__________*__________
Saturday, January 29, 2005
The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, January 28, 2005, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Chairman Michael, from the Committee on Finance submitted the following report, which
was received:
Your Committee on Finance has had under further consideration: S. B. 1004, Relating
generally to workers' compensation,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Resolutions Introduced
Mr. Speaker, Mr. Kiss, and Delegate Trump and all other members of the House offered the
following resolution, which was read by its title as follows:
H. R. 1 - "Honoring the contributions of John Mullins to the West Virginia House of
Delegates and particularly, the House Minority Office."
Whereas, John Mullins has served as the only Legislative Analyst for the House Minority since December 1992; and
Whereas, During his tenure as a House staffer, John has been a secret weapon for the House
Republicans in floor maneuvers and speeches; and
Whereas, John is a loving and caring father to his daughter Allie and an outstanding
purveyor of Girl Scout cookies; and
Whereas, John's efforts to promote the State of West Virginia have become legendary
among legislative staffers across the country because of his uncle "Devil Anse"; and
Whereas, John's athletic ability and coaching prowess led the West Virginia Legislative
Bills softball team to their one and only Statehouse Softball League Championship; and
Whereas, John's dedication to the West Virginia House of Delegates has been tested time
and time again by numerous offers to professionally photograph scantily clad models; and
Whereas, John's annual corruption of some of West Virginia's finest college students
resulted in the creation of the infamous "Com-Promise" scholarship program; and
Whereas, John has been the voice of "right" and reason during daily lunch discussions in
the House Finance Committee room; and
Whereas, Although his employment in the House of Delegates for more than a decade has
resulted in obvious follicle disabilities, John is to be commended for not seeking workers'
compensation benefits; and
Whereas, His karaoke renditions of "Lady in Red" at the Carpet Rouge have thrilled many
legislators and legislative staffers; therefore, be it
Resolved by the House of Delegates:
That the Legislature is saddened to lose the talents of John Mullins and wish him well in all
his future endeavors; and, be it
Further Resolved, That the members of this Legislature are confident they are better servants
to the citizens of West Virginia because of John's contributions over the years.
The question now being on the adoption of the resolution, Delegate Trump demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 12), and there were--yeas
93, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent and Not Voting: Ashley, Butcher, Duke, Ellem, Fragale, Hrutkay and Perdue.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (H. R. 1) adopted.
House Calendar
THIRD READING
H. B. 101, Reorganization of the executive branch of state government; on third reading,
coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
On motion of Delegate Staton, S. B. 1004, Relating generally to workers' compensation, on
third reading, with the right to amend, was taken up for further consideration.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, page
twelve, following the enacting clause, by striking out the remainder of the bill and inserting in lieu
thereof the following:
"That §4-11A-2 of the Code of West Virginia, 1931, be amended and reenacted; that §11-9-2
of said Code be amended and reenacted; that §11-10-3 of said Code be amended and reenacted; that
said Code be amended by adding thereto a new article, designated §11-13V-1, §11-13V-2,
§11-13V-3, §11-13V-4, §11-13V-5, §11-13V-6, §11-13V-7, §11-13V-8, §11-13V-9, §11-13V-10,
§11-13V-11, §11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15, §11-13V-16 and §11-13V-17;
that said Code be amended and reenacted by adding thereto a new section, designated §11-21-96;
that §23-1-1, §23-1-1a, §23-1-1b, §23-1-1c, §23-1-1e, §23-1-11, §23-1-13, §23-1-14, §23-1-15,
§23-1-17 and §23-1-19 of said Code be amended and reenacted; that said Code be amended by
adding thereto a new section, designated §23-1-1g; that §23-2-1, §23-2-1d, §23-2-2, §23-2-3, §23-2-
4, §23-2-5, §23-2-5a and §23-2-9 of said Code be amended and reenacted; that §23-2A-1 of said
Code be amended and reenacted; that said Code be amended by adding thereto a new article, designated §23-2C-1, §23-2C-2, §23-2C-3, §23-2C-4, §23-2C-5, §23-2C-6, §23-2C-7, §23-2C-8,
§23-2C-9, §23-2C-10, §23-2C-11, §23-2C-12, §23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16,
§23-2C-17, §23-2C-18, §23-2C-19, §23-2C-20, §23-2C-21, §23-2C-22 and §23-2C-23; that said
Code be amended by adding thereto a new article, designated §23-2D-1, §23-2D-2, §23-2D-3,
§23-2D-4, §23-2D-5, §23-2D-5a, §23-2D-6, §23-2D-7, §23-2D-8, §23-2D-9 and §23-2D-10; that
§23-3-1 and §23-3-4 of said Code be amended and reenacted; that §23-4-1b, §23-4-1c, §23-4-1d,
§23-4-1e, §23-4-3, §23-4-3b, §23-4-4, §23-4-6, §23-4-6a, §23-4-6b, §23-4-7, §23-4-7a, §23-4-7b,
§23-4-8, §23-4-8a, §23-4-8b, §23-4-8c, §23-4-9, §23-4-10, §23-4-11, §23-4-12, §23-4-14, §23-4-15,
§23-4-15a, §23-4-15b, §23-4-16, §23-4-16a, §23-4-17, §23-4-20, §23-4-24 and §23-4-25 of said
Code be amended and reenacted; that §23-4A-1 and §23-4A-4 of said Code be amended and
reenacted; that said Code be amended by adding thereto a new section, designated §23-4A-9; that
said Code be amended by adding thereto a new section, designated §23-4B-9; that §23-4C-5 of said
Code be amended and reenacted; that said Code be amended by adding thereto a new section,
designated §23-4C-6; that §23-5-1, §23-5-2, §23-5-3, §23-5-4, §23-5-5, §23-5-7, §23-5-8, §23-5-9,
§23-5-10, §23-5-11, §23-5-12 and §23-5-15 of said Code be amended and reenacted; that
§29-22A-10 and §29-22A-10b of said Code be amended and reenacted; that §33-1-2 and §33-1-10
of said Code be amended and reenacted; that §33-2-10 and §33-2-20 of said Code be amended and
reenacted; that §33-41-2, §33-41-8 and §33-41-11 of said Code be amended and reenacted; and that
§61-3-24e, §61-3-24f, §61-3-24g and §61-3-24h of said Code be amended and reenacted, all to read
as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT
MONEYS.
§4-11A-2. Receipt of settlement funds and required deposit in West Virginia tobacco
settlement medical trust fund until June 1, 2005, then to workers'
compensation deficit reduction fund.
(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the state's health related programs and delivery systems. It
further finds and declares that these dedicated revenues should be preserved in trust for the purpose
of educating the public about the health risks associated with tobacco usage and establishing a
program designed to reduce and stop the use of tobacco by the citizens of this state and in particular
by teenagers.
(b) There is hereby created a special account in the state treasury, designated the "West
Virginia Tobacco Settlement Medical Trust Fund", which shall be an interest-bearing account and
may be invested in the manner permitted by section nine, article six, chapter twelve of this code, with
the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all
revenues received pursuant to the master settlement agreement shall be deposited in this fund. Funds
paid into the account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which may be received from any
governmental entity or unit or any person, firm, foundation or corporation;
(3) Any appropriations by the Legislature which may be made for this purpose; and
(4) Any funds or accrued interest remaining in the board of risk and insurance management
physicians' mutual insurance company account created pursuant to section seven, article twenty-f,
chapter thirty-three of this code on or after the first day of July, two thousand four.
(c) The moneys from the principal in the trust fund may not be expended for any purpose,
except that on the first day of April, two thousand three, the treasurer shall transfer to the board of
risk and insurance management physicians' mutual insurance company account created by section
seven, article twenty-f, chapter thirty-three of this code, twenty-four million dollars from the West
Virginia tobacco settlement medical trust fund for use as the initial capital and surplus of the
physicians' mutual insurance company created pursuant to article twenty-f, chapter thirty-three of this
code. The remaining moneys in the trust fund resulting from interest earned on the moneys in the
fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the
provisions of section three of this article.
(d) Notwithstanding the preceding subsections to the contrary, the first thirty million dollars
of all revenues received after the thirtieth day of June, two thousand five, pursuant to section
IX(c)(1) of the tobacco master settlement agreement shall in the fiscal year beginning the first day
of July, two thousand five, and each fiscal year thereafter, be deposited in the workers' compensation
debt reduction fund established in the state treasury in section five, article two-d, chapter twenty-
three of this code. Receipts in excess of thirty million dollars shall be deposited as provided in
section three of this article.
(e) Notwithstanding anything in this code to the contrary, strategic compensation payments
received pursuant to section IX(c)(2) of the tobacco master settlement agreement, beginning in two
thousand eight, shall be deposited in their entirety in the workers' compensation debt reduction fund.
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following taxes imposed by this chapter:
(1) Inheritance and transfer taxes and estate taxes imposed by article eleven of this chapter;
(2) Business registration tax imposed by article twelve of this chapter;
(3) Minimum severance tax on coal imposed by article twelve-b of this chapter;
(4) Corporate license tax imposed by article twelve-c of this chapter;
(5) Business and occupation tax imposed by article thirteen of this chapter;
(6) Severance and business privilege tax taxes imposed by article thirteen-a of this chapter;
(7) Additional severance taxes imposed by article thirteen-v of this chapter;
(8) Telecommunications tax imposed by article thirteen-b of this chapter;
(8) (9) Gasoline and special fuels excise tax imposed by article fourteen of this chapter;
(9) (10) Motor fuels excise tax imposed by article fourteen-c of this chapter;
(10) (11) Motor carrier road tax imposed by article fourteen-a of this chapter;
(11) (12) Interstate fuel tax agreement authorized by article fourteen-b of this chapter;
(12) (13) Consumers sales and service tax imposed by article fifteen of this chapter;
(13) (14) Use tax imposed by article fifteen-a of this chapter;
(14) (15) Tobacco products excise tax taxes imposed by article seventeen of this chapter;
(15) (16) Soft drinks tax imposed by article nineteen of this chapter;
(16) (17) Personal income tax imposed by article twenty-one of this chapter;
(17) (18) Business franchise tax imposed by article twenty-three of this chapter;
(18) (19) Corporation net income tax imposed by article twenty-four of this chapter; and
(19) (20) Health care provider tax taxes imposed by article twenty-seven of this chapter.
(b) The provisions of this article also apply to the West Virginia tax procedure and
administration act in article ten of this chapter and to any other articles of this chapter when
application is expressly provided for by the Legislature.
(c) The provisions of this article also apply to municipal sales and use taxes imposed pursuant
to article thirteen-c, chapter eight of this code; the charitable bingo fee imposed by sections six and
six-a, article twenty, chapter forty-seven of this code; the charitable raffle fee imposed by section
seven, article twenty-one of said chapter; and the charitable raffle boards and games fees imposed
by section three, article twenty-three of said chapter.
(d) Each and every provision of this article applies to the articles of this chapter listed in
subsections (a), (b) and (c) of this section, with like effect, as if the provisions of this article were
applicable only to the tax and were set forth in extenso in this article.
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-3. Application of this article.
(a) The provisions of this article apply to inheritance and transfer taxes, estate tax and
interstate compromise and arbitration of inheritance and death taxes, business registration tax, annual
tax on incomes of certain carriers, minimum severance tax on coal, corporate license tax, business and occupation tax, severance tax, additional severance taxes, telecommunications tax, interstate fuel
tax, consumers sales and service tax, use tax, tobacco products excise tax taxes, soft drinks tax,
personal income tax, business franchise tax, corporation net income tax, gasoline and special fuels
excise tax, motor fuels excise tax, motor carrier road tax, health care provider tax taxes and tax relief
for elderly homeowners and renters administered by the state tax commissioner. This article shall
not apply to ad valorem taxes on real and personal property or any other tax not listed in this section,
except that in the case of ad valorem taxes on real and personal property, when any return, claim,
statement or other document is required to be filed, or any payment is required to be made within
a prescribed period or before a prescribed date, and the applicable law requires delivery to the office
of the sheriff of a county of this state, the methods prescribed in section five-f of this article for
timely filing and payment to the tax commissioner or state tax department are the same methods
utilized for timely filing and payment with the sheriff.
(b) The provisions of this article apply to beer barrel tax levied by article sixteen of this
chapter; and to wine liter tax levied by section four, article eight, chapter sixty of this code.
(c) The provisions of this article apply to any other article of this chapter when the
application is expressly provided for by the Legislature.
(d) The provisions of this article apply to municipal sales and use taxes imposed under article
thirteen-c, chapter eight of this code and collected by the tax commissioner.
ARTICLE 13V. WORKERS' COMPENSATION DEBT REDUCTION ACT.
§11-13V-1. Short title.
