section one of this
article, accompanied by active tuberculosis of the lungs,
compensation shall be payable as for disability or death due to
occupational pneumoconiosis alone.
The provisions of section sixteen, article four and sections
one-a, one-b, one-c and one-d, two, three, four and five, article
five of this chapter providing for the further adjustment of
claims shall be applicable to the claim of any claimant who
receives a permanent partial disability award for occupational
pneumoconiosis.
§23-4-6c. Benefits payable to certain sheltered workshop
employees; limitations.
Notwithstanding the provisions of section six, six-a or six-
b of this article or any other provision of this chapter, the
minimum weekly benefit payments under subsection (b), section one
six of this article shall not apply to employees who work at nonprofit "workshops" as defined in section one, article one,
chapter five-a of this code. When compensation is due any such
employee, the weekly benefits payable hereunder to such employee
may not exceed seventy percent of that employee's actual weekly
wages, and in no event may the average weekly wage in West
Virginia be the basis upon which to compute the benefits of
temporary total disability to employees working for less than the
minimum wage.
§23-4-7. Release of medical information to employer; legislative
findings; effect of application for benefits; duty
of employer.
(a) The Legislature hereby finds and declares that two of
the primary objectives of the workers' compensation system
established by this chapter are to provide benefits to an injured
claimant promptly and to effectuate his or her return to work at
the earliest possible time; that the prompt dissemination of
medical information to the commissioner division and employer as
to diagnosis, treatment and recovery is essential if these two
objectives are to be achieved; that claimants are increasingly
burdened with the task of contacting their treating physicians to
request the furnishing of detailed medical information to the
commissioner division and their employers; that the commissioner division is increasingly burdened with the administrative
responsibility of providing copies of medical reports to the
employer involved, whereas in other states the employer can
obtain the necessary medical information direct from the treating
physician; that much litigation is occasioned in this state
because of a lack of medical information having been received by
the employer as to the continuing disability of a claimant; and
that detailed narrative reports from the treating physician are
often necessary in order for the commissioner division, the
claimant's representatives and the employer to evaluate a claim
and determine whether additional or different treatment is
indicated.
(b) In view of the foregoing findings, on and after the
effective date of this section, a claimant shall irrevocably
agree agrees by the filing of his or her application for benefits
that any physician may release, to the claimant's employer or its
representative, to and orally discuss with the claimant's
employer, or its representative, or with a representative of the
division from time to time to such claimant's employer the
claimant's medical history and any medical reports pertaining to
the occupational injury or disease and to any prior injury or
disease of the portion of the claimant's body to which a medical impairment is alleged containing detailed information as to the
claimant's condition, treatment, prognosis and anticipated period
of disability and dates as to when the claimant will reach or has
reached his maximum degree of improvement or will be or was
released to return to work. For the exclusive purposes of this
chapter, the patient-physician privilege of confidentiality is
waived with regard to the physician's providing this medical
information to the division, the employer, or to the employer's
representative. Whenever a copy of any such medical report is
obtained by the employer or their its representative and the
physician has not also forwarded a copy of the same to the
commissioner division, the employer shall forward a copy of such
medical report to the commissioner division within ten days from
the date such employer received the same from such physician.
§23-4-7a. Monitoring of injury claims; legislative findings;
review of medical evidence; recommendation of
authorized treating physician; independent medical
evaluations; temporary total disability benefits
and the termination thereof; mandatory action;
additional authority.
(a) The Legislature hereby finds and declares that injured
claimants should receive the type of treatment needed as promptly
as possible; that overpayments of temporary total disability benefits with the resultant hardship created by the requirement
of repayment should be minimized; and that to achieve these two
objectives, it is essential that the commissioner division
establish and operate a systematic program for the monitoring of
injury claims where the disability continues longer than might
ordinarily be expected.
(b) In view of the foregoing findings, the commissioner
division, in consultation with medical experts the health care
advisory panel, shall establish guidelines as to the anticipated
period of disability for the various types of injuries. Each
injury claim in which temporary total disability continues beyond
the anticipated period of disability so established for the
injury involved shall be reviewed by the commissioner division.
If satisfied, after reviewing the medical evidence, that the
claimant would not benefit by an independent medical evaluation,
the commissioner division shall mark the claim file accordingly
and shall diary such claim file as to the next date for required
review which shall not exceed sixty days. If the commissioner
division concludes that the claimant might benefit by an
independent medical evaluation, he or she the division shall
proceed as specified in subsections (d) and (e) of this section.
(c) When the authorized treating physician concludes that the claimant has either reached his or her maximum degree of
improvement or is ready for disability evaluation, or when the
claimant has returned to work, such authorized treating physician
may recommend a permanent partial disability award for residual
impairment relating to and resulting from the compensable injury,
and the following provisions shall govern and control:
(1) If the authorized treating physician recommends a
permanent partial disability award of fifteen percent or less,
the commissioner division shall enter an award of permanent
partial disability benefits based upon such recommendation and
all other available information, and the claimant's entitlement
to temporary total disability benefits shall cease upon the entry
of such award unless previously terminated under the provisions
of subsection (e) of this section.
(2) If, however, the authorized treating physician
recommends a permanent partial disability award in excess of
fifteen percent, or recommends a permanent total disability
award, the claimant's entitlement to temporary total disability
benefits shall cease upon the receipt by the commissioner
division of such report and the commissioner division shall refer
the claimant to a physician or physicians of the commissioner's
division's selection for independent evaluation prior to the entry of a permanent disability award: Provided, That unless the
claimant has returned to work, the claimant shall thereupon
receive benefits which shall then be at the permanent partial
disability rate as provided in subdivision (e), section six of
this article until the entry of a permanent disability award or
until the claimant returns to work, and which amount of such
benefits paid prior to the receipt of such report shall be
considered and deemed to be payment of the permanent disability
award then granted, if any. In the event that benefits actually
paid exceed the amount granted by the permanent partial
disability award, claimant shall be entitled to no further
benefits by such award but shall not be liable by offset or
otherwise for the excess paid.
(d) When the commissioner division concludes that an
independent medical evaluation is indicated, or that a claimant
may be ready for disability evaluation in accordance with other
provisions of this chapter, the commissioner division shall refer
the claimant to a physician or physicians of the commissioner's
division's selection for examination and evaluation. If the
physician or physicians so selected recommend continued,
additional or different treatment, the recommendation shall be
relayed to the claimant and the claimant's then treating physician and the recommended treatment may be authorized by the
commissioner division.
(e) Notwithstanding any provision in subsection (c) of this
section, the commissioner division shall enter a notice
suspending the payment of temporary total disability benefits but
providing a reasonable period of time during which the claimant
may submit evidence justifying the continued payment of temporary
total disability benefits when:
(1) The physician or physicians selected by the commissioner
division conclude that the claimant has reached his or her
maximum degree of improvement; or
(2) When the authorized treating physician shall advise the
commissioner division that the claimant has reached his or her
maximum degree of improvement or that he or she is ready for
disability evaluation and when the authorized treating physician
has not made any recommendation with respect to a permanent
disability award as provided in subsection (c) of this section;
or
(3) When other evidence submitted to the commissioner
division justifies a finding that the claimant has reached his or
her maximum degree of improvement: Provided, That in all cases a
finding by the commissioner division that the claimant has reached his or her maximum degree of improvement shall terminate
the claimant's entitlement to temporary total disability benefits
regardless of whether the claimant has been released to return to
work: Provided, however, That under no circumstances shall a
claimant be entitled to receive temporary total disability
benefits either beyond the date the claimant is released to
return to work or beyond the date he or she actually returns to
work.
