H. B. 2417
(By Delegates Louisos and Henderson)
[Introduced March 5, 1997; referred to the
Committee on Finance then the Judiciary.]
A BILL to amend and reenact section one, article two-a, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to shifting
responsibility for subrogation for repayment to worker's
compensation or a self-insured employer, with regard to
medical benefits paid, from the amount received in
settlement by an injured worker to the limits of the
policy of a third-party insurer.
Be it enacted by the Legislature of West Virginia:
That section one, article two-a, chapter twenty-three of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations; effective date.
(a) Where a compensable injury or death is caused, in whole
or in part, by the act or omission of a third party, the injured
worker, or if he or she is deceased or physically or mentally
incompetent, his or her dependents or personal representative
shall be entitled to compensation under the provisions of this
chapter and shall may not by having received same be precluded
from making claim against said the third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or
her personal representative makes a claim against said the third
party and recovers any sum thereby, the commissioner or a
self-insured employer shall be allowed subrogation from the
third party or its insurance with regard to medical benefits paid
as of the date of the recovery: Provided, That under no
circumstances shall may any moneys received by the commissioner
or self-insured employer as subrogation to medical benefits
expended on behalf of the injured or deceased worker exceed
fifty percent of the amount received from the third party as a
result of the claim made by the injured worker, his or her
dependents or personal representative, after payment of
attorney's fees and costs, the policy limits, if applicable, of
the third party insurance, if such exist.
(c) In the event that an injured worker, his or her
dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a
statutory subrogation lien upon such moneys received from the
third party which shall exist in favor of the commissioner or
self-insured employer. Any injured worker, his or her dependents
or personal representative who receives moneys in settlement in
any manner of a claim against a third party shall remain subject
to the subrogation lien until payment in full of the amount
permitted to be subrogated under subsection (b) of this section
is paid.
(d) The right of subrogation granted by the provisions of
this section shall may not attach to any claim arising from a
right of action which arose or accrued, in whole or in part,
prior to the effective date of this article.
NOTE: The purpose of this bill is to shift the burden of
paying the statutory workers' compensation fund lien from an
injured worker to the liable third party when a worker is injured
or killed and receives workers' compensation fund benefits
resulting from the acts or omissions of the third party, and said
worker or his/her heirs later receives some award of money
damages as legal compensation for the worker's injuries or death.
If the third party is insured, the limit of the statutory
workers' compensation fund lien would be the limits of the liable
third party's insurance policy.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.