This article may be cited as the "Workers' Compensation Debt Reduction Act of 2005". No
inference, implication or presumption of legislative construction shall be drawn or made by reason
of the location or grouping of any particular section or provision or portion of this article and no
legal effect shall be given to any descriptive matter of headings relating to any part, section,
subsection, subdivision or paragraph of this article.
§11-13V-2. Legislative intent and findings.
(a) Legislative intent. - It is the intent of the Legislature in enacting this article to impose
new, additional privilege taxes on severing or producing natural resources in this state and for the
net proceeds from collection of the new taxes to be dedicated to paying down the unfunded liability
in the workers' compensation fund, or paying debt service on bonds sold to raise funds to pay down
the unfunded liability in the workers' compensation fund, or for any combination of these two
purposes.
(b) Findings. - The Legislature finds and declares that:
(1) The unfunded liability in the state workers' compensation program exceeds three billion
dollars;
(2) Until a fiscally responsible plan for paying this unfunded liability is provided by the
Legislature, the condition of the workers' compensation fund will continue to negatively affect
economic development in this state;
(3) Until a fiscally responsible plan for paying this unfunded liability is provided by the
Legislature, the Legislature will not be able to privatize workers' compensation;
(4) Until a fiscally responsible plan for paying this unfunded liability is provided, the
Legislature will need to annually appropriate dollars from the general revenue fund of the state to
pay down this unfunded liability and to cover the annual shortfall between funds available to pay
workers' compensation benefits to injured workers and premiums collected by the workers'
compensation fund from employers;
(5) In accordance with the constitution of this state and decisions of the West Virginia
supreme court of appeals, the Legislature may enact a new tax and dedicate the net collections of the
tax to pay down this unfunded liability or to pay debt service on bonds sold by the state to raise funds
to pay down this unfunded liability.
§11-13V-3. Definitions.
All definitions set forth in articles twelve-d and article thirteen-a of this chapter apply to
those defined terms that also appear in this article, if applicable.
§11-13V-4. Imposition of tax.
(a) Imposition of additional tax on privilege of severing coal. - Upon every person exercising
the privilege of engaging within this state in severing, extracting, reducing to possession or
producing coal for sale, profit or commercial use, there is hereby imposed an additional annual
severance tax for exercising the privilege after the thirtieth day of November, two thousand five.
The tax shall be fifty-six cents per ton and the measure of the tax is tons of clean coal severed or
produced in this state by the taxpayer after the thirtieth day of November, two thousand five, for sale,
profit or commercial use during the taxable year. When the person mining the coal sells raw coal,
the measure of tax shall be ton of clean coal determined in accordance with rules promulgated by
the tax commissioner as provided in article three, chapter twenty-nine-a of this code. If this rule is
filed for public comment before the first day of July, two thousand five, the rule may be promulgated
as an emergency legislative rule. This tax shall be in addition to all taxes imposed with respect to
the severance and production of coal in this state including, but not limited to, the taxes imposed by
articles twelve-d and thirteen-a of this chapter and the taxes imposed by sections eleven and thirty-
two, article three, chapter twenty-two of this code, if applicable.
(b) Imposition of additional tax on privilege of severing natural gas. - For the privilege of
engaging or continuing within this state in the business of severing natural gas for sale, profit or
commercial use, there is hereby levied and shall be collected from every person exercising this
privilege an additional annual privilege tax. The rate of this additional tax shall be four and seven-
tenths cents per mcf of natural gas and the measure of the tax is natural gas produced after the
thirtieth day of November, two thousand five, determined at the point where the production privilege
ends for purposes of the tax imposed by section three-a, article thirteen-a of this chapter, and with
respect to which the tax imposed by section three-a of said article thirteen-a is paid. The additional
tax imposed by this subsection shall be collected with respect to natural gas produced after the
thirtieth day of November, two thousand five.
(c) Imposition of additional tax on privilege of severing timber. - For the privilege of engaging or continuing within this state in the business of severing timber for sale, profit or
commercial use, there is hereby levied and shall be collected from every person exercising this
privilege an additional annual privilege tax equal to two and seventy-eight hundredths percent of the
gross value of the timber produced, determined at the point where the production privilege ends for
purposes of the tax imposed by section thirteen-b, article thirteen-a of this chapter, and upon which
the tax imposed by section three-b of said article thirteen-a is paid. The additional tax imposed by
this subsection shall be collected with respect to timber produced after the thirtieth day of November,
two thousand five.
(d) No pyramiding of tax burden. - Each ton of coal and each mcf of natural gas severed in
this state after the effective date of the taxes imposed by this section shall be included in the measure
of a tax imposed by this section only one time.
(e) Effect on utility rates. - The public service commission shall, upon the application of any
public utility that, as of the effective date of the taxes imposed by this section, is not currently
making periodic adjustments to its approved rates and charges to reflect changes in its fuel costs
because the mechanism historically used to make such periodic adjustments is suspended by an order
of the commission, allow such utility to defer, for future recovery from its customers, any increase
in its costs attributable to the taxes imposed by this section upon: coal and natural gas severed in
this state and utilized in the production of electricity generated or produced in this state and sold to
customers in this state; coal and natural gas severed in this state and utilized in the production of
electricity not generated or produced in this state that is sold to customers in this state; and natural
gas severed in this state that is sold to customers in this state.
(f) Dedication of new taxes. - The net amount of all monies received by the tax commissioner
from collection of the taxes imposed by this section, including any interest, additions to tax, or
penalties collected with respect to these taxes pursuant to article ten, chapter eleven of this code,
shall be deposited in the workers' compensation debt reduction fund created in article two-d, chapter
twenty-three of this code. As used in this section, "net amount of all taxes received by the tax commissioner" means the gross amount received by the tax commissioner less the amount of any
refunds paid for overpayment of the taxes imposed by this article, including the amount of any
interest on the overpayment amount due the taxpayer under the provisions of section fourteen, article
ten of this chapter.
(g) Sunset expiration date of taxes. - The new taxes imposed by this section shall expire and
not be imposed with respect to privileges exercised on and after the first day of the month following
the month in which the governor certifies to the Legislature that (1) the revenue bonds issued
pursuant to article two-d, chapter twenty-three of this code, have been retired, or payment of the debt
service provided for, and (2) that an independent certified actuary has determined that the unfunded
liability of the old fund, as defined in chapter twenty-three of this code, has been paid or provided
for in its entirety. Expiration of the taxes imposed in this section as provided in this subsection shall
not relieve any person from payment of any tax imposed with respect to privileges exercised before
the expiration date.
§11-13V-5. Accounting periods and methods of accounting.
(a) General rule. - For purposes of the taxes imposed by this article, a taxpayer's taxable year
shall be the same as the taxpayer's taxable year for federal income tax purposes. If taxpayer has no
taxable year for federal income tax purposes, then the calendar year shall be taxpayer's taxable year
under this article.
(b) Change of taxable year. - If a taxpayer's taxable year is changed for federal income tax
purposes, taxpayer's taxable year for purposes of this article is similarly changed. The taxpayer shall
provide a copy of the authorization for the change from the Internal Revenue Service, with taxpayer's
annual return for the taxable year filed under this article.
(c) Methods of accounting same as federal. --
(1) Same as federal. - A taxpayer's method of accounting under this article shall be the same
as the taxpayer's method of accounting for federal income tax purposes. In the absence of any
method of accounting for federal income tax purposes, the accrual method of accounting shall be used, unless the tax commissioner, in writing, consents to the use of another method. Accrual basis
taxpayers may deduct bad debts only in the year to which they relate.
(2) Change of accounting methods. - If a taxpayer's method of accounting is changed for
federal income tax purposes, the taxpayer's method of accounting for purposes of this article is
similarly changed. The taxpayer shall provide a copy of the authorization for the change from the
internal revenue service with its annual return for the taxable year filed under this article.
(d) Adjustments. - In computing a taxpayer's liability for tax for any taxable year under a
method of accounting different from the method under which the taxpayer's liability for tax under
this article for the previous year was computed, there shall be taken into account those adjustments
which are determined, under rules promulgated by the tax commissioner in accordance with article
three, chapter twenty-nine-a of this code, to be necessary solely by reason of the change in order to
prevent amounts from being duplicated or omitted.
§11-13V-6. Time for filing annual returns and other documents.
On or before the expiration of one month after the end of the taxable year, every taxpayer
subject to a tax imposed by this article shall make and file an annual return for the entire taxable year
showing all information the tax commissioner requires and computing the amount of taxes due under
this article for the taxable year. Returns made on the basis of a calendar year shall be filed on or
before the thirty-first day of January following the close of the calendar year. Returns made on the
basis of a fiscal year shall be filed on or before the last day of the first month following the close of
the fiscal year.
§11-13V-7. Periodic installment payments of taxes imposed by this article; exceptions.
(a) General rule. - Except as provided in subsection (b) of this section, taxes levied by this
article are due and payable in periodic installments as follows:
(1) Tax of fifty dollars or less per month. - If a person's aggregate annual tax liability under
this article and article thirteen-a of this chapter is reasonably expected to be fifty dollars or less per
month, no installment payments of tax are required under this section during that taxable year.
(2) Tax of more than one thousand dollars per month. - For taxpayers whose aggregate
estimated tax liability under this article and article thirteen-a of this chapter exceeds one thousand
dollars per month, the tax is due and payable in monthly installments on or before the last day of the
month following the month in which the tax accrued: Provided, That the installment payment
otherwise due under this subdivision on or before the thirtieth day of June each year shall be remitted
to the tax commissioner on or before the fifteenth day of June each year. When this subdivision
applies, the taxpayer shall, on or before the due date specified in this subdivision, make out an
estimate of the tax for which the taxpayer is liable for the preceding month, sign the estimate and
mail it together with a remittance, in the form prescribed by the tax commissioner, of the amount of
tax due to the office of the tax commissioner: Provided, however, That the installment payment
otherwise due under this paragraph on or before the thirtieth day of June each year shall be remitted
to the tax commissioner on or before the fifteenth day of June.
(3) Tax of one thousand dollars per month or less. - For taxpayers whose estimated tax
liability under this article is one thousand dollars per month or less, the tax is due and payable in
quarterly installments on or before the last day of the month following the quarter in which the tax
accrued. When this subdivision applies, the taxpayer shall, on or before the last day of the fourth,
seventh and tenth months of the taxable year, make out an estimate of the tax for which the taxpayer
is liable for the preceding quarter, sign the same and mail it together with a remittance, in the form
prescribed by the tax commissioner, of the amount of tax due to the office of the tax commissioner.
(b) Exception. - Notwithstanding the provisions of subsection (a) of this section, the tax
commissioner, if he or she considers it necessary to ensure payment of the tax, may require the return
and payment under this section for periods of shorter duration than those prescribed in subsection
(a) of this section.
(c)Remittance by electronic funds transfer. - When the taxpayer's annual aggregate liability
for tax under this article and article thirteen-a of this chapter exceeds fifty thousand dollars for the
prior tax year, payments of estimated tax required by this article and article thirteen-a during the then current tax year shall be by electronic funds transfer, in accordance with rules of the tax
commissioner and rules of the state treasurer, except as otherwise permitted by the tax
commissioner.
§11-13V-8. Extension of time for filing returns.
The tax commissioner may, upon written request received on or prior to the due date of the
annual return or any periodic estimate, grant a reasonable extension of time for filing any return or
other document required by this article, upon such terms as he or she may by rule prescribe, or by
contract require, if good cause satisfactory to the tax commissioner is provided by the taxpayer.
§11-13V-9. Extension of time for paying tax.
(a) Amount determined on return. - The tax commissioner may extend the time for payment
of the amount of the tax shown, or required to be shown, on any return required by this article (or
any periodic installment payments), for a reasonable period not to exceed six months from the date
fixed for payment thereof.
(b) Amount determined as deficiency. - Under rules prescribed by the tax commissioner in
accordance with the provisions of article three, chapter twenty-nine-a of this code, the commissioner
may extend the time for the payment of the amount determined as a deficiency of the taxes imposed
by this article for a period not to exceed eighteen months from the date fixed for payment of the
deficiency. In exceptional cases, a further period of time not to exceed twelve months may be
granted. An extension under this subsection may be granted only where it is shown to the
satisfaction of the tax commissioner that payment of a deficiency upon the date fixed for the payment
thereof will result in undue hardship to the taxpayer.
(c) No extension for certain deficiencies. - No extension may be granted under this section
for any deficiency if the deficiency is due to negligence, to intentional disregard of rules and
regulations, or to fraud with intent to evade tax.
§11-13V-10. Place for filing returns or other documents.