In the event that the medical or other evidence indicates
that claimant has a permanent disability, unless he or she has
returned to work, the claimant shall thereupon receive benefits
which shall then be at the permanent partial disability rate as
provided in subdivision (e), section six of this article until
entry of a permanent disability award, pursuant to an evaluation
by a physician or physicians selected by the commissioner,
division, or until the claimant returns to work and which amount
of benefits shall be considered and deemed to be payment of the
permanent disability award then granted, if any. In the event
that benefits actually paid exceed the amount granted under the
permanent disability award, claimant shall be entitled to no
further benefits by such order but shall not be liable by offset
or otherwise for the excess paid.
(f) Notwithstanding the anticipated period of disability
established pursuant to the provisions of subsection (b) of this
section, whenever in any claim temporary total disability shall
continue longer than one hundred twenty days from the date of
injury (or from the date of the last preceding examination and
evaluation pursuant to the provisions of this subsection or
pursuant to the directions of the commissioner division under
other provisions of this chapter), the commissioner division
shall refer the claimant to a physician or physicians of the
commissioner's division selection for examination and evaluation
in accordance with the provisions of subsection (d) of this
section and the provisions of subsection (e) of this section
shall be fully applicable: Provided, That the requirement of
mandatory examinations and evaluations pursuant to the provisions
of this subsection (f) shall not apply to any claimant who
sustained a brain stem or spinal cord injury with resultant
paralysis or an injury which resulted in an amputation
necessitating a prosthetic appliance.
(g) The provisions of this section are in addition to and in
no way in derogation of the power and authority vested in the
commissioner division by other provisions of this chapter or
vested in the employer to have a claimant examined by a physician or physicians of the employer's selection and at the employer's
expense, or vested in the claimant or employer to file a protest,
under other provisions of this chapter.
(h) All evaluations and examinations performed by physicians
shall be performed in accordance with the protocols and
procedures established by the health care advisory panel pursuant
to section three-b of this article: Provided, That the physician
may exceed these protocols when additional evaluation is
medically necessary.
§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 commissioner 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. 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) of section six of this article or for any other
reason other than the death of the claimant, then the annuity
shall be cancelled and the proceeds thereof shall remain with the
fund.
§23-4-15. Application for benefits.
(a) To entitle any employee or dependent of a deceased
employee to compensation under this chapter, other than for
occupational pneumoconiosis or other occupational disease, the
application therefor must be made on the form or forms prescribed
by the commissioner division and filed in the office of the
commissioner with the division within two years six months from and after the injury or death, as the case may be, and unless so
filed within such two-year six month period, the right to
compensation under this chapter shall be forever barred, such
time limitation being hereby declared to be a condition of the
right and hence jurisdictional, and all proofs of dependency in
fatal cases must likewise be filed with the commissioner division
within two years six months from and after the death. In case the
employee is mentally or physically incapable of filing such
application, it may be filed by his or her attorney or by a
member of his or her family.
(b) To entitle any employee to compensation for
occupational pneumoconiosis under the provisions hereof, the
application therefor must be made on the form or forms prescribed
by the commissioner division and filed in the office of the
commissioner with the division within three years from and after
the last day of the last continuous period of sixty days or more
during which the employee was exposed to the hazards of
occupational pneumoconiosis or within three years from and after
the employee's occupational pneumoconiosis was made known to him
or her by a physician or which he or she should reasonably have
known, whichever shall last occur, and unless so filed within
such three-year period, the right to compensation under this chapter shall be forever barred, such time limitation being
hereby declared to be a condition of the right and hence
jurisdictional, or, in the case of death, the application shall
be filed as aforesaid by the dependent of such employee within
two years one year from and after such employee's death, and such
time limitation is a condition of the right and hence
jurisdictional.
(c) To entitle any employee to compensation for
occupational disease other than occupational pneumoconiosis under
the provisions hereof, the application therefor must be made on
the form or forms prescribed by the commissioner division and
filed in the office of the commissioner with the division within
three years from and after the day on which the employee was last
exposed to the particular occupational hazard involved or within
three years from and after the employee's occupational disease
was made known to him or her by a physician or which he or she
should reasonably have known, whichever shall last occur, and
unless so filed within such three-year period, the right to
compensation under this chapter shall be forever barred, such
time limitation being hereby declared to be a condition of the
right and hence jurisdictional, or, in case of death, the
application shall be filed as aforesaid by the dependent of such employee within two years one year from and after such employee's
death, and such time limitation is a condition of the right and
hence jurisdictional.
§23-4-15b. Determination of nonmedical questions by division;
claims for occupational pneumoconiosis; hearing.
If a claim for occupational pneumoconiosis benefits be filed
by an employee within three years from and after the last day of
the last continuous period of sixty days exposure to the hazards
of occupational pneumoconiosis, the commissioner division shall
determine whether the claimant was exposed to the hazards of
occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within three
years prior to the filing of his or her claim, whether in the
state of West Virginia the claimant was exposed to such hazard
over a continuous period of not less than two years during the
ten years immediately preceding the date of his or her last
exposure thereto and whether the claimant was exposed to such
hazard over a period of not less than ten years during the
fifteen years immediately preceding the date of his or her last
exposure thereto. If a claim for occupational pneumoconiosis
benefits be filed by an employee within three years from and
after the employee's occupational pneumoconiosis was made known to the employee by a physician or otherwise should have
reasonably been known to the employee, the commissioner division
shall determine whether the claimant filed his or her application
within said period and whether in the state of West Virginia the
claimant was exposed to such hazard over a continuous period of
not less than two years during the ten years immediately
preceding the date of last exposure thereto and whether the
claimant was exposed to such hazard over a period of not less
than ten years during the fifteen years immediately preceding the
date of last exposure thereto. If a claim for occupational
pneumoconiosis benefits be filed by a dependent of a deceased
employee, the commissioner division shall determine whether the
deceased employee was exposed to the hazards of occupational
pneumoconiosis for a continuous period of not less than sixty
days while in the employ of the employer within ten years prior
to the filing of the claim, whether in the state of West Virginia
the deceased employee was exposed to such hazard over a
continuous period of not less than two years during the ten years
immediately preceding the date of his or her last exposure
thereto and whether the claimant was exposed to such hazard over
a period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure thereto. The commissioner division shall also determine such
other nonmedical facts as may in the commissioner's division's
opinion be pertinent to a decision on the validity of the claim.
The commissioner division shall enter an order with respect
to such nonmedical findings within ninety days following receipt
by the commissioner division of both the claimant's application
for occupational pneumoconiosis benefits and the physician's
report filed in connection therewith, and shall give each
interested party notice in writing of these findings with respect
to all such nonmedical facts and such findings and such actions
of the commissioner division shall be final unless the employer,
employee, claimant or dependent shall, within thirty days after
receipt of such notice, object to such findings, and unless an
objection is filed within such thirty-day period, such findings
shall be forever final, such time limitation being hereby
declared to be a condition of the right to litigate such findings
and hence jurisdictional. Upon receipt of such objection, the
commissioner shall set a hearing as provided in section one,
article five of this chapter or the chief administrative law
judge shall set a hearing as provided in section one-h, nine,
article five of this chapter. In the event of an objection to
such findings by the employer, the claim shall, notwithstanding the fact that one or more hearings may be held with respect to
such objection, mature for reference to the occupational
pneumoconiosis board with like effect as if the objection had not
been filed. If the commissioner or administrative law judge
concludes after the protest hearings that the claim should be
dismissed, a final order of dismissal shall be entered, which
final order shall be subject to appeal in accordance with the
provisions of section one or section one-i and section three,
sections ten and twelve, article five of this chapter. If the
commissioner or administrative law judge concludes after such
protest hearings that the claim should be referred to the
occupational pneumoconiosis board for its review, the order
entered shall be interlocutory only and may be appealed only in
conjunction with an appeal from a final order with respect to the
findings of the occupational pneumoconiosis board.
§23-4-16. Division's jurisdiction over case continuous;
modification of finding or order; time limitation
on awards; reimbursement of claimant for expenses;
reopening cases involving permanent total
disability; promulgation of rules.
(a) The power and jurisdiction of the commissioner division
over each case shall be continuing and he the division may, from
time to time, in accordance with the following provisions and after due notice to the employer, make such modifications or
changes with respect to former findings or orders as may be
justified.: Provided, That no further award may be made in fatal
cases arising after the seventh day of March, one thousand nine
hundred twenty-nine, except within two years after the death of
the employee, or in case of nonfatal injuries, on and after the
seventh day of March, one thousand nine hundred twenty-nine,
except within five years after payments for temporary disability
shall have ceased or not more than two times within five years
after the commissioner shall have made the last payment in the
original award or any subsequent increase thereto in any
permanent disability case: Provided, however, That no such
modification or change may be made in any case in which no award
has been made, except within five years after the date of injury:
Provided further, That a further award may be made for medical
benefits only at any time. In any case in which an injured
employee shall make application for a further adjustment of his
claim, if such application be in writing and filed within the
applicable time limit as prescribed herein, the commissioner
shall pass upon and determine the merits of such application
within thirty days after the filing thereof Upon and after the
second day of February, one thousand nine hundred ninety-five, the period in which a claimant may request a modification, change
or reopening of a prior award that was entered either prior to or
after such date shall be determined by the following paragraphs
of this subsection. Any such request that is made beyond such
period shall be refused.
(1) Except as provided in section twenty-two of this
article, in any claim which was closed without the entry of an
order regarding the degree, if any, of permanent disability that
a claimant has suffered, or in any case in which no award has
been made, any such request must be made within five years of the
closure. During that time period, only two such requests may be
filed.
(2) Except as stated below, in any claim in which an award
of permanent disability was made, any such request must be made
within five years of the date of the initial award. During that
time period, only two such requests may be filed. With regard to
those occupational diseases, including occupational
pneumoconiosis, which are medically recognized as progressive in
nature, if any such request is granted by the division, then a
new five year period shall begin upon the date of the subsequent
award. With the advice of the health care advisory panel, the
commissioner and the compensation programs performance council shall by rule designate those progressive diseases which are
customarily the subject of claims.
(3) No further award may be made in fatal cases except
within two years after the death of the employee.
(4) With the exception of the items set forth in subsection
(d) of section three of this article, in any claim wherein
medical or any type of rehabilitation service has not been
rendered or durable medical goods or other supplies have not been
received for a period of five years, then no request for
additional medical or any type of rehabilitation benefits shall
be granted nor shall any such medical or any type of
rehabilitation benefits or any type of goods or supplies be paid
for by the division if such were provided without a prior
request. For the exclusive purposes of this paragraph, medical
services and rehabilitation services shall not include any
encounter in which significant treatment was not performed.
(b) In any claim in which an injured employee shall make
application for a further period of temporary total disability ,
if such application be in writing and filed within the applicable
time limit stated above, then the division shall pass upon the
request within thirty days of the receipt of the request. If the
decision is to grant the request, then the order shall provide for the receipt of temporary total disability benefits. In any
case in which an injured employee shall make application for a
further award of permanent partial disability benefits or for an
award of permanent total disability benefits, if such application
be in writing and filed within the applicable time limit as
stated above, the division shall pass upon the request within
thirty days of its receipt and, if the division determines that
the claimant may be entitled to an award, the division will then
refer the claimant for such further examinations as may be
necessary.
(b) (c) If such application is based on a report of any
medical examination made of the claimant and submitted by the
claimant to the commissioner division in support of his or her
application, and the claim is opened for further consideration
and additional award is later made, the claimant shall be
reimbursed for the expenses of such examination. Such
reimbursement shall be made by the commissioner division to the
claimant, in addition to all other benefits awarded, upon due
proof of the amount thereof being furnished the commissioner
division by the claimant, but shall in no case exceed the sum
fixed pursuant to the commissioner's division's schedule of
maximum reasonable fees established under the provisions of section three of this article.
(c) (d) The commissioner division shall have continuing
power and jurisdiction over claims in which permanent total
disability awards have been made after the effective date of this
section eighth day of April, one thousand nine hundred ninety-
three.
(1) The commissioner division shall continuously monitor
permanent total disability awards and may from time to time,
after due notice to the claimant, reopen a claim for reevaluation
of the continuing nature of the disability and possible
modification of the award: Provided, That such reopenings shall
not be done sooner than every two years: Provided, however, That
any individual claimant shall only be reevaluated a total of two
times after which he or she may not be again reevaluated under
the provisions of this subsection. The commissioner division may
reopen a claim for reevaluation when, in the commissioner's
division's sole discretion, he or she it concludes that there
exists good cause to believe that the claimant no longer meets
the eligibility requirements under subdivision (n), section six
of this article. The eligibility requirements, including any
vocational standards, shall be applied as those requirements are
stated at the time of a claim's reopening.: Provided, That if a permanent total disability award was made on or after the eighth
day of April, one thousand nine hundred ninety-three and on or
before the second day of February, one thousand nine hundred
ninety five, the eligibility requirements for the claimant upon a
reopening shall be the eligibility requirements which applied to
his or her claim at the time the award was made. This section
shall not be applicable to any claim in which the final decision
on the eligibility of the claimant to a permanent total
disability award was made more than ten years prior to the date
of proposed reevaluation.
(2) Upon reopening a claim under this subsection, the
commissioner division may take evidence, have the claimant
evaluated, make findings of fact and conclusions of law and shall
vacate, modify or affirm the original permanent total disability
award as the record requires. The claimant's former employer
shall not be a party to the reevaluation, but shall be notified
of the reevaluation and may submit such information to the
commissioner division as the employer may elect. In the event
the claimant retains his or her award following the reevaluation,
then the claimant's reasonable attorneys' fees incurred in
defending the award shall be paid by the workers' compensation
division from the supersedeas reserve of the surplus fund. In addition, the workers' compensation division shall reimburse a
prevailing claimant for his or her costs in obtaining one
evaluation on each issue during the course of the reevaluation
with such reimbursement being made from the supersedeas reserve
of the surplus fund. The compensation programs performance
council shall adopt criteria for the determination of reasonable
attorneys' fees.