Tax returns, statements or other documents, or copies thereof, required by this article, or rules promulgated by the commissioner, shall be filed with the tax commissioner by delivery, in person
or by mail, to his or her office in Charleston, West Virginia: Provided, That the tax commissioner
may, by rules, prescribe the place and other means of delivery for filing such returns, statements, or
other documents, or copies thereof.
§11-13V-11. Time and place for paying tax shown on returns.
(a) General rule. - The person required to make the annual return required by this article
shall, without assessment or notice and demand from the tax commissioner, pay the tax at the time
and place fixed for filing the return (determined without regard to any extension of time for filing
the return).
(b) Date fixed for payment of tax. - The date fixed for payment of the taxes imposed by this
article shall be deemed to be a reference to the last day fixed for the payment (determined without
regard to any extension of time for paying the tax).
(c) Terms of extension. - Any extension of time for payment of tax under this section may
be granted upon such terms as the tax commissioner may, by rule prescribe, or by contract require.
§11-13V-12. Signing of returns and other documents.
(a) General. - Any return, statement or other document required to be made under the
provisions of this article shall be signed in accordance with instructions or regulations prescribed by
the tax commissioner.
(b) Signing of corporation returns. - The return of a corporation shall be signed by the
president, vice president, treasurer, assistant treasurer, chief accounting officer or any other officer
duly authorized so to act. In the case of a return made for a corporation by a fiduciary, the fiduciary
shall sign the return. The fact that an individual's name is signed on the return shall be prima facie
evidence that such individual is authorized to sign the return on behalf of the corporation.
(c) Signing of partnership returns. The return of a partnership shall be signed by any one of
the partners. The fact that a partner's name is signed on the return shall be prima facie evidence that
such partner is authorized to sign the return on behalf of the partnership.
(d) Signing of limited liability company returns. The return of a limited liability company
shall be signed by any one of its authorized members. The fact that a member's name is signed on
the return shall be prima facie evidence that the member is authorized to sign the return on behalf
of the limited liability company.
(e) Signature presumed authentic. - The fact that an individual's name is signed to a return,
statement or other document shall be prima facie evidence for all purposes that the return, statement
or other document was actually signed by him or her.
(f) Verification of returns. - Except as otherwise provided by the tax commissioner, any
return, declaration or other document required to be made under this article shall contain or be
verified by a written declaration that it is made under the penalties of perjury.
§11-13V-13. Bond of taxpayer may be required.
(a) Whenever it is deemed necessary to ensure compliance with this article, the tax
commissioner may require any taxpayer to post a cash or corporate surety bond.
(b) The amount of the bond shall be fixed by the tax commissioner but, except as provided
in subsection (c) of this section, shall not be greater than three times the average quarterly liability
of taxpayers filing returns for quarterly periods, five times the average monthly liability of taxpayers
required to file returns for monthly periods, or two times the average periodic liability of taxpayers
permitted or required to file returns for other than monthly or quarterly periods.
(c) Notwithstanding the provisions of subsection (b) of this section, no bond required under
this section shall be less than five hundred dollars.
(d) The amount of the bond may be increased or decreased by the tax commissioner at any
time subject to the limitations provided in this section.
(e) The tax commissioner may bring an action for a restraining order or a temporary or
permanent injunction to restrain or enjoin the operation of a taxpayer's business until the bond is
posted and any delinquent tax, including applicable interest and additions to tax has been paid. This
action may be brought in the circuit court of Kanawha County or in the circuit court of any county having jurisdiction over the taxpayer.
§11-13V-14. Collection of tax; agreement for processor to pay tax due from severor.
(a) General. - In the case of natural resources, other than natural gas, where the tax
commissioner finds that it would facilitate and expedite the collection of the taxes imposed by this
article, the tax commissioner may authorize the taxpayer processing the natural resource to report
and pay the tax which would be due from the taxpayer severing the natural resources. The agreement
shall be in the form prescribed by or acceptable to the tax commissioner.
(1) The agreement must be signed:
(A) By the owner, if the taxpayer is a natural person;
(B) In the case of a partnership, limited liability company or association, by a partner or
member;
(C) In the case of a corporation, by an executive officer or some person specifically
authorized by the corporation to sign the agreement.
(2) The agreement may be terminated by any party to the agreement upon giving thirty days'
written notice to the other parties to the agreement: Provided, That the tax commissioner may
terminate the agreement immediately upon written notice to the other parties when either the
taxpayer processing the natural resource or the taxpayer severing the natural resource fails to comply
with the terms of the agreement.
(b) Natural gas. --
(1) In the case of natural gas, except for those cases:
(A) Where the person severing (or both severing and processing) the natural gas will sell the
gas to the ultimate consumer, or
(B) Where the tax commissioner determines that the collection of taxes due under this article
would be accomplished in a more efficient and effective manner through the severor, or severor and
processor, remitting the taxes, the first person to purchase the natural gas after it has been severed,
or in the event that the natural gas has been severed and processed before the first sale, the first person to purchase natural gas after it has been severed and processed, shall be liable for the
collection of the taxes imposed by this article. That person shall collect the taxes imposed from the
person severing (or severing and processing) the natural gas, and that person shall remit the taxes
to the tax commissioner.
(C) In those cases where the person severing (or severing and processing) the natural gas sells
the gas to the ultimate consumer, the person so severing (or severing and processing) the natural gas
shall be liable for the taxes imposed by this article.
(D) In those cases where the tax commissioner determines that the collection of the taxes due
under this article from the person severing the natural gas, or severing and processing the natural gas
would be accomplished in a more efficient and effective manner through the severor (or severor and
processor) remitting the taxes, the tax commissioner shall set out his or her determination in writing,
stating his or her reasons for so finding, and so advise the severor (or severor and processor) at least
fifteen days in advance of the first reporting period for which the commissioner's determination is
effective.
(2) On or before the last day of the month following each taxable calendar month, the person
first purchasing natural gas, as described in subdivision (1) of this subsection, shall report purchases
of natural gas during the taxable month, showing the quantities of gas purchased, the price paid, the
date of purchase, and any other information considered necessary by the tax commissioner for the
administration of the tax imposed by this article, and shall pay the amount of tax due, on forms
prescribed by the tax commissioner.
(3) On or before the last day of the month following each taxable calendar month, each
person severing (or severing and processing) natural gas, shall report the sales of natural gas,
showing the name and address of the person to whom sold, the quantity of gas sold, the date of sale,
and the sales price on forms prescribed by the tax commissioner.
§11-13V-15. Records.
(a) General. - Every person liable for reporting or paying tax under this article shall keep records, receipts, invoices and other pertinent papers in the form required by the tax commissioner.
(b) Period of retention. - Every taxpayer shall keep the records for a tax year for a period of
not less than three years after the annual return is filed under this article, unless the tax
commissioner, in writing, authorizes their earlier destruction. An extension of time for making an
assessment automatically extends the time period for keeping the records for all years subject to audit
covered in the agreement for extension of time.
(c) Special rule for purchasers of standing timber or of logs. - In addition to the records
required by subsection (a) of this section, every person purchasing standing timber, logs or wood
products sawn or chipped in conjunction with a timber harvesting operation in this state shall obtain
from the person from whom the standing timber, logs or wood products sawn or chipped in
conjunction with a timbering harvest operation are purchased a true copy of the seller's then current
business registration certificate issued under article twelve of this chapter or a copy of federal form
1099 for the year of the purchase. When the seller is a person not required by this chapter to have
a business registration certificate, the purchaser shall obtain an affidavit from the seller:
(1) Stating that the seller does not have a business registration certificate and that the seller
is not required by this chapter to have a business registration certificate;
(2) Listing the seller's social security number or federal employer identification number; and
(3) Listing the seller's current mailing address. The tax commissioner may develop a form
for this affidavit.
§11-13V-16. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure and Administration Act" set
forth in article ten of this chapter applies to the taxes imposed by this article, except as otherwise
expressly provided in this article, with like effect as if that act were applicable only to the taxes
imposed by this article and were set forth in extenso in this article.
§11-13V-17. Crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of this chapter applies to the taxes imposed by this article with like effect as if that act
were applicable only to the taxes imposed by this article and were set forth in extenso in this article.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-96. Dedication of personal income tax proceeds.
(a) There is hereby dedicated an annual amount of forty-five million dollars from annual
collections of the tax imposed by this article for payment of the unfunded liability of the current
workers compensation fund. No portion of this amount may be pledged for payment of debt service
on revenue bonds issued pursuant to article two-d, chapter twenty-three of this code.
(b) Notwithstanding any other provision of this code to the contrary, beginning in January
of two thousand six, forty-five million dollars from collections of the tax imposed by this article shall
be deposited each calendar year to the credit of the old fund created in article two-c, chapter twenty-
three of this code, in accordance with the following schedule. Each calendar month, except for July,
August and September each year, five million dollars shall be transferred, on or before the twenty-
eighth day of the month, to the workers' compensation debt reduction fund created in article two-d,
chapter twenty-three of this code.
(c) Expiration. - The transfers required by this section shall continue to be made until the
governor certifies to the Legislature that an independent actuary study determined that the unfunded
liability of the old fund, as defined in chapter twenty-three of this code, has been paid or provided
for in its entirety. No transfer pursuant to this section shall be made thereafter.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
(a) The Legislature finds that a deficit exists in the workers' compensation fund of such
critical proportions that it constitutes an imminent threat to the immediate and long-term solvency
of the fund and constitutes a substantial deterrent to the economic development of this state. The
Legislature further finds that addressing the workers' compensation crisis requires the efforts of all persons and entities involved and resolution of the crisis is in the best interest of the public.
Modification to the rate system, alteration of the benefit structure, improvement of current
management practices and changes in perception must be merged into a unified effort to make the
workers' compensation system viable and solvent through the mutualization of the system and the
opening of the market to private workers' compensation insurance carriers. It is was and remains
the intent of the Legislature that the amendments to this chapter enacted in the year two thousand
three be applied from the date upon which the enactment is was made effective by the Legislature.
The Legislature finds that an emergency exists as a result of the combined effect of this deficit, other
state budgetary deficits and liabilities and other grave social and economic circumstances currently
confronting the state and that unless the changes provided by the enactment of the amendments to
this chapter, as well as other legislation designed to address the problem are made effective
immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the
Legislature finds that the need of the citizens of this state for the protection of the state treasury and
the solvency of the workers' compensation funds requires the limitations on any expectations that
may have arisen from prior enactments of this chapter.
(b) It is the further intent of the Legislature that this chapter be interpreted so as to assure the
quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost
to the employers who are subject to the provisions of this chapter. It is the specific intent of the
Legislature that workers' compensation cases shall be decided on their merits and that a rule of
"liberal construction" based on any "remedial" basis of workers' compensation legislation shall not
affect the weighing of evidence in resolving such cases. The workers' compensation system in this
state is based on a mutual renunciation of common law rights and defenses by employers and
employees alike. Employees' rights to sue for damages over and above medical and health care
benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter and
employers' rights to raise common law defenses such as lack of negligence, contributory negligence
on the part of the employee, and others, are curtailed as well. Accordingly, the Legislature hereby declares that any remedial component of the workers' compensation laws is not to cause the workers'
compensation laws to receive liberal construction that alters in any way the proper weighing of
evidence as required by section one-g, article four of this chapter.
(c) The "workers' compensation division of the bureau of employment programs" is, on or
after the first day of October, two thousand three, reestablished, reconstituted and continued as the
workers' compensation commission, an agency of the state. The purpose of the commission is to
ensure the fair, efficient and financially stable administration of the workers' compensation system
of the state of West Virginia. The powers and duties heretofore imposed upon the workers'
compensation division and the commissioner of the bureau of employment programs as they relate
to workers' compensation are hereby transferred to and imposed upon the workers' compensation
commission and its executive director in the manner prescribed by this chapter.
(d) It is the intent of the Legislature that the transfer of the administration of the workers'
compensation system of this state from the workers' compensation division under the commissioner
of the bureau of employment programs to the workers' compensation commission under its
executive director and the workers' compensation board of managers is to become effective the first
day of October, two thousand three. Any provisions of the enactment of Enrolled Senate Bill No.
2013 in the year two thousand three relating to the transfer of the administration of the workers'
compensation system of this state that conflict with the intent of the Legislature as described in this
subsection shall, to that extent, become operative on the first day of October, two thousand three,
and until that date, prior enactments of this code in effect on the effective date of Enrolled Senate
Bill No. 2013 relating to the administration of the workers' compensation system of this state,
whether amended and reenacted or repealed by the passage of Enrolled Senate Bill No. 2013, have
full force and effect. All provisions of the enactment of Enrolled Senate Bill No. 2013 in the year
two thousand three relating to matters other than the transfer of the administration of the workers'
compensation system of this state shall become operative on the effective date of that enactment,
unless otherwise specifically provided for in that enactment.