(3) This subsection shall not be applied to awards made
under the provisions of subdivision (m) of section six of this
article. The claimant may seek review of the commissioner's
division's final order as otherwise provided for in article five
of this chapter for review of orders granting or denying
permanent disability awards.
(e) A claimant may have only one active request for a
permanent disability award pending in a claim at any one time.
Any new such request that is made while another is pending shall
be consolidated into the former request.
§23-4-18. Mode of paying benefits generally; exemptions of
compensation from legal process.
Except as provided by this section, compensation shall be
paid only to such employees or their dependents, and shall be
exempt from all claims of creditors and from any attachment, execution or assignment other than compensation to counsel for
legal services, under the provisions of, and subject to the
limitations contained in section five, sixteen, article five of
this chapter, and other than for the enforcement of orders for
child or spousal support entered pursuant to the provisions of
chapters forty-eight and forty-eight-a of this code. Payments
may be made in such periodic installments as determined by the
commissioner division in each case, but in no event less
frequently than semimonthly for any temporary award and monthly
for any permanent award. Payments for permanent disability shall
be paid on or before the third day of the month in which they are
due. In all cases where compensation is awarded or increased,
the amount thereof shall be calculated and paid from the date of
disability.
§23-4-24. Permanent total disability awards; retirement age;
limitations on eligibility and the introduction of
evidence; effects of other types of awards;
procedures; requests for awards; jurisdiction.
Notwithstanding any provision of this chapter to the
contrary, from and after the effective date of this section the
following provisions shall be in effect.
(a) Except (a) Notwithstanding any provision of this chapter to the contrary, except as stated below, no claimant
shall be awarded permanent total disability benefits arising
under subdivision (d) or (n), section six or of section eight-c
of this article who terminates active employment and is receiving
full old-age retirement benefits under the Social Security Act,
42 U.S.C. 401 and 402. Any such claimant shall be evaluated only
for the purposes of receiving a permanent partial disability
award premised solely upon the claimant's impairments. This
subsection shall not be applicable in any claim in which the
claimant has completed the submission of his or her evidence on
the issue of permanent total disability prior to the later of the
following: Termination of active employment or the initial
receipt of full old-age retirement benefits under the Social
Security Act. Once the claimant has terminated active employment
and has begun to receive full old-age social security retirement
benefits, the claimant shall not be permitted to produce
additional evidence of permanent total disability before the
commissioner, division or the office of judges, the appeal board
or the supreme court of appeals nor shall such a claim be
remanded for the production of such evidence.
(b) For the purposes of subdivision (d), subdivisions (d)
and (n), section six of this article, the award of permanent partial disability benefits under the provisions of section six-b
of this article or under that portion of section six-a of this
article which awards twenty weeks of benefits to a claimant who
has occupational pneumoconiosis but without measurable pulmonary
impairment therefrom shall not be counted towards the eighty-five
percent needed to gain the rebuttable presumption of permanent
total disability or towards the fifty percent threshold of
paragraph (1) of subdivision (n) of section six of this article
when such claimant has terminated active employment and is
receiving federal nondisability pension or retirement benefits,
including old-age benefits under the Social Security Act. This
subsection shall not affect any other awards of permanent partial
disability benefits and their use in achieving the rebuttable
eighty-five percent presumption or the fifty percent threshold.
(c) The office of judges shall not have workers'
compensation division shall have the sole and exclusive
jurisdiction to initially hear and decide any claim or request
pertaining in whole or in part to subdivision (d) or (n), section
six of this article. Any claim or request for permanent total
disability benefits arising under said subdivisions shall first
be presented to the commissioner division as part of the initial
claim filing or by way of an application for modification or adjustment pursuant to section sixteen of this article and
section one-a, article five of this chapter. The office of
judges may consider such a claim only after the commissioner
division has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of
disability benefits for wages earned by claimant.
(a) After the effective date of this section eighth day of
April, one thousand nine hundred ninety-three, a reduction in the
amount of benefits as specified in subsection (b) of this section
shall be made whenever benefits are being paid for a permanent
total disability award regardless of when such benefits were
awarded. This section is not applicable to the receipt of
medical benefits or the payment therefor, the receipt of
permanent partial disability benefits, the receipt of benefits
by partially or wholly dependant dependent persons, or to the
receipt of benefits pursuant to the provisions of subsection (e),
section ten of this article. Prior to the application of this
section to any claimant, the commissioner division shall give the
claimant notice of the effect of this section upon a claimant's
award if and when such claimant later earns wages.
(b) Whenever applicable benefits are paid to a claimant with
respect to the same time period in which the claimant has earned wages as a result of his or her employment, the following
reduction in applicable benefits shall be made. The claimant's
applicable monthly benefits and monthly net wages received from
the current employment shall be added together. If such total
exceeds by more than one hundred and twenty percent of the amount
of the claimant's monthly net wages earned during his or her last
employment prior to the award of permanent total disability
benefits, then such excess shall be reduced by one dollar for
each two dollars that the claimant's monthly benefits and monthly
net wages exceed the one hundred and twenty percent level:
Provided, That in no event shall applicable benefits be reduced
below the minimum weekly benefits as provided for in subdivisions
(b) and (d), section six of this article.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-1. Purpose.
The purpose of this article is to establish a fund permit
the establishment of a system to provide insurance coverage for
employers subject to this chapter who may be subjected to
liability under section two, article four of this chapter, for
any excess of damages over the amount received or receivable
under this chapter.
§23-4C-2. Employers' excess liability fund established.
(a) To provide insurance coverage for employers subject to
this chapter who may be subjected to liability for any excess of
damages over the amount received or receivable under this
chapter, there is hereby established a the division may continue
the fund to be known as the employers' excess liability fund,
which fund shall be separate from the workers' compensation fund.
The employers' excess liability fund shall consist of premiums
paid thereto by employers who may voluntarily elect to subscribe
to the fund for coverage of potential liability to any person who
may be entitled to any excess of damages over the amount received
or receivable under this chapter.
(b) The commissioner and the compensation programs
performance council are authorized to provide for, by the
promulgation of a rule pursuant to subdivisions (b) and (c) of
section seven, article three of chapter twenty-one-a of this
code, the continuance, abolition, or sale of the employers'
excess liability fund established by section one of this article
In the event that fund is to be sold, the sale shall be conducted
through the solicitation of competitive bids. Any funds that may
remain after the sale or abolition of the employers' excess
liability fund shall be paid into and become a part of the
workers' compensation fund to be used for the purposes of that fund. In the event that the employer's excess liability fund
program is abolished and the remaining liabilities of that
program exceed the amount retained in the employers' excess
liability fund, such excess liability including the costs of
administration shall be paid for from the workers' compensation
fund.
ARTICLE 5. REVIEW.
§23-5-1. Notice by division of decision; procedures on claims;
objections and hearing; mediation.
(a) The commissioner workers' compensation division shall
have full power and authority to hear and determine all questions
within his or her its jurisdiction. In matters arising under
articles three and four of this chapter, the commissioner or a
designated deputy division shall promptly review and investigate
all claims. The parties to a claim shall file such information
in support of their respective positions as they deem proper. In
addition, the commissioner or a designated deputy division is
authorized to develop such additional information as he or she it
deems to be necessary in the interests of fairness to the parties
and in keeping with the commissioner's the fiduciary obligations
owed to the fund. With regard to any issue which is ready for a
decision, the commissioner or designated deputy division shall explain the basis of his or her its decisions.