§23-1-1a. Workers' compensation board of managers; appointment; composition;
qualifications; terms; chairperson; meetings and quorum;
compensation and travel expenses; powers and duties.
(a) On the first day of October, two thousand three, the compensation programs performance
council heretofore established in article three, chapter twenty-one-a of this code is hereby abolished
and there is hereby created the "workers' compensation board of managers", which may also be
referred to as "the board of managers" or "the board".
(b) (1) The board shall consist of eleven voting members as follows:
(A) The governor or his or her designee;
(B) The chief executive officer of the West Virginia investment management board; if
required to attend more than one meeting per month, he or she may send a designee to the additional
meetings;
(C) The executive director of the West Virginia development office; if required to attend
more than one meeting per month, he or she may send a designee to the additional meetings; and
(D) Eight members appointed by the governor with the advice and consent of the Senate who
meet the requirements and qualifications prescribed in subsections (c) and (d) of this section:
Provided, That the members serving on the compensation programs performance council heretofore
established in article three, chapter twenty-one-a of this code on the effective date of the enactment
of this section in two thousand three are hereby appointed as members of the board of managers
subject to the provisions of subdivision (1), subsection (c) of this section.
(2) Two members of the West Virginia Senate and two members of the West Virginia House
of Delegates shall serve as advisory members of the board and are not voting members. The
governor shall appoint the legislative members to the board. No more than three of the legislative
members may be of the same political party.
(c) (1) The initial eight appointed voting members of the board of managers shall consist of
the members appointed under the provisions of paragraph (D), subdivision (1), subsection (a) of this section and the remaining members appointed pursuant to the provisions of subsection (d) of this
section. The term of each of the initial appointed members shall expire on the thirty-first day of
December, two thousand four five.
(2) Effective the first day of January, two thousand six, if the commission continues, eight
members shall be appointed by the governor with the advice and consent of the Senate for terms that
begin the first day of January, two thousand five six, and expire as follows:
Two members shall be appointed for a term ending the thirtieth day of June, two thousand
six seven;
Three members shall be appointed for a term ending the thirtieth day of June, two thousand
seven eight; and
Three members shall be appointed for a term ending the thirtieth day of June, two thousand
eight nine.
(3) Except for appointments to fill vacancies, each subsequent appointment shall be for a
term ending the thirtieth day of June of the fourth year following the year the preceding term expired.
In the event a vacancy occurs, it shall be filled by appointment for the unexpired term. A member
whose term has expired shall continue in office until a successor has been duly appointed and
qualified. No member of the board may be removed from office by the governor except for official
misconduct, incompetency, neglect of duty or gross immorality.
(4) No appointed member may be a candidate for or hold elected office. Members may be
reappointed for no more than two full terms.
(d) Except for those initially appointed under the provisions of paragraph (D), subdivision
(1), subsection (a) of this section, each of the appointed voting members of the board shall be
appointed based upon his or her demonstrated knowledge and experience to effectively accomplish
the purposes of this chapter. They shall meet the minimum qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited college or university:
Provided, That no more than three of the appointed voting members may serve without a baccalaureate degree from an accredited college or university if the member has a minimum of
fifteen years' experience in his or her field of expertise as required in subdivision (2) of this
subsection;
(2) Each shall have a minimum of ten years' experience in his or her field of expertise. The
governor shall consider the following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in insurance claims management; expertise in
insurance underwriting; expertise in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two hundred beneficiaries or three
hundred million dollars; expertise in workers' compensation management; expertise in loss
prevention and rehabilitation; expertise in occupational medicine demonstrated by licensure as a
medical doctor in West Virginia and experience, board certification or university affiliation; or
expertise in similar areas of endeavor;
(3) At least one shall be a certified public accountant with financial management or pension
or insurance audit expertise; at least one shall be an attorney with financial management experience;
and one shall be an academician holding an advanced degree from an accredited college or university
in business, finance, insurance or economics.
(e) Each member of the board shall have a fiduciary responsibility to the commission and all
workers' compensation funds and shall assure the proper administration of the funds in a fiscally
responsible manner.
(f) The board shall elect one member to serve as chairperson. The chairperson shall serve for
a one-year term and may serve more than one consecutive term. The board shall hold meetings at
the request of the chairperson or at the request of at least three of the members of the board, but no
less frequently than once every three months. The chairperson shall determine the date and time of
each meeting. Six members of the board constitute a quorum for the conduct of the business of the
board. No vacancy in the membership of the board shall impair the right of a quorum to exercise
all the rights and perform all the duties of the board. No action shall be taken by the board except upon the affirmative vote of six members of the board.
(g) Notwithstanding any provision of article seven, chapter six of this code to the contrary,
the board shall establish the salary of the executive director. The board shall establish a set of
performance measurements to evaluate the performance of the executive director in fulfilling his or
her duties as prescribed in this chapter and shall annually rate the executive director's performance
according to the established measurements and may adjust his or her annual salary in accordance
with that performance rating.
(h) (1) Each voting appointed member of the board shall receive compensation of not more
than three hundred fifty dollars per day for each day during which he or she is required to and does
attend a meeting of the board.
(2) Each voting appointed member of the board is entitled to be reimbursed for actual and
necessary expenses incurred for each day or portion thereof engaged in the discharge of official
duties in a manner consistent with guidelines of the travel management office of the department of
administration.
(i) Each member of the board shall be provided appropriate liability insurance, including, but
not limited to, errors and omissions coverage, without additional premium, by the state board of risk
and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
(j) The board of managers shall:
(1) Review and approve, reject or modify recommendations from the executive director for
the development of overall policy for the administration of this chapter;
(2) In consultation with the executive director, propose legislation and establish operating
guidelines and policies designed to ensure the effective administration and financial viability of the
workers' compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are proposed by the executive director
for operation of the workers' compensation system before the rules are filed with the secretary of
state. The rules adopted by the board are not subject to sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The board shall follow the remaining provisions
of said chapter for giving notice to the public of its actions and for holding hearings and receiving
public comments on the rules;
(4) In accordance with the laws, rules and regulations of West Virginia and the United States
government, establish and monitor performance standards and measurements to ensure the timeliness
and accuracy of activities performed under the workers' compensation laws and rules;
(5) Review and approve, reject or modify all classifications of occupations or industries,
premium rates and taxes, administrative charges, rules and systems of rating, rating plans, rate
revisions, deficit management and deficit reduction assessments and merit rating for employers
covered by this chapter. The executive director shall provide all information required for the board's
review;
(6) In conjunction with the executive director initiate, oversee and review all independent
financial and actuarial reviews of the commission. The board shall employ an internal auditor for
the purpose of examining internal compliance with the provisions of this chapter. The internal
auditor shall be employed directly by the board. The internal auditor shall submit copies of all
reports prepared by the internal auditor for the board to the joint committee on government and
finance within five days of submitting or making the report to the board, by filing the report with the
legislative librarian;
(7) Approve the allocation of sufficient administrative resources and funding to efficiently
operate the workers' compensation system of West Virginia. To assure efficient operation, the board
shall direct the development of a plan for the collections performed under section five-a, article two
of this chapter. The plan for collections shall maximize ratio of dollars potentially realized by the
collection proceeding to the dollars invested in collection activity;
(8) Review and approve, reject or modify the budget prepared by the executive director for
the operation of the commission. The budget shall include estimates of the costs and necessary
expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices, furniture, equipment and supplies to all commission officers and
employees;
(9) In consultation with the executive director, approve the designation of health care
providers to make decisions for the commission regarding appropriateness of medical services;
(10) Require the workers' compensation commission to develop, maintain and use an
effective program of return-to-work services for employers and workers;
(11) Require the workers' compensation commission to develop, maintain and use thorough
and efficient claims management procedures and processes and fund management in accordance with
the generally accepted practices of the workers' compensation insurance industry;
(12) Consider such other matters regarding the workers' compensation system as the
governor, executive director or any member of the board may desire;
(13) Review and approve, reject or modify standards recommended by the executive director
to be considered by the commission in making decisions on all levels of disability awards. The
standards should be established as an effective means to make prompt, appropriate decisions relating
to medical care and methods to assist employees to return to work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Employ sufficient professional and clerical staff to carry out the duties of the board.
Employees of the board shall serve at the will and pleasure of the board. The board's employees are
exempt from the salary schedule or pay plan adopted by the division of personnel; and
(16) Study the feasibility of, provide a plan for and provide a proposal for a request for
proposals from the private sector for, privatizing the workers' compensation system of this state,
including, but not limited to, a plan for privatizing the administration of the workers' compensation
system of this state and a plan for allowing employers to obtain private insurance to insure their
obligations under the workers' compensation system of this state; study the effect, if any, of attorneys
fees on the cost of administering the workers' compensation system; study the extent to which fraud
or abuse on the part of employees, providers and others have an effect on the cost of administering the workers' compensation system; study the extent, if any, that the rates and amounts of disability
awards exceed the rates and amounts of such awards in other states; study the comparative
desirability of alternative permanent disability administration in those other states, and alternative
deficit management strategies, including nontraditional funding; study the feasibility of authorizing
a plan of multiple rate classifications by individual employers for employers who have different or
seasonally diverse job classifications and duties: Provided, That no such plan may be implemented
until adopted by the Legislature; and, in consultation with the director of the division of personnel,
study the feasibility of establishing a work incentive program to place unemployed qualified
recipients of workers' compensation benefits in state or local government employment. On or before
the first day of January, two thousand six, the commission shall report the findings and conclusions
of each study, the plans and proposals, and any recommendations the commission may have as a
result of the study to the joint committee on government and finance.
(17) Complete all duties set forth in article two-c of this chapter.
(k) The board of managers shall continue to exist pursuant to this article until the commission
is terminated pursuant to the provisions of this chapter.
§23-1-1b. Executive director; qualifications; oath; seal; removal; powers and duties.
(a) The executive director shall be hired by the board of managers for a term not to exceed
five years and may be retained based on overall performance for additional terms: Provided, That
the executive director of the division of workers' compensation on the date of the enactment of this
section in the year two thousand three shall serve as the initial executive director of the commission
and shall receive the same salary and benefits as received as the executive director of the division
of workers' compensation through and until the board of managers establishes his or her salary and
benefits as the executive director of the commission. The position of executive director shall be full-
time employment. Except for the initial executive director, candidates for the position of executive
director shall have a minimum of a bachelor of arts or science degree from an accredited four-year
college or university in one or more of the following disciplines: Finance; economics; insurance administration; law; public administration; accounting; or business administration. Candidates for
the position of executive director will be considered based on their demonstrated education,
knowledge and a minimum of ten years' experience in the areas of workers' compensation, insurance
company management, administrative and management experience with an organization comparable
in size to the workers' compensation commission or any relevant experience which demonstrates an
ability to effectively accomplish the purposes of this chapter.
(b) The executive director shall not be a candidate for or hold any other public office or trust,
nor shall he or she be a member of a political committee. If he or she becomes a candidate for a
public office or becomes a member of a political committee, his or her office as executive director
shall be immediately vacated.
(c) The executive director, before entering upon the duties of his or her office, shall take and
subscribe to the oath prescribed by section five, article IV of the state constitution. The oath shall
be filed with the secretary of state.
(d) The executive director shall have an official seal for the authentication of orders and
proceedings, upon which seal shall be engraved the words "West Virginia Workers' Compensation
Commission" and any other design prescribed by the board of managers. The courts in this state
shall take judicial notice of the seal of the commission and in all cases copies of orders, proceedings
or records in the office of the West Virginia workers' compensation commission are equal to the
original in evidence.
(e) The executive director shall not be a member of the board of managers.
(f) The executive director shall serve until the expiration of his or her term, resignation or
until removed by a two-thirds vote of the full board of managers. The board of managers and the
executive director may, by agreement, terminate the term of employment at any time.
(g) The executive director shall have overall management responsibility and administrative
control and supervision within the workers' compensation commission and has the power and duty
to:
(1) Establish, with the approval of the board of managers, the overall administrative policy
of the commission for the purposes of this chapter;
(2) Employ, direct and supervise all employees required in the connection with the
performance of the duties assigned to the commission by this chapter and fix the compensation of
the employees in accordance with the provisions of article six, chapter twenty-nine of this code:
Provided, That the executive director shall identify which members of the staff of the workers'
compensation commission shall be exempted from the salary schedules or pay plan adopted by the
state personnel board and further identify such staff members by job classification or designation,
together with the salary or salary ranges for each such job classification or designation and shall file
this information with the director of the division of personnel no later than the thirty-first day of
December, two thousand three, and thereafter as changes are made or at least annually: Provided,
however, That, effective the first days of July, two thousand six, if the commission has not been
terminated or otherwise discontinued, all employees of the commission shall be exempt and
otherwise not under the jurisdiction of the provisions of the statutes, rules and regulations of the
classified service set forth in article six, chapter twenty-nine of this code and article six-a of said
chapter and are afforded no protections, rights or access to procedures set forth in said provision.
All commission employees shall be employees at will unless his or employment status is altered by
an express, written employment contract executed on behalf of the commission and the employee.
The commission and its employees shall be exempt and otherwise not under the jurisdiction of the
state personnel board, the department of personnel, or any other successor agency, and their statutes,
rules and regulations;
(3) Reorganize the work of the commission, its divisions, sections and offices to the extent
necessary to achieve the most efficient performance of its functions. All persons employed by the
workers' compensation division in positions that were formerly supervised and directed by the
commissioner of the bureau of employment programs under chapter twenty-one-a of this code are
hereby assigned and transferred in their respective classifications to the workers' compensation commission effective the first day of October, two thousand three. Further, the executive director
may select persons that are employed by the bureau of employment programs on the effective date
of the enactment of this section in the year two thousand three to be assigned and transferred to the
workers' compensation commission in their respective classifications, such assignment and transfer
to take effect no later than the thirty-first day of December, two thousand three. Employees in the
classified service who have gained permanent status as of the effective date of this article will not
be subject to further qualifying examination in their respective classifications by reason of any
transfer required by the provisions of this subdivision. Due to the emergency currently existing at
the commission and the urgent need to develop fast, efficient claims processing, management and
administration, the executive director is hereby granted authority to reorganize internal functions and
operations and to delegate, assign, transfer, combine, establish, eliminate and consolidate
responsibilities and duties to and among the positions transferred under the authority of this
subdivision. The division of personnel shall cooperate fully by assisting in all personnel activities
necessary to expedite all changes for the commission. The executive director is hereby granted
authority to reorganize internal functions and operations and to delegate, assign, transfer, combine,
establish, eliminate and consolidate responsibilities and duties to and among the positions transferred
under the authority of this subdivision. The division of personnel shall cooperate fully by assisting
in all personnel activities necessary to expedite all changes for the commission and shall otherwise
continue to provide all necessary administrative support to the commission in connection with the
commission's personnel needs until the company established in article two-c of this chapter becomes
operational. Nothing contained in this subdivision shall be construed to either abridge the rights of
employees within the classified service of the state to the procedures and protections set forth in
article six, chapter twenty-nine of this code or to preclude the reclassification or reallocation of
positions in accordance with procedures set forth in said article;
(4) Exempt no more than twenty-five of any of the newly created positions from the classified
service of the state, the employees of which positions shall serve at the will and pleasure of the executive director. The executive director shall report all exemptions made under this subdivision
to the director of the division of personnel no later than the first day of January, two thousand four,
and thereafter as the executive director determines to be necessary;
(5) With the advice and approval of the board of managers, propose operating guidelines and
policies to standardize administration, expedite commission business and promote the efficiency of
the services provided by the commission;
(6) Prepare and submit to the board of managers information the board requires for
classifications of occupations or industries; the basis for premium rates, taxes, surcharges and
assessment for administrative charges, for assessments related to loss experience, for assessments
of prospective risk exposure, for assessments of deficit management and deficit reduction costs
incurred, for other deficit management and deficit reduction assessments, for rules and systems of
rating, rate revisions and merit rating for employers covered by this chapter; and information
regarding the extent, degree and amount of subsidization between the classifications. The executive
director shall obtain, prepare and submit any other information the board of managers requires for
the prompt and efficient discharge of its duties;
(7) Keep accurate and complete accounts and records necessary to the collection,
administration and distribution of the workers' compensation funds;
(8) Sign and execute in the name of the state, by "The Workers' Compensation Commission",
any contract or agreement;
(9) Make recommendations and an annual report to the governor concerning the condition,
operation and functioning of the commission;
(10) Invoke any legal or special remedy for the enforcement of orders or the provisions of
this chapter;
(11) Prepare and submit for approval to the board of managers a budget for each fiscal year,
including estimates of the costs and necessary expenditures of the commission in the discharge of
all duties imposed by this chapter as well as the costs of furnishing office space to the officers and employees of the commission;
(12) Ensure that all employees of the commission follow the orders, operating guidelines and
policies of the commission as they relate to the commission's overall policy-making, management
and adjudicatory duties under this chapter;
(13) Delegate all powers and duties vested in the executive director to his or her appointees
and employees; but the executive director is responsible for their acts;
(14) Provide at commission expense a program of continuing professional, technical and
specialized instruction for the personnel of the commission. The executive director shall consult
with and report at least annually to the legislative oversight commission on workforce investment
for economic development to obtain the most appropriate training using all available resources;
(15) (A) Contract or employ counsel to perform all legal services for the commission
including, but not limited to, representing the executive director, board of managers and commission
in any administrative proceeding and in any state or federal court. Additionally, the commission
may, but shall not be required to, call upon the attorney general for legal assistance and
representation as provided by law. The attorney general shall not approve or exercise authority over
in-house counsel or contract counsel hired pursuant to this section;
(B) In addition to the authority granted by this section to the executive director and
notwithstanding any provision to the contrary elsewhere in this code, use any attorney regularly
employed by the commission or the office of the attorney general to represent the commission, the
executive director or the board of managers in any matter arising from the performance of its duties
or the execution of its powers under this chapter. In addition, the executive director, with the
approval of the board of managers, may retain counsel for any purpose in the administration of this
chapter relating to the collection of any amounts due from employers to the commission: Provided,
That the allocation of resources for the purpose of any collections shall be pursuant to the plan
developed by the board of managers. The board of managers shall solicit proposals from counsel
who are interested in representing the commission under the terms of this subdivision. Thereafter, the board of managers shall select any attorneys it determines necessary to pursue the collection
objectives of this subdivision:
(i) Payment to retained counsel may either be hourly or by other fixed fee, or as determined
by the court or administrative law judge as provided for in this section. A contingency fee payable
from the amount recovered by judgment or settlement for the commission is only permitted, to the
extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so
that a full recovery plus attorneys' fees is not possible;
(ii) In the event that any collections action, other than a collections action against a claimant,
initiated either by retained counsel or other counsel on behalf of the commission results in a
judgment or settlement in favor of the commission, the court or, if there was no judicial component
to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall
be paid by the defendants or respondents to the retained or other counsel representing the
commission. If the court is to determine the amount of attorneys' fees, it shall include in its
determination the amount of fee that should be paid for the representation of the commission in
pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by
the court or the administrative law judge in an amount no less than twenty percent of its recovery.
Any additional amount of attorneys' fees shall be determined by use of the following factors:
(I) The counsel's normal hourly rate or, if the counsel is an employee of the commission or
is an employee of the office of the attorney general, an hourly rate the court or the administrative law
judge determines to be customary based upon the attorney's experience and skill level;
(II) The number of hours actually expended on the action;
(III) The complexity of the issues involved in the action;
(IV) The degree of risk involved in the case with regard to the probability of success or
failure;
(V) The overhead costs incurred by counsel with regard to the use of paralegals and other
office staff, experts and investigators; and
(VI) The public purpose served or public objective achieved by the attorney in obtaining the
judgment or settlement on behalf of the commission;
(iii) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commission
and the defendants or respondents to any administrative or judicial action settle the action, the parties
may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents
above and beyond the amount recovered by the commission. In the event that a settlement of
attorneys' fees is made, it must be submitted to the court or administrative law judge for approval;
(iv) Any attorney regularly employed by the commission or by the office of the attorney
general may not receive any remuneration for his or her services other than the attorney's regular
salary. Any attorneys' fees awarded for an employed attorney are payable to the commission;
(16) Propose rules for promulgation by the board of managers under which agencies of this
state shall revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other
authority to conduct a trade, profession or business to or with any employing unit whose account is
in default with the commission with regard to the administration of this chapter. The term "agency"
includes any unit of state government such as officers, agencies, divisions, departments, boards,
commissions, authorities or public corporations. An employing unit is not in default if it has entered
into a repayment agreement with the commission and remains in compliance with its obligations
under the repayment agreements;
(A) The rules shall provide that, before granting, issuing or renewing any contract, license,
permit, certificate or other authority to conduct a trade, profession or business to or with any
employing unit, the designated agencies shall review a list or lists provided by the commission of
employers that are in default. If the employing unit's name is not on the list, the agency, unless it has
actual knowledge that the employing unit is in default with the commission, may grant, issue or
renew the contract, license, permit, certificate or other authority to conduct a trade, profession or
business. The list may be provided to the agency in the form of a computerized database or
databases that the agency can access. Any objections to the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter. The prohibition against granting, issuing
or renewing any contract, license, permit, certificate or other authority under this subdivision shall
remain in full force and effect as promulgated under section six, article two, chapter twenty-one-a
of this code until the rules required by this subsection are promulgated and in effect;
(B) The rules shall also provide a procedure allowing any agency or interested person, after
being covered under the rules for at least one year, to petition the commission to be exempt from the
provisions of the rules;
(17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding
any other provision of this code and to the extent allowed by federal law, all amounts of delinquent
payments or overpayments, interest and penalties thereon and attorneys' fees and costs collected
under the provisions of this chapter. The amounts collected shall not be treated by the auditor or
treasurer as part of the general revenue of the state;
(18) Recommend for approval of the board of managers rules for the administration of claims
management by self-insured employers and third-party administrators including regulation and
sanctions for the rejection of claims and for maintaining claim records and ensuring access to all
claim records by interested claimants, claimant representatives, the commission and the office of
judges;
(19) Recommend for approval of the board of managers, rules to eliminate the ability of an
employer to avoid an experience modification factor by virtue of a reorganization of a business;
(20) Submit for approval of the board of managers rules setting forth procedures for auditing
and investigating employers, including employer premium audits and including auditing and
investigating programs of self-insured employers and third-party administrators, employees, health
care providers and medical and vocational rehabilitation service providers;
(21) Regularly audit and monitor programs established by self-insured or third-party
administrators under this chapter to ensure compliance with the commission's rules and the law;
(22) Establish and maintain a fraud and abuse Facilitate the transfer of the fraud investigation and prosecution unit; along with the assets necessary to support the functions being performed, to
the Insurance Commissioner. This transfer shall be to be completed by the first day of July, two
thousand five. This unit has the responsibility and authority for investigating and controlling fraud
and abuse of the workers' compensation system of the state of West Virginia. The fraud and abuse
unit shall be under the supervision of an inspector general, who shall be appointed by the executive
director of the workers' compensation commission Insurance Commissioner. Nothing in this section
shall preclude the commission or, when applicable, the company created in article two-c of this
chapter and other private carriers, from independently investigating and controlling abuse and
exercising the powers granted to the commission to address and eliminate abuse under this chapter.