(b) Except with regard to interlocutory matters, upon making
any decision, upon the making or refusing to make any award, or
upon the making of any modification or change with respect to
former findings or orders, as provided by section sixteen,
article four of this chapter, the commissioner division shall
give notice, in writing, to the employer, employee, claimant, as
the case may be, of his or her its action, which notice shall
state the time allowed for filing an objection to such finding,
and such action of the commissioner division shall be final
unless the employer, employee, claimant or dependant shall,
within thirty days after the receipt of such notice, object in
writing, to such finding, and unless an objection is filed within
such thirty-day period, such finding or action shall be forever
final, such time limitation being hereby declared to be a
condition of the right to litigate such finding or action and
hence jurisdictional. Any such objection shall be filed with the
office of judges with a copy served upon the commissioner
division and other parties in accordance with the procedures set
forth in sections one-g and one-h eight and nine of this article.
(c) Where a finding or determination of the commissioner
division is protested only by the employer, 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 commissioner division or
office of judges, then such claimant in addition to reasonable
traveling and other expenses shall be reimbursed for loss of
wages incurred by the claimant in attending such hearing.
(d) Once an objection has been filed with the office of
judges, the parties to the objection shall be offered an
opportunity for mediation of the disputed issue by the
commissioner division If all of the parties to the objection
agree to mediation, the commissioner division shall designate a
deputy who was not involved in the original decision to act as
mediator: Provided, That on issues related solely to the
medical necessity of proposed medical treatment or diagnostic
services, the commissioner division shall offer the parties to
the objection a selection of names of medical providers in the
appropriate specialty. The parties shall then either agree upon
a medical provider who shall act as mediator or, in the absence
of an agreement, the commissioner division shall select a medical
provider who shall act as mediator. In cases where issues of
medical necessity are intertwined with nonmedical treatment or
nondiagnostic issues, both a medical provider and a designated deputy shall act as comediators and shall consider their
respective issues. Neither shall be empowered to overturn the
decision of the other.
Upon entering into mediation, the parties shall inform the
office of judges of that action and the office of judges shall
stay further action on the objection.
The mediator shall solicit the positions of the parties and
shall review such additional information as the parties or the
commissioner division shall furnish. The mediator shall then
issue a decision in writing with the necessary findings of fact
and conclusions of law to support that decision. If any party
disagrees with the decision, that party may note its objection to
the office of judges, the commissioner division and the other
parties, and the office of judges shall lift the stay on the
original protest. The decision and any information introduced
during the attempted mediation shall be subject to consideration
by the office of judges in making its decision on the objection.
Upon acceptance by the parties of the result of the mediation,
the office of judges shall dismiss the objection with prejudice.
The mediator shall conduct the mediation in an informal
manner and without regard to the formal rules of evidence and
procedure. Once the parties agree to mediation, then the agreement cannot be withdrawn.
(e) The panel of medical providers who shall serve as
mediators shall be selected and approved by the compensation
programs performance council. A medical provider serving as a
mediator shall have the same protections from liability as does
the commissioner division's employees with regard to his or her
their decisions including coverage by the board of risk
management which shall be provided by the workers' compensation
division.
(f) The division is expressly authorized to amend, correct,
or set aside any order on any issue entered by it which is on its
face defective or clearly erroneous or the result of mistake,
clerical error or fraud. Jurisdiction to take this action shall
continue until the expiration of one hundred and eighty days from
the date of entry of an order unless the order is sooner affected
by appellate action: Provided, That corrective actions in the
case of fraud may be taken at any time.
(g) All objections to orders of the division shall be
styled in the name of the workers' compensation division. All
appeals prosecuted from the office of judges or from the appeal
board shall either be in the name of the workers' compensation
division or shall be against the workers' compensation division. In all such matters, the workers' compensation division shall be
the party in interest.
§23-5-1a.
§23-5-2. Application by employee for further
adjustment of claim -- Objection to modification;
hearing.
In any case where an injured employee makes application in
writing for a further adjustment of his or her claim under the
provisions of section sixteen, article four of this chapter, and
such application discloses cause for a further adjustment
thereof, the commissioner division shall, after due notice to the
employer, make such modifications, or changes with respect to
former findings or orders in such claim as may be justified, and
any party dissatisfied with any such modification or change so
made by the commissioner division shall, upon proper and timely
objection, be entitled to a hearing, as provided in section one
or section one-h nine of this article.
§23-5-1b.
§23-5-3. Refusal to reopen claim; notice; objection.
If, however, in any case in which application for further
adjustment of a claim is filed under the next preceding section,
it shall appear to the commissioner division that such
application fails to disclose a progression or aggravation in the
claimant's condition, or some other fact or facts which were not theretofore considered by the commissioner in his or her division
in its former findings, and which would entitle such claimant to
greater benefits than the claimant has already received, the
commissioner division shall, within a reasonable time, notify the
claimant and the employer that such application fails to
establish a prima facie cause for reopening the claim. Such
notice shall be in writing stating the reasons for denial and the
time allowed for objection to such decision of the commissioner
division. The claimant may, within thirty days after receipt of
such notice, object in writing to such finding and unless the
objection is filed within such thirty-day period, no such
objection shall be allowed, such time limitation being hereby
declared to be a condition of the right to such objection and
hence jurisdictional. Upon receipt of an objection, the
commissioner or office of judges shall afford the claimant an
evidentiary hearing as provided in section one or one-h nine of
this article.
§23-5-1c.
§23-5-4. Application by employer for modification of
award -- Objection to modification; hearing.
In any case wherein an employer makes application in writing
for a modification of any award previously made to an employee of
said employer, and such application discloses cause for a further adjustment thereof, the commissioner division shall, after due
notice to the employee, make such modifications or changes with
respect to former findings or orders in such form as may be
justified, and any party dissatisfied with any such modification
or change so made by the commissioner division, shall upon proper
and timely objection, be entitled to a hearing as provided in
section one or section one-h nine of this article.
§23-5-1d.
§23-5-5. Refusal of modification; notice; objection.
If in any such case it shall appear to the commissioner
division that such the application filed pursuant to section four
of this article fails to disclose some fact or facts which were
not theretofore considered by the commissioner in his or her
division in its former findings, and which would entitle such
employer to any modification of said previous award, the
commissioner division shall, within sixty days from the receipt
of such application, notify the claimant and employer that such
application fails to establish a just cause for modification of
said award. Such notice shall be in writing stating the reasons
for denial and the time allowed for objection to such decision of
the commissioner division. The employer may, within thirty days
after receipt of said notice, object in writing to such decision,
and unless the objection is filed within such thirty-day period, no such objection shall be allowed, such time limitation being
hereby declared to be a condition of the right to such objection
and hence jurisdictional. Upon receipt of such objection, the
commissioner or office of judges shall afford the employer an
evidentiary hearing as provided in section one or section one-h
nine of this article.
§23-5-1e.
§23-5-6. Time periods for objections and appeals;
extensions.