The executive director may select persons that are assigned to the fraud and abuse unit on the
effective date of the enactment of this section to be assigned and remain employees of the workers'
compensation commission. The commission shall determine its fiscal year two thousand six budget
for the fraud investigation and prosecution unit and shall make advanced quarterly payments to the
Insurance Commissioner during fiscal year two thousand six for the actual operational expenses
incurred as a direct result of this transfer: Provided, That the payments and expenses shall be
reconciled prior to the final fiscal year transfer and any unexpended amount shall be deducted from
the final quarter's payment. This reimbursement methodology shall repeat for fiscal year two
thousand seven. Any amounts transferred under this section to the Insurance Commissioner shall
be appropriated by the Legislature. The commission's inspector general shall serve as the initial
inspector general for the Insurance Commissioner;
(A) The inspector general shall, with the consent and advice of the executive director, employ
all personnel as necessary for the institution, development and finalization of procedures and
investigations which serve to ensure that only necessary and proper workers' compensation benefits
and expenses are paid to or on behalf of injured employees and to insure employers subscribe to and
pay the proper premium to the West Virginia workers' compensation commission. Qualification,
compensation and personnel practice relating to the employees of the fraud and abuse unit, including that of the position of inspector general, shall be governed by the provisions of the statutes, and rules
and regulations of the classified service pursuant to article six, chapter twenty-nine of this code. The
inspector general shall supervise all personnel, which collectively shall be referred to in this chapter
as the fraud and abuse unit;
(B) The fraud and abuse unit shall have the following powers and duties:
(i) The fraud and abuse unit shall propose for promulgation by the board of managers rules
for determining the existence of fraud and abuse as it relates to the workers' compensation system
in West Virginia;
(ii) The fraud and abuse unit will be responsible for the initiation, development, review and
proposal for promulgation by the board of managers of rules regarding the existence of fraud and
abuse as it relates to the workers' compensation system in West Virginia;
(iii) The fraud and abuse unit will take action to identify and prevent and discourage any and
all fraud and abuse;
(iv) The fraud and abuse unit, in cases of criminal fraud, has the authority to review and
prosecute those cases for violations of sections twenty-four-e, twenty-four-f, twenty-four-g and
twenty-four-h, article three, chapter sixty-one of this code, as well as any other criminal statutes that
may be applicable. In addition the fraud and abuse unit not only has the authority to prosecute and
refer cases involving criminal fraud to appropriate state authorities for prosecution, but it also has
the authority, and is encouraged, to cooperate with the appropriate federal authorities for review and
possible prosecution, by either state or federal agencies, of cases involving criminal fraud concerning
the workers' compensation system in West Virginia;
(v) The fraud and abuse unit, in cases which do not meet the definition of criminal fraud, but
would meet a reasonable person's definition of an abuse of the workers' compensation system, shall
take the appropriate action to discourage and prevent such abuse. Furthermore, the fraud and abuse
unit shall assist the commission to develop evidence of fraud or abuse which can be used pursuant
to the provisions of this chapter to suspend, and where appropriate, terminate, a claimant's benefits. In addition, evidence developed pursuant to these provisions can be used in hearings before the
office of judges on protests to commission decisions terminating, or not terminating, temporary total
disability benefits; and
(vi) The fraud and abuse unit, is expressly authorized to initiate investigations and participate
in the development of, and if necessary, the prosecution of any health care provider, including a
provider of rehabilitation services, alleged to have violated the provisions of section three-c, article
four of this chapter;
(C) Specific personnel, designated by the inspector general, shall be permitted to operate
vehicles owned or leased for the state displaying Class A registration plates;
(D) Notwithstanding any provision of this code to the contrary, specific personnel designated
by the inspector general may carry handguns in the course of their official duties after meeting
specialized qualifications established by the governor's committee on crime, delinquency and
correction, which qualifications shall include the successful completion of handgun training provided
to law-enforcement officers by the West Virginia state police: Provided, That nothing in this
subsection shall be construed to include the personnel so designated by the inspector general to carry
handguns within the meaning of the term law-enforcement official as defined in section one, article
twenty-nine, chapter thirty of this code;
(E) The fraud and abuse unit is not subject to any requirement of article nine-a, chapter six
of this code and the investigations conducted by the fraud and abuse unit and the materials placed
in the files of the unit as a result of any such investigation are exempt from public disclosure under
the provisions of chapter twenty-nine-b of this code;
(F) In the event that a final judicial decision adjudges that the statewide prosecutorial powers
vested by this subdivision in the fraud and abuse unit may only be exercised by a public official other
than an employee of the fraud and abuse unit, then to that extent the provisions of this subdivision
vesting statewide prosecutorial power shall thenceforth be of no force and effect, the remaining
provisions of this subdivision shall continue in full force and effect and prosecutions hereunder may only be exercised by the prosecuting attorneys of this state and their assistants or special assistant
prosecuting attorneys appointed as provided by law;
(23) Enter into interagency agreements to assist in exchanging information and fulfilling the
default provisions of this chapter;
(24) Notwithstanding any provision of this code to the contrary, the executive director, under
emergency authorization:
(A) May expend up to fifty thousand dollars for purchases of and may contract for goods and
services without securing competitive bids. This emergency spending authority expires on the first
day of July, two thousand five; and
(B) May expend such sums as the executive director determines are necessary for
professional services, contracts for the purchase of an automated claims administration system and
associated computer hardware and software in the administration of claims for benefits made under
provisions of this chapter and contracts for technical services and related services necessary to
develop, implement and maintain the system and associated computer hardware and software. The
provisions of article three, chapter five-a of this code relating to the purchasing division of the
department administration shall not apply to these contracts. The director shall award the contract
or contracts on a competitive basis. This emergency spending authority expires on the thirty-first
day of December, two thousand six;
(25) Establish an employer violator system to identify individuals and employers who are in
default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the
commission. The employer violator system shall prohibit violators who own, control or have a ten
percent or more ownership interest, or other ownership interest as may be defined by the
commission, in any company from obtaining or maintaining any license, certificate or permit issued
by the state until the violator has paid all moneys owed to the commission or has entered into and
remains in compliance with a repayment agreement;
(26) Propose the designation of health care providers to make decisions for the commission regarding appropriateness of medical services; and
(27) Study the correlation between premium tax merit rating for employers and the safety
performance of employers. This study shall be completed prior to the first day of July, two thousand
four, and the results thereof provided to the board of managers.
(28) Upon termination of the commission, accomplish the transfer to the Insurance
Commissioner established in article two-c of this chapter, the Insurance Commissioner, and any
other applicable state agency or department, of the functions necessary for the regulation of the
workers' compensation insurance industry, including, but not limited to, the following commission
functions: rate making, self-insurance, office of judges and board of review. The Executive Director
may select persons that are assigned to these functions on the effective date of the enactment of this
section to be assigned and become employees of the company as established in article two-c of this
chapter. The Executive Director may, in consultation with the Insurance Commissioner, select
persons that are assigned to the Insurance Commissioner. The commission shall determine its fiscal
year two thousand six budget for each of these functions, reduce the budget amount attributable to
self-insured employers for these functions and shall make advanced quarterly payments to the
Insurance Commissioner during fiscal year two thousand six for the actual operational expenses
incurred as a direct result of this transfer. The amount shall include the funds necessary to operate
the industrial council and the Insurance Commissioner shall be administratively responsible for the
industrial council's budget: Provided, That the payments and expenses shall be reconciled prior to
the final fiscal year transfer and any unexpended amount shall be deducted from the final quarter's
payment. This reimbursement methodology shall repeat for fiscal year two thousand and seven.
Any amounts transferred under this section to the Insurance Commissioner shall be appropriated by
the Legislature. For the final calendar quarter of two thousand five and the first and second calendar
quarters of the year two thousand six, all self-insured employers shall remit to the Insurance
Commissioner on a quarterly basis the administrative component of their fiscal year two thousand
six rate. For the fiscal year beginning the first day of July, two thousand six, self-insured employers shall remit an administrative charge to the Insurance Commissioner in an amount determined by the
commissioner. All self-insured employer advance deposits shall transfer from the commission to
the Insurance Commissioner upon termination of the commission.
(29) Perform all duties set forth in article two-c of this chapter.
§23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and agents making contracts on behalf
of the state of West Virginia or any political subdivision thereof shall withhold payment in the final
settlement of contracts until the receipt of a certificate from the commission or the company created
in article two-c of this chapter to the effect that all payments, interest and penalties thereon accrued
against the contractor under this chapter as of the termination of the commission have been paid or
that provisions satisfactory to the commission or company created in article two-c of this chapter
have been made for payment. Any official violating this subsection is guilty of a misdemeanor and,
on conviction thereof, shall be fined not more than one thousand dollars or confined in the county
or regional jail for not more than one year, or both fined and confined.
(b) Any agency of the state, for the limited purpose of intercepting, pursuant to section five-a,
article two of this chapter, any payment by or through the state to an employer who is in default in
payment of contributions, premiums, deposits, interest or penalties under the provisions of this
chapter, shall assist the commission or company created in article two-c of this chapter in collecting
the payment that is due under subsection (a) of this section. For this purpose, disclosure of joint
delinquency and default lists of employers with respect to unemployment compensation as provided
in section six-c, article one, chapter twenty-one-a of this code and workers' compensation
contributions, premiums, interest, deposits or penalties is authorized. The commission and the
bureau of employment programs may enter into an interagency agreement to effect the provisions
of this section. The lists may be in the form of a computerized database to be accessed by the
auditor, the department of tax and revenue, the department of administration, the division of
highways or other appropriate state agency or officer.
§23-1-1e. Transfer of assets and contracts; ability to acquire, own, lease and otherwise
manage property.
(a) With the establishment of the workers' compensation commission, all assets and contracts,
along with rights and obligations thereunder, obtained or signed on behalf of the workers'
compensation division of the bureau of employment programs in furtherance of the purposes of this
chapter, are hereby transferred and assigned to the workers' compensation commission.
(b) From the termination of the commission through the thirtieth day of June, two thousand
eight, the company may continue to contract and exchange data and information with the office of
information, services and communication, the bureau of employment programs, the department of
motor vehicles, various child support enforcement agencies and other similar state agencies and
entities in a manner similar to the commission to accomplish the intent of this chapter.
§23-1-1g. Legislative intent to create a quasi-public entity.
In recognition of the impact a state's workers' compensation premium levels may have on
the state's ability to conduct economic development, and the resulting need to operate the state's
workers' compensation system in such a manner that will enable the lowest premiums to be charged
employers while at the same time ensuring adequate benefit levels are provided to injured workers,
it is the intent of the Legislature that the workers' compensation commission remain a commission
of the state as provided in article two, chapter five-f of this code until the company created in article
two-c of this chapter is created and operational and the New Fund created in article two-c of this
chapter has been funded. Until the termination of the commission, and in order for the commission
to be able to capture the efficiencies associated with private sector operations, the workers'
compensation commission is exempt from the provisions of the following effective upon the date
upon which this enactment is made effective by the Legislature:
(a) Article three, chapter five-a, related to the department of administration purchasing
division; and
(b) Section eleven, article three, chapter twelve, relating to appropriations, expenditures and deductions.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under articles one through five, inclusive, of
this chapter, the commission 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 the
depositions shall be upon reasonable notice to claimant and employer or other affected persons or
their respective attorneys. The commission shall designate the person to represent it for the taking
of the deposition.
(b) The commission also has 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 the depositions was given to the other parties or their attorneys,
if any: Provided, That the commission, upon due notice to the parties, has authority to refuse or
permit the taking of depositions or to reject the depositions after they are taken, if they were taken
at a place or under circumstances which imposed an undue burden or hardship upon the other parties.
The commission's discretion to accept, refuse to approve or reject the depositions is binding in the
absence of abuse of the discretion.
(c) The powers and duties set forth in the section shall be transferred from the workers'
compensation commission to the Insurance Commissioner upon termination of the commission.
§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 workers' compensation commission shall adopt reasonable and proper rules of
procedure, regulate and provide for the kind and character of notices, and the service of the notices,
in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the
method of taking and furnishing of evidence 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 commission or before the duly authorized
representative of the commission, 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
commission as being qualified to represent a claimant or who is an individual otherwise found to be
qualified by the commission to act as a representative. The representative shall participate in the
presentation of facts, figures and factual conclusions as distinguished from the presentation of legal
conclusions in respect to the facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the commission or before the duly authorized
representative of the commission, 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 the facts and figures; or
(4) By a representative from an employer service company who has been recognized by the
commission as being qualified to represent an employer or who is an individual otherwise found to
be qualified by the commission to act as a representative. The representative shall participate in the
presentation of facts, figures and factual conclusions as distinguished from the presentation of legal
conclusions in respect to the facts and figures.
(d) The commission 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 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. The summary shall be provided to the claimant upon his or her request.
Any representative or attorney of the claimant must agree to provide the claimant with only the
summary before the full report is provided to the representative or attorney for his or her use in
preparing the claimant's case. The 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, inclusive, of this chapter in which
the commission 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 is sufficient notice to the party
represented.
(h) The powers and duties set forth in the section shall be transferred from the workers'
compensation commission to the Insurance Commissioner upon termination of the commission.
§23-1-14. Forms.
The commission shall prepare and furnish free of cost forms (and provide in his or her rules
for their distribution so that they may be readily available) of applications for benefits for
compensation from the workers' compensation fund, or directly from employers, as the case may be,
notices to employers, proofs of injury or death, of medical attendance, of employment and wage
earnings, and any other forms considered proper and advisable. It is the duty of employers to
constantly keep on hand a sufficient supply of the forms. The powers and duties set forth in the
section shall be transferred from the workers' compensation commission to the Insurance
Commissioner as of the termination of the commission.
§23-1-15. Procedure before commission.
The commission, and the Insurance Commissioner effective upon termination of the
commission, are not bound by the usual common-law or statutory rules of evidence, but shall adopt
formal rules of practice and procedure as herein provided, and may make investigations in a manner
that in his or her judgment is best calculated to ascertain the substantial rights of the parties and to
carry out the provisions of this chapter.
§23-1-17. Annual report by the Insurance Commissioner and occupational pneumoconiosis
board.
Annually, on or about the fifteenth day of September in each year, the executive director
Insurance Commissioner and the occupational pneumoconiosis board shall make a report as of the
thirtieth day of June addressed to the governor, which shall include a statement of the causes of the
injuries for which the awards were made, an explanation of the diagnostic techniques used by the
occupational pneumoconiosis board and all examining physicians to determine the presence of
disease, the extent of impairment attributable thereto, a description of the scientific support for the
diagnostic techniques and a summary of public and private research relating to problems and prevention of occupational diseases. The report shall include a detailed statement of all
disbursements, and the condition of the fund, together with any specific recommendations for
improvements in the workers' compensation law and for more efficient and responsive
administration of the workers' compensation law, which the executive director considers appropriate.