Notwithstanding the fact that the time periods set forth for
objections, protests, and appeals to or from the workers'
compensation appeal board, are jurisdictional, such periods may
be extended or excused upon application of either party within a
period of time equal to the applicable period by requesting an
extension of such time period showing good cause or excusable
neglect, accompanied by the objection, protest, or appeal
petition. In exercising such discretion the commissioner,
administrative law judge, appeal board, or court, as the case may
be, shall consider whether the applicant was represented by
counsel and whether timely and proper notice was actually
received by the applicant or the applicant's representative.
§23-5-1f.
§23-5-7. Compromise and settlement.
(a) After an objection is filed to a commissioner's decision either granting a permanent partial disability award of fifteen
percent or less, or making no award upon a finding that no
permanent partial disability was suffered as the result of the
injury received, the parties may agree to compromise and settle
the award in controversy under the conditions and limitations set
out in this section. In addition, a reopening petition resulting
in an increased permanent partial disability award of fifteen
percent or less may similarly be compromised and settled. No
other types of settlements shall be permitted. The terms of such
settlement shall be reviewed by the administrative law judge as
herein provided.
(b) In any claim involving an employer not electing to carry
its own risk within the meaning of section nine, article two of
this chapter, the parties shall notify the commissioner of their
intent to settle a claim and the commissioner may participate, at
his or her discretion, as a party in interest in any settlement
proceeding under this section.
(c) The parties seeking to settle and compromise an
objection to a commissioner's decision described in subsection
(a) of this section shall jointly file with the chief
administrative law judge a written memorandum of settlement,
signed by all parties in interest. An administrative law judge shall review the written memorandum to determine if it is
reasonable and fair, after giving due consideration to the
interests of all parties, and if it is in conformity with the
provisions of this chapter. The administrative law judge, in his
or her discretion, may hear testimony relating to any proposed
settlement. If the administrative law judge finds the settlement
to be fair and reasonable, he or she shall issue an order so
finding which shall, for all purposes, constitute an order
appealable to the appeal board as provided under sections one and
three of this article. If the settlement is not approved by the
administrative law judge, the settlement agreement between the
parties shall be null and void, and the administrative law judge
shall issue an order so finding which shall be appealable to the
appeal board.
(d) A settlement may provide for a final award of greater
than fifteen percent permanent partial disability: Provided,
That no settlement shall be approved which provides for or would
result in a permanent total disability or second injury life
award.
(e) The amounts of compensation payable under a settlement
may be commuted to one or more lump sum payments by agreement of
the parties.
(f) A party seeking to vacate an order approving a
settlement on the grounds that a settlement was obtained by
fraud, undue influence or coercion shall file a petition therefor
with the office of judges within six months after the date of the
order approving the settlement. The petition shall set forth in
particular the facts upon which the grounds alleged therein are
based and shall be served upon all other parties to the
settlement. Upon request by any party to the settlement, the
chief administrative law judge shall set the matter down for
hearing. At the conclusion thereof, the chief administrative law
judge shall enter an order setting forth his or her findings of
fact and conclusions of law, which order shall be appealable to
the appeal board. Upon a finding, by clear and convincing
evidence, that the settlement was obtained by fraud, undue
influence or coercion, the chief administrative law judge shall
vacate and set aside the order approving the settlement.
(g) A settlement approved by the administrative law judge
shall be final and binding as to the particular award in
controversy but shall not affect any right under article four of
this chapter to future medical benefits, to physical and
vocational rehabilitation, or the right to seek a reopening of
the claim pursuant to section sixteen, article four of this chapter and section one-a of this article.
(h) For matters pending before the commissioner on the first
day of July, one thousand nine hundred ninety, or thereafter, the
foregoing procedures for settlement shall apply except the
commissioner shall act in the place of the administrative law
judge or chief administrative law judge.
With the exception of medical benefits, the claimant and the
employer, with the consent and approval of 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 parties seeking to settle and
compromise an objection to a division decision shall file the
written and executed agreement with the division. The division
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 in exchange for the agreement. If
the division 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. If the employer is not
active in the claim, then the division may negotiate a final
settlement of any and all issues in a claim except for medical benefits with the claimant: Provided, That the agreement must
then be submitted to the office of judges whereupon an
administrative law judge shall undertake the review and make the
assurances provided for above as in the case of an employer and
claimant agreement. Upon the approval of either type of
agreement, the agreement shall be filed with the division's
records, and the filing constitutes a dismissal of any objection
or appeal on the issues agreed to. The division will give notice
of the settlement and dismissal, if necessary, to the office of
judges, the appeal board, or the supreme court of appeals. Once
any such agreement is accepted by the parties and the division,
any issue that is the subject of the agreement shall not be
reopened by either party or by the division. Any such 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. If such 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 employer as
provided for in sections five and five-a, article two of this
chapter.
§23-5-1g.
§23-5-8. Continuation of office of administrative law
judges; powers of chief administrative law judge
and said office.
(a) There is hereby continued within the workers'
compensation appeal board the workers' compensation office of
administrative law judges which shall be referred to as the
office of judges. The workers' compensation office of
administrative law judges previously created pursuant to chapter
twelve, acts of the Legislature, one thousand nine hundred
ninety, second extraordinary session, is hereby continued and designated to be an integral part of the workers' compensation
system of this state. The office of judges shall be under the
supervision of a chief administrative law judge who shall be
appointed by the governor, with the advice and consent of the
Senate. The previously appointed incumbent of that position who
was serving on the second day of February, one thousand nine
hundred ninety-five, shall continue to serve in that capacity
unless subsequently removed as provided for in subsection (b) of
this section.
(b) The chief administrative law judge shall be a person who
has been admitted to the practice of law in this state and shall
also have had at least four years of experience as an attorney.
The chief administrative law judge's salary shall be set by the
appeal board created in section two of this article compensation
programs performance council created in section one, article
three of chapter twenty-one-a of this code. Said salary shall be
within the salary range for comparable chief administrative law
judges as determined by the state personnel board created by
section six, article six of chapter twenty-nine of this code.
The chief administrative law judge may only be removed by a vote
of two thirds of the members of the appeal board compensation
programs performance council and shall not be removed except for official misconduct, incompetence, neglect of duty, gross
immorality, or malfeasance and then only after he or she has been
presented in writing with the reasons for his or her removal and
then only in the manner prescribed in article six-a of chapter
twenty-nine of this code and is given opportunity to respond and
to present evidence. No other provision of this code purporting
to limit the term of office of any appointed official or employee
or affecting the removal of any appointed official or employee
shall be applicable to the chief administrative law judge.
(c) By and with the consent of the commissioner, the chief
administrative law judge shall employ such additional
administrative law judges and other personnel as are necessary
for the proper conduct of a system of administrative review of
orders issued by the commissioner workers' compensation division
which orders have been objected to by a party, and all such
employees shall be in the classified service of the state.
Qualifications, compensation and personnel practice relating to
the employees of the office of judges, other than the chief
administrative law judge, shall be governed by the provisions of
the statutes, rules and regulations of the classified service
pursuant to article six, chapter twenty-nine of this code. All
such additional administrative law judges shall be persons who have been admitted to the practice of law in this state and shall
also have had at least two years of experience as an attorney.
The chief administrative law judge shall supervise the other
administrative law judges and other personnel which collectively
shall be referred to in this chapter as the office of judges.