Copies of all annual reports shall be filed with the secretary of state and shall be made available to
the Legislature and to the public at large.
§23-1-19. Civil remedies.
(a) Any person, firm, corporation or other entity which willfully, by means of false statement
or representation, or by concealment of any material fact, or by other fraudulent scheme, device or
artifice on behalf of himself, itself or others, obtains or attempts to obtain benefits, payments,
allowances or reduced premium costs or other charges, including workers' compensation coverage
under the programs of the workers' compensation commission, the company, a private carrier or self-
insured employer, to which he or it is not entitled, or in a greater amount than that to which he or it
is entitled, shall be liable to the workers' compensation commission, the company, the private carrier
or self-insured employer, in an amount equal to three times the amount of such benefits, payments
or allowances to which he or it is not entitled and shall be liable for the payment of reasonable
attorney fees and all other fees and costs of litigation.
(b) No criminal action or indictment need be brought against any person, firm, corporation
or other entity as a condition for establishing civil liability hereunder.
(c) A civil action under this section may be prosecuted and maintained on behalf of the
workers' compensation commission by the attorney general and his assistants or, the Insurance
Commissioner, the company, a private carrier or self-insured employer by any attorney in contract
with or employed by the workers' compensation commission, the Insurance Commissioner, the
company, a private carrier or self-insured employer to provide such representation.
(d) Venue for a civil action under this section shall be either in the county in which the
defendant resides, or in Kanawha County as selected by the commission or Insurance Commissioner. Upon creation of the company pursuant to article two-c of this chapter, venue for a civil action under
this section for the company, private carriers and self-insured employers shall be either in the county
in which the defendant resides or the county in which the injured worker was employed, as selected
by the company, the private carrier or self-insured employer.
(e) The remedies and penalties provided in this section are in addition to those remedies and
penalties provided elsewhere by law.
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 required to subscribe to and pay
premium taxes into the workers' compensation fund for the protection of their employees and are
subject to all requirements of this chapter and all rules prescribed by the workers' compensation
commission with reference to rate, classification and premium payment: Provided, That rates will
be adjusted by the commission 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;
(2) Employers of five or fewer full-time employees in agricultural service;
(3) Employers of employees while the employees are employed without the state except in cases of temporary employment without the state;
(4) Casual employers. An employer is 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;
(5) Churches;
(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, chapter sixteen of this code: Provided, That if any
of the employers described in this subdivision have paid employees, to the extent of those paid
employees, the employer shall 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, the
coverage remains optional.
(8) Any employer whose employees are eligible to receive benefits under the federal
Longshore and Harbor Workers' Compensation Act, 33 U. S. C. §901, et seq., but only for those
employees eligible for those benefits.
(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 the clergyman
from the 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 that case are subject to all requirements of this chapter and all rules and regulations
prescribed by the commission 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 the employers to choose to subscribe to and to pay premiums into the fund shall not impose any
liability upon them other than any liability that 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 provided for in this
section, and at the time of making application to the workers' compensation commission, the
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 commission. At the time of making application the
employer shall deposit with the commission to the credit of the workers' compensation fund the
amount required by section five of this article. That amount shall be returned to the employer if the
employer's application is rejected by the commission. Upon notice to the employer of the acceptance
of his or her application by the commission, he or she is 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 under this chapter shall, at the time of making application to the
commission in addition to other requirements of this chapter, furnish the commission with a
certificate from the secretary of state, where the 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 a foreign corporation employer shall be accepted by the commission until the 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) Any political subdivision of the state including county commissions and municipalities,
boards of education, or emergency services organizations organized under the auspices of a county
commission may elect not to provide coverage to any elected official. The election not to provide
coverage does not apply to individuals in appointed positions or to any other employees of the
political subdivision;
(2) If an employer is a partnership, sole proprietorship, association or corporation, the
employer may elect not to include as an "employee" within this chapter, any member of the
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 is elected by the
board of directors at the time and in the manner prescribed by the bylaws. Other officers and
assistant officers that are considered necessary may be elected or appointed by the board of directors
or chosen in any other manner prescribed by the bylaws and, if elected, appointed or chosen, the
employer may elect not to include the 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 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 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 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 for performing the duties in the capacity of an
employee; or
(C) 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;
(3) If an employer is a limited liability company, the employer may elect not to include as
an "employee" within this chapter a total of no more than four persons, each of whom are acting in
the capacity of manager, officer or member of the company.
(h) In the event of election under subsection (g) of this section, the employer shall serve upon
the commission written notice naming the positions not to be covered and shall not include the
"employee's" remuneration for premium purposes in all future payroll reports, and the partner,
proprietor or corporate or executive officer is not considered an employee within the meaning of this
chapter after the notice has been served. Notwithstanding the provisions of subsection (g), section
five of this article, if an employer is delinquent or in default or has not subscribed to the fund even
though it is obligated to do so under the provisions of this article, any 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" means employment by an employer
which is not a casual employer under this section.
(j) Upon the termination of the commission, the criteria governing which employer shall or
may subscribe to the workers' compensation commission shall also govern which employers shall
or may purchase workers' compensation insurance under article two-c of this chapter.
§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 includes 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 does not include one providing goods rather than services. For
purposes of this subsection, extraction of natural resources is a provision of services. In the event
that a subcontracting employer defaults on its obligations to make payments to the commission, then
the primary contractor is liable for the payments. However, nothing contained in this section shall
extend or except to a primary contractor or subcontractors the provisions of section six, six-a or eight
of this article. This section is applicable only with regard to subcontractors with whom the primary
contractor has a contract for any work or services for a period longer than thirty days: Provided,
however, That this section is also 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.
It is the intent of the Legislature that no contractor, whether a primary contractor, subcontractor or
sub-subcontractor, escape or avoid liability for any workers' compensation premium, assessment or
tax. The executive director shall propose for promulgation a rule to effect this purpose on or before
the thirty-first day of December, two thousand three.
(b) A primary contractor may avoid initial liability under subsection (a) of this section if it
obtains from the executive director, 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 results in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted 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 commission is entitled to collect only once for the amount of premiums,
premium deposits and interest due to the default, but the commission 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 commission inform the primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default, the commission shall 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 commission by the
primary contractor. The mailing is good and sufficient notice to the primary contractor of the
subcontractor's default. However, the primary contractor is not liable under this section until the first
day of the calendar quarter following the calendar quarter in which the notice is given and then the
liability is only for that following calendar quarter and thereafter and only if the subcontract has not
been terminated: Provided, That the commission is entitled to collect only once for the amount of
premiums, premium deposits and interest due to the default, but the commission 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 in this section, the
default or failure is 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 commission may take any action authorized by section five-a of this article in
furtherance of its efforts to collect amounts due from the primary contractor under this section.
(f) Effective upon termination of the commission, this section shall be applicable only to
unpaid premiums due the commission or the old fund as provided in article two-c of this chapter.
§23-2-2. Commission to be furnished information by employers, state tax commissioner and division of unemployment compensation; secrecy of information;
examination of employers, etc.; violation a misdemeanor.
(a) Every employer shall furnish the executive director, upon request, all information required
by him or her to carry out the purposes of this chapter. Every employer shall have a continuous and
ongoing duty to maintain current information about its activities, risks and rates on the books of the
commission. The executive director, or any person employed by the commission for that purpose,
may examine under oath any employer or officer, agent or employee of any employer.
(b) Notwithstanding the provisions of any other statute to the contrary, specifically, but not
exclusively, sections five and five-b, article ten, chapter eleven of this code and section eleven,
article ten, chapter twenty-one-a of this code, the executive director of the workers' compensation
commission may receive the following information:
(1) Upon written request to the state tax commissioner: The names, addresses, places of
business and other identifying information of all businesses receiving a business franchise
registration certificate and the dates thereof; and the names and social security numbers or other tax
identification numbers of the businesses and of the businesses' workers and employees, if otherwise
collected, and the quarterly or other applicable reporting period and annual gross wages or other
compensation paid to the workers and employees of businesses reported pursuant to the requirement
of withholding of tax on income.
(2) Upon written application to the division of unemployment compensation: In addition to
the information that may be released to the workers' compensation commission for the purposes of
this chapter under the provisions of chapter twenty-one-a of this code, the names, addresses and other
identifying information of all employing units filing reports and information pursuant to section
eleven, article ten, chapter twenty-one-a of this code as well as information contained in those reports
regarding the number and names, addresses and social security numbers of employees employed and
the gross quarterly or other applicable reporting period wages paid by each employing unit to each
identified employee.
(c) All information acquired by the workers' compensation commission pursuant to
subsection (b) of this section shall be used only for auditing premium payments, assisting in a wage
determination, assisting in the determination of employment status and registering businesses under
the single point of registration program as defined in section two, article one, chapter eleven as set
forth in article twelve, chapter eleven of this code. The workers' compensation commission, upon
receiving the business franchise registration certificate information made available pursuant to
subsection (b) of this section, shall contact all businesses receiving a business franchise registration
certificate and provide all necessary forms to register the business under the provisions of this article.
Any officer or employee of this state who uses the information obtained under this section in any
manner other than the one stated in this section or elsewhere authorized in this code, or who divulges
or makes known in any manner any of the information obtained under this section, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or
incarcerated in the county or regional jail for not more than one year, or both together with cost of
prosecution.
(d) Reasonable costs of compilation and production of any information made available
pursuant to subsection (b) of this section shall be charged to the workers' compensation commission.
(e) Information acquired by the commission pursuant to subsection (b) of this section is not
subject to disclosure under the provisions of chapter twenty-nine-b of this code.
(f) The right to request, gather and maintain information set forth in this section shall transfer
to the Insurance Commissioner and the industrial council upon termination of the commission.
§23-2-3. Report forms and other forms for use of employers.
The commission, and effective upon termination of the commission, the Insurance
Commissioner, shall prepare and furnish report forms for the use of employers subject to this
chapter. Every employer receiving from the commission any form or forms with direction for
completion and returning to the commission shall return the form, within the period fixed by the
commission, completed as to answer fully and correctly all pertinent questions in the form, and if unable to do so, shall give good and sufficient reasons for the failure. Every employer subject to the
provisions of this chapter shall make application to the commission on the forms prescribed by the
commission for that purpose; and any employer who terminates his or her business or for any other
reason is no longer subject to this chapter shall immediately notify the commission on forms to be
furnished by the commission for that purpose.
§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems;
accounts.
(a) The executive director with approval of the board of managers 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 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) Any further matters that are necessary and consistent with the goals of this chapter;
(2) The rule shall require the establishment of a program under which the commissioner may
grant discounts on premium rates for employers who meet either of the following requirements:
(A) Have not incurred a compensable injury for one year or more and who maintain an
employee safety committee or similar organization and make periodic safety inspections of the
workplace;
(B) Successfully complete a loss prevention program, including establishment of a drug-free
workplace, prescribed by the commission's safety and loss control office and conducted by the commission or by any other person approved by the commission;
(3) The rule shall be consistent with the duty of the executive director and the board of
managers 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 the fund and in keeping with their fiduciary obligations to the fund;
(4) The rule shall be consistent with generally accepted accounting principles;
(5) The rule shall be consistent with classification and rate-making methodologies found in
the insurance industry; and
(6) 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) In accordance with generally accepted accounting principles, the workers' compensation
commission 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
fund; 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.
(c) Prospective rates set in accordance with the provisions of this article shall at all times be
financially sound in accordance with generally accepted accounting principles and fully fund the
prospective claim obligations for the year in which the rates were made. Rates, surcharges or
assessments for deficit management and deficit reduction purposes shall be fair and equitable,
financially sound in accordance with generally accepted accounting principles and sufficient to meet
the payment obligations of the fund.
(d) Notwithstanding any provision of subsection (c) of this section to the contrary, except for
those increases made effective for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article three, chapter twenty-one-a of this
code taken prior to the effective date of the amendment and reenactment of this section, base rates,
assessments and surcharges, except for individual employer merit rate adjustments, shall not be increased during fiscal years two thousand four and two thousand five and two thousand six:
Provided, That the portion of the rate increase attributable to claims management incentive
adjustments, as determined by the compensation programs performance council for fiscal year two
thousand four prior to the effective date of the amendment and reenactment of this section by the
Legislature in the year two thousand three, shall not be considered a part of the employer's premium
taxes and shall not be subject to collection by the commission.
(e) Claims management incentive adjustments, whether imposed in a manner that would
result in either a debit or a credit to any employer's account, shall not be considered by the board of
managers in its future rate determinations.