(d) The administrative expense of the office of judges shall
be included by the appeal board in its within the annual budget
when it submits that budget to the commissioner pursuant to
section two of this article of the workers' compensation
division.
(e) With the advice and consent of the commissioner, on or
before the first day of May, one thousand nine hundred ninety-
one, the appeal board Subject to the approval of the compensation
programs performance council pursuant to subdivisions (b) and (c)
of section seven, article three of chapter twenty-one-a of this
code, the office of judges shall from time to time promulgate
rules of practice and procedure for the hearing and determination
of all objections to findings or orders of the commissioner
workers' compensation division pursuant to section one of this
article. and for the settlement of claims pursuant to section
one-f of this article. Such rules of practice and procedure
shall be promulgated in accordance with the provisions, article three of chapter twenty-nine-a of this code. The appeal board
office of judges shall not have the power to initiate or to
promulgate legislative rules as that phrase is defined in article
three of chapter twenty-nine-a of this code.
(f) On and after the first day of July, one thousand nine
hundred ninety-one, the The chief administrative law judge shall
continue to have the power, which shall be delegated by the
appeal board, to hear and determine all disputed claims in
accordance with the provisions of this article, establish a
procedure for the hearing of disputed claims, take oaths, examine
witnesses, issue subpoenas, establish the amount of witness fees,
keep such records and make such reports as are necessary for
disputed claims, review and approve agreements to compromise and
settle claims involving permanent partial disability awards
permitted by the provisions of section one-f, article five of
this chapter, and exercise such additional powers, including the
delegation of such powers to administrative law judges or hearing
examiners as may be necessary for the proper conduct of a system
of administrative review of disputed claims. The chief
administrative law judge shall make such reports as may be
requested of him or her by the compensation programs performance
council.
(g) Pursuant to the provisions of chapter four, article ten
of this code, the office of judges shall continue to exist until
the first day of July, one thousand nine hundred ninety-six, to
allow for the completion of a preliminary performance review by
the joint committee on government operations.
§23-5-1h. §
23-5-9. Hearings on objections to commissioner's
division decisions by office of administrative law
judges.
On or after the first day of July, one thousand nine hundred
ninety-one, objections Objections to a commissioner's 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
commissioner division 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
employer, the claimant and the commissioner division shall be
notified of such 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 commissioner
division shall be a party to any proceeding under this article.
which involves a claim chargeable against the workers'
compensation fund, the disabled workers' relief fund or such
other fund as may then be under the commissioner's management and
control.
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 commissioner division shall forthwith forward to
the chief administrative law judge all records, or copies of such records, in the commissioner's office 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.
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 one-g eight of this
article. Upon consideration of the entire record, the chief
administrative law judge or an administrative law judge within
the office of judges shall, within thirty days after final
hearing, render a decision affirming, reversing or modifying the
commissioner's division's action. Said decision shall contain
findings of fact and conclusions of law and shall be mailed to
all interested parties.
§23-5-1i.
§23-5-10. Appeal from administrative law judge
decision to appeal board.
The employer, claimant or commissioner workers' compensation
division may appeal to the appeal board created in section two
eleven of this article for a review of a decision by an
administrative law judge. No appeal or review shall lie unless
application therefor be made within thirty days of receipt of
notice of the administrative law judge's final action or in any
event within sixty days of the date of such final action,
regardless of notice and, unless the application for appeal or
review is filed within the time specified, no such appeal or
review shall be allowed, such time limitation being hereby
declared to be a condition of the right of such appeal or review
and hence jurisdictional.
§23-5-2.
§23-5-11. Workers' compensation appeal board --
Generally.
There shall be a board to be known as the "Workers'
Compensation Appeal Board", which shall be referred to in this
article as the "board", to be composed of three members. The
board shall perform the duties and responsibilities assigned to
it by this code consistent with the administrative policies
developed by the governor and the commissioner with the assistance of the compensation programs performance council.
Two members of such board shall be of opposite politics to
the third, and all three shall be citizens of this state who have
resided therein for a period of at least five years. All members
of the board shall be appointed by the governor and shall receive
an annual salary in accordance with the provisions of section
two-a, article seven, chapter six of this code. The salaries
shall be payable in monthly installments, and the members shall
also be entitled to all reasonable and necessary traveling and
other expenses actually incurred while engaged in the performance
of their duties. The governor shall designate one of the members
of the board as chairman thereof, and the board shall meet at the
capitol or at such other places throughout the state as it may
consider proper at regular sessions designated as "Appeal Board
Hearing Days" commencing on the first Tuesday of every month or
the next regular business day, for a period of at least three
days, for the purpose of conducting hearings on appeals, and
continuing as long as may be necessary for the proper and
expeditious transaction of the hearings, decisions and other
business before it. All clerical services required by the board
shall be paid for by the commissioner from any funds at his or
her disposal. The board shall, from time to time, compile and promulgate such rules of practice and procedure as to it shall
appear proper for the prompt and efficient discharge of its
business and such rules shall be submitted first to the
compensation programs performance council for its approval
pursuant to subdivisions (b) and (c) of section seven, article
three of chapter twenty-one-a of this code and, if so approved,
then to the supreme court of appeals for approval, and if
approved by such court shall have the same force and effect as
the approved rules of procedure of circuit courts. The By and
with the consent of the commissioner, the board shall employ such
clerical staff as may be necessary for the efficient conduct of
its business but the number of such employees shall not exceed
four. Salaries of the board, and its employees, and all of its
necessary operating expenses shall be paid from the workers'
compensation fund. The board shall submit its annual budget to
the commissioner for inclusion as a separate item in the budget
estimates prepared by him or her annually and within the limits
of such budget, all expenses of the board shall be by the
requisition of the commissioner. Salaries of the employees of
the board shall be fixed by the board governed by the provisions,
article six, chapter twenty-nine of this code.
The board shall report monthly to the governor and commissioner compensation programs performance council on the
status of all claims on appeal.
§23-5-3.
§2
3-5-12. Appeal to board; procedure; remand and
supplemental hearing.
(a) Any employer, employee, claimant or dependent, who
shall feel aggrieved at any final action of the commissioner or
administrative law judge taken after a hearing held in accordance
with the provisions of section one or section one-h nine of this
article, shall have the right to appeal to the board created in
section two eleven of this article for a review of such action.
The commissioner workers' compensation division shall likewise
have the right to appeal to the appeal board any final action
taken in a proceeding in which he or she is a party by the
administrative law judge. The aggrieved party shall file a
written notice of appeal with the compensation commissioner or,
after the first day of July, one thousand nine hundred
ninety-one, with the office of judges directed to such board,
within thirty days after receipt of notice of the action
complained of, or in any event, regardless of notice, within
sixty days after the date of the action complained of, and unless
the notice of appeal is filed within the time specified, no such
appeal shall be allowed, such time limitation being hereby declared to be a condition of the right to such appeal and hence
jurisdictional; and the commissioner or the office of judges
shall notify the other parties immediately upon the filing of a
notice of appeal. The commissioner or the office of judges shall
forthwith make up a transcript of the proceedings before the
commissioner or the office of judges and certify and transmit the
same to the board. Such certificate shall incorporate a brief
recital of the proceedings therein had and recite each order
entered and the date thereof.