§23-2-5. Application; payment of premium taxes; gross wages; payroll report; deposits;
delinquency; default; reinstatement; payment of benefits; notice to
employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation fund, each employer who is required
to subscribe to the fund or who elects to subscribe to the fund shall pay premium taxes calculated
as a percentage of the employer's gross wages payroll as defined by the commission at the rate
determined by the commission and then in effect plus any additional premium taxes developed from
rates, surcharges or assessments as determined by the commission. At the time each employer
subscribes to the fund, the application required by the commission shall be filed and a premium
deposit equal to the first quarter's estimated premium tax payment shall be remitted. The minimum
quarterly or other reporting period premium to be paid by any employer is twenty-five dollars.
(1) Thereafter, the premium taxes shall be paid quarterly or at other payment intervals
established by the commission on or before the last day of the month following the end of the quarter
or designated payment interval and shall be the prescribed percentage of the entire gross wages of
all employees, from which net payroll is calculated and paid, during the preceding quarter or other
designated payment interval. The commission may require employers, in accordance with the
provisions of rules proposed by the executive director and promulgated by the board of managers, to report gross wages and pay premium taxes monthly or at other intervals.
(2) Every subscribing employer shall make a gross wages payroll report to the commission
for the preceding reporting period. The report shall be on the form or forms prescribed by the
commission and shall contain all information required by the commission.
(3) After subscribing to the fund, each employer shall remit with each premium tax payment
an amount calculated to be sufficient to maintain a premium deposit equal to the premium payment
for the previous reporting period. The commission may reduce the amount of the premium deposit
required from seasonal employers for those quarters reporting periods during which employment is
significantly reduced. If the employer pays premium tax on a basis other than quarterly, the
commission may require the deposit to be based upon some other time period. The premium deposit
shall be credited to the employer's account on the books of the commission and used to pay premium
taxes and any other sums due the fund when an employer becomes delinquent or in default as
provided in this article.
(4) All premium taxes and premium deposits required by this article to be paid shall be paid
by the employers to the commission, which shall maintain a record of all sums so received. Any sum
mailed to the commission is considered to be received on the date the envelope transmitting it is
postmarked by the United States postal service. All sums received by the commission shall be
deposited in the state treasury to the credit of the workers' compensation commission in the manner
now prescribed by law.
(5) The commission shall 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 executive director and the board of managers.
(b) Failure of an employer to timely pay premium taxes as provided in subsection (a) of this
section, 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 for the delinquency if the commission determines that the delinquency has been caused
by delays in the administration of the fund. The commission shall, in writing, within sixty days of
the end of each quarter reporting period notify all delinquent employers of their failure to timely pay
premium taxes, to timely file a payroll report or to maintain an adequate premium deposit. Each
employer who fails to timely file any payroll report or timely pay the premium tax due with the
report, or both, for any quarter reporting period commencing on and after the first day of July, one
thousand nine hundred ninety-five, shall pay a late reporting or payment penalty of the greater of fifty
dollars or a sum obtained by multiplying the premium tax due with the report by the penalty rate
applicable to that quarter reporting period. The penalty rate to be used in a workers' compensation
commission's fiscal year is calculated annually on the first day of each fiscal year. The penalty rate
used to calculate the penalty for each quarter reporting period in a fiscal year is the quotient, rounded
to the nearest higher whole number percentage rate, obtained by dividing the sum of the prime rate
plus four percent by four. The prime rate is the rate published in the Wall Street Journal on the last
business day of the commission's prior fiscal year reflecting the base rate on corporate loans posted
by at least seventy-five percent of the nation's thirty largest banks. The late penalty shall be paid
with the most recent quarter's reporting period's report and payment and is due when that reporting
period's report and payment are filed. If the late penalty is not paid when due, it may be charged to
and collected by the commission from the employer's premium deposit account or otherwise as
provided by law. The notification shall demand the filing of the delinquent payroll report and
payment of delinquent premium taxes, the penalty for late reporting or payment of premium taxes
or premium deposit, the interest penalty and an amount sufficient to maintain the premium deposit
before the end of the third month following the end of the preceding quarter reporting period.
Interest shall accrue and be charged on the delinquent premium payment and premium deposit
pursuant to section thirteen of this article.
(c) Whenever the commission notifies an employer of the delinquent status of its account, the notification shall explain the legal consequence of subsequent default by an employer required
to subscribe to the fund and the legal consequences of termination of an electing employer's account.
(d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve
the delinquency within the prescribed period, shall place the account in default and shall deprive the
default employer of the benefits and protection afforded by this chapter, including section six of this
article, and the employer is liable as provided in section eight of this article. The default employer's
liability under these sections is retroactive to midnight of the last day of the month following the end
of the quarter reporting period for which the delinquency occurs. The commission shall notify the
default employer of the method by which the employer may be reinstated with the fund. The
commission shall also notify the employees of the employer by written notice as hereinafter provided
in this section.
(e) Failure by any employer, who voluntarily elects to subscribe, to resolve the delinquency
within the prescribed period shall place the account in default and shall automatically terminate the
election of the employer to pay into the workers' compensation fund and shall deprive the 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 the employer is liable as provided in section eight
of this article. The default employer's liability under that section is retroactive to midnight of the last
day of the month following the end of the quarter payment period 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 the protection terminated at the time of their employer's
default.
(f) (1) Except as provided 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 commission and
payment into the fund of all unpaid premiums, an adequate premium deposit, accrued interest and
the penalty for late reporting and payment. Interest is calculated as provided by section thirteen of
this article.
The commission shall not have the authority to waive either premium or accrued interest:
Provided, That until termination of the commission, the commissioner shall have the authority to
waive either premium or accrued interest if the waiver is part of the full and final resolution of
administrative or civil litigation. The provisions of section seventeen of this article apply to any
action or decision of the commission under this section.
(2) The commission may restore a defaulted or terminated employer through a reinstatement
agreement. The reinstatement agreement shall require the payment in full of all premium taxes,
premium deposits, the penalty for late reporting and payment, past accrued interest and future interest
calculated pursuant to the provisions of section thirteen of this article. Notwithstanding the filing
of a reinstatement application or the entering into of a reinstatement agreement, the commission is
authorized to file a lien against the employer as provided by section five-a of this article. In addition,
entry into a reinstatement agreement is discretionary with the commission. Its discretion shall be
exercised in keeping with the fiduciary obligations owed to the workers' compensation fund. If the
commission declines to enter into a reinstatement agreement and if the employer does not comply
with the provisions of subdivision (1) of this subsection, the commission may proceed with any of
the collection efforts provided by section five-a of this article or as otherwise provided by this code.
Applications for reinstatement shall: (A) Be made upon forms prescribed by the commission; (B)
include a report of the gross wages payroll of the employer which had not been reported to the
commission during the entire period of delinquency and default. The 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 determined 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 is entitled to the benefits and protection of this chapter on the day a
properly completed and acceptable application which is accompanied by the application payment is
received by the commission: Provided, That if the commission reinstates an employer subject to the
terms of a reinstatement agreement, the subsequent failure of the employer to make scheduled
payments or to pay accrued or future interest in accordance with the reinstatement agreement or to
timely file current reports and to pay current premiums within the month following the end of the
period for which the report and payment are due, or to otherwise maintain its account in good
standing or, if the reinstatement agreement does not require earlier restoration of the premium
deposit, to restore the premium deposit to the required amount by the end of the repayment period
shall cause the reinstatement application and the reinstatement agreement to be null, void and of no
effect, and the employer is denied the benefits and protection of this chapter effective from the date
that the employer's account originally became delinquent.
(3) Any employer who fails to maintain its account in good standing with regard to
subsequent premium taxes and premium deposits after filing an application for reinstatement and
prior to the final resolution of an application for reinstatement by entering into a reinstatement
agreement or by payment of the liability in full as provided 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 the employer's account
originally became delinquent.
(4) Following any failure of an employer to comply with the provisions of a reinstatement
agreement, the commission may make and continue with any of the collection efforts provided by
this chapter or elsewhere in this code even if the employer files another reinstatement application.
(g) With the exception noted in subsection (h), section one of this article, no employee of an
employer required by this chapter to subscribe to the workers' compensation fund shall be denied
benefits provided by this chapter because the employer failed to subscribe or because the employer's account is either delinquent or in default.
(h) (1) The provisions of this section shall not deprive any individual of any cause of action
which has accrued as a result of an injury or death which occurred during any period of delinquency
not resolved in accordance with the provisions of this article, or subsequent failure to comply with
the terms of the repayment agreement.
(2) Upon withdrawal from the fund or termination of election of any employer, the employer
shall be refunded the balance due the employer of its deposit, after deducting all amounts owed by
the employer to the workers' compensation fund and other agencies of this state, and the commission
shall notify the employees of the employer of the termination in the manner as the commission may
consider best and sufficient.
(3) Notice to employees provided in this section shall be given by posting written notice that
the employer is defaulted under the compensation law of West Virginia, and in the case of employers
required by this chapter to subscribe and pay premiums to the fund, that the defaulted employer is
liable to its employees for injury or death, both in workers' compensation benefits and in damages
at common law or by statute; and in the case of employers not required by this chapter to subscribe
and pay premiums to the fund, but voluntarily electing to do so as provided in this article, that neither
the employer nor the employees are protected by the law as to any injury or death sustained after the
date specified in the notice. The notice shall be in the form prescribed by the commission and shall
be posted in a conspicuous place at the chief works of the employer, as it appears in records of the
commission. If the chief works of the employer cannot be found or identified, the notices shall be
posted at the front door of the courthouse of the county in which the chief works are located,
according to the commission's records. Any person who shall, prior to the reinstatement of the
employer, as provided in this section, or prior to sixty days after the posting of the notice, whichever
shall first occur, remove, deface or render illegible the notice, shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined one thousand dollars. The notice shall state this provision
upon its face. The commission may require any sheriff, deputy sheriff, constable or other official of the state of West Virginia, authorized to serve civil process, to post the notice and to make return
thereof of the fact of the posting to the commission. Any failure of the officer to post any notice
within ten days after he or she has received the notice from the commission, without just cause or
excuse, constitutes 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 the failure has an action against the official, and upon any official bond he or
she may have given, for the damages as the person may actually have incurred, but not to exceed,
in the case of any surety upon the bond, the amount of the penalty of the bond. Any official posting
the notice as required in this subdivision is 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.
The fee shall be paid by the commission out of any funds at its disposal, but shall be charged by the
commission against the account of the employer to whose delinquency the 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 workers' compensation commission 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, the employer shall pay the costs of the action. A civil action
under this section shall be given preference on the calendar of the court over all other civil actions.
Upon prevailing in a civil action, the commission is entitled to recover its attorneys' fees and costs
of action from the employer.
(b) In addition to the provisions of subsection (a) of this section, any payment, interest and
penalty due and unpaid under this chapter is a personal obligation of the employer immediately due and owing to the commission and shall, in addition, be a lien enforceable against all the property of
the employer: Provided, That the lien shall not 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 the lien may be enforced as other judgment liens are enforced through the provisions
of said chapter and the same is considered deemed by the circuit court to be a judgment lien for this
purpose.
(c) In addition to all other civil remedies prescribed, the commission 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 commission has good reason to believe that the property or a substantial portion of
the property 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, the commission may
likewise distrain in the name of the state before the delinquency occurs. For that purpose, the
commission may require the services of a sheriff of any county in the state in levying the distress in
the county in which the sheriff is an officer and in which the personal property is situated. A sheriff
collecting any payment, interest and penalty thereon is entitled to the compensation as provided by
law for his or her services in the levy and enforcement of executions. Upon prevailing in any
distraint action, the commission is entitled to recover 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 is operated in connection with a receivership or insolvency proceeding in any state court
in this state, the court under whose direction the 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 the payments, interest and penalties as they 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 commission that all payments, interest and penalties thereon against the corporation which
is an employer under this chapter have been paid or that provision satisfactory to the commission 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
reporting periods, which reporting periods need not be consecutive, and remains in default after due
notice, the commission may bring action in the circuit court of Kanawha County to enjoin the
employer from continuing to carry on the business in which the liability was incurred: Provided, That
the commission may as an alternative to this action require the delinquent employer to file a bond
in the form prescribed by the commission 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 or employers' group to be self-insured and to provide own
system of compensation; exceptions; catastrophe coverage; self
administration; rules; penalties; regulation of self-insurers.
(a) Notwithstanding any provisions of this chapter to the contrary, the following types of
employers or employers' groups may apply for permission to self-insure their workers' compensation
risk including their risk of catastrophic injuries.
(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;
(B) Any employer or group of employers as provided for subdivision (c) 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; or
(C) Any group of employers who