(b) The board shall review the action of the commissioner or
administrative law judge complained of at its next meeting after
the filing of notice of appeal, provided such notice of appeal
shall have been filed thirty days before such meeting of the
board, unless such review be postponed by agreement of parties or
by the board for good cause. The board shall set a time and
place for the hearing of arguments on each claim and shall notify
the interested parties thereof, and briefs may be filed by the
interested parties in accordance with the rules of procedure
prescribed by the board. The board may affirm the order or
decision of the administrative law judge or remand the case for
further proceedings. It shall reverse, vacate or modify the
order or decision of the administrative law judge if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of
the administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) And thereupon, after After a review of the case, the
board shall sustain the finding of the commissioner or
administrative law judge, in which case it need not make findings
of fact or conclusions of law, or enter such order or make such
award as the commissioner or administrative law judge should have
made, stating in writing its reasons therefor, and shall
thereupon certify the same to the commissioner, or workers'
compensation division and chief administrative law judge, who
shall proceed in accordance therewith.
(d) Or, instead Instead of affirming, or reversing or
modifying the decision of the commissioner or administrative law judge as aforesaid, the board may, upon motion of either any
party or upon its own motion, for good cause shown, to be set
forth in the order of the board, remand the case to the
commissioner or chief administrative law judge for the taking of
such new, additional or further evidence as in the opinion of the
board may be necessary for a full and complete development of the
facts of the case. In the event the board shall remand the case
to the commissioner or chief administrative law judge for the
taking of further evidence therein, the commissioner or
administrative law judge shall proceed to take such new,
additional or further evidence in accordance with any instruction
given by the board, and shall take the same within thirty days
after receipt of the order remanding the case, giving to the
interested parties at least ten days' written notice of such
supplemental hearing, unless the taking of evidence shall be
postponed by agreement of parties, or by the commissioner or
administrative law judge for good cause. After the completion of
such supplemental hearing, the commissioner or administrative law
judge shall, within sixty days, render his or her decision
affirming, reversing or modifying the former action of the
commissioner or administrative law judge, which decision shall be
appealable to, and proceeded with by the appeal board in like manner as in the first instance. In addition, upon a finding of
good cause, the board may remand the case to the workers'
compensation division for further development. Any decision made
by the division following such a remand shall be subject to
objection to the office of judges and not to the board. The
board may remand any case as often as in its opinion is necessary
for a full development and just decision of the case. The board
may take evidence or consider ex parte statements furnished in
support of any motion to remand the case to the commissioner or
chief administrative law judge. All evidence taken by or filed
with the board shall become a part of the record. All appeals
from the action of the commissioner or administrative law judge
shall be decided by the board at the same session at which they
are heard, unless good cause for delay thereof be shown and
entered of record. In all proceedings before the board, any
party may be represented by counsel.
§23-5-3a.
§23-5-13. Continuances and supplemental hearings;
claims not to be denied on technicalities.
It is the policy of this chapter that the rights of
claimants for workers' compensation be determined as speedily and
expeditiously as possible to the end that those incapacitated by
injuries and the dependents of deceased workers may receive benefits as quickly as possible in view of the severe economic
hardships which immediately befall the families of injured or
deceased workers. Therefore, the criteria for continuances and
supplemental hearings "for good cause shown" are to be strictly
construed by the commissioner and chief administrative law judge
and their his or her authorized representatives to prevent delay
when granting or denying continuances and supplemental hearings.
It is also the policy of this chapter to prohibit the denial of
just claims of injured or deceased workers or their dependents on
technicalities.
§23-5-3b.
§23-5-14. Disqualification of board members.
In any appeal wherein a board member is a party, or is
interested in the results thereof otherwise than as a general
subscriber to the compensation fund, or he or she is connected
with a contributor therein, or is a beneficiary therein, or is
connected with a beneficiary therein, he or she shall be
disqualified from participating in the hearing and determination
of such appeal.
§23-5-4.
§23-5-15. Appeals from final decisions of board to
supreme court of appeals; procedure; costs.
From any final decision of the board, including any order of
remand, an application for review may be prosecuted by either party, or by the commissioner, or by the workers' compensation
division to the supreme court of appeals within thirty days from
the date thereof by the filing of a petition therefor to such
court against the board and the adverse party (claimant or
employer, as the case may be) or parties as respondents, and
unless the petition for review is filed within such thirty-day
period, no such appeal or review shall be allowed, such time
limitation being hereby declared to be a condition of the right
to such appeal or review and hence jurisdictional; and the clerk
of such court shall notify each of the respondents and the
commissioner workers' compensation division of the filing of such
petition. The board shall, within ten days after receipt of such
notice, file with the clerk of the court the record of the
proceedings had before it, including all the evidence. The court
or any judge thereof in vacation may thereupon determine whether
or not a review shall be granted. And if granted to a
nonresident of this state, he or she shall be required to execute
and file with the clerk before such order or review shall become
effective, a bond, with security to be approved by the clerk,
conditioned to perform any judgment which may be awarded against
him or her thereon. The board may certify to the court and
request its decision of any question of law arising upon the record, and withhold its further proceeding in the case, pending
the decision of court on the certified question, or until notice
that the court has declined to docket the same. If a review be
granted or the certified question be docketed for hearing, the
clerk shall notify the board and the parties litigant or their
attorneys and the commissioner workers' compensation division, of
that fact by mail. If a review be granted or the certified
question docketed, the case shall be heard by the court in the
same manner as in other cases, except that neither the record nor
briefs need be printed. Every such review granted or certified
question docketed prior to thirty days before the beginning of
the term, shall be placed upon the docket for such term. The
attorney general shall, without extra compensation, represent the
board in such cases. The court shall determine the matter so
brought before it and certify its decision to the board and to
the commissioner division. The cost of such proceedings on
petition, including a reasonable attorney's fee, not exceeding
thirty dollars to the claimant's attorney, shall be fixed by the
court and taxed against the employer if the latter be
unsuccessful, and if the claimant, or the commissioner division
(in case the latter be the applicant for review) be unsuccessful,
such costs, not including attorney's fees, shall be taxed against the commissioner division, payable out of any funds available in
his hands the workers' compensation fund, or shall be taxed
against the claimant, in the discretion of the court. But there
shall be no cost taxed upon a certified question.
§23-5-5.
§23-5-16. Fees of attorney for claimant; unlawful
charging or receiving of attorney fees.
On or after the first day of July, one thousand nine hundred
seventy-five, no No attorney's fee in excess of twenty percent of
any award granted shall be charged or received by an attorney for
a claimant or dependent. In no case shall the fee received by
the attorney of such claimant or dependent be in excess of twenty
percent of the benefits to be paid during a period of two hundred
eight weeks. This section shall not apply to any contract for
legal services made prior to the first day of July, one thousand
nine hundred seventy-five: Provided, That the The interest on
disability or dependent benefits as provided for in this chapter
shall not be considered as part of the award in determining any
such attorney's fee. However, any contract entered into in
excess of twenty percent of the benefits to be paid during a
period of two hundred eight weeks, as herein provided, shall be
unlawful and unenforceable as contrary to the public policy of
this state and any fee charged or received by an attorney in violation thereof shall be deemed an unlawful practice and render
the attorney subject to disciplinary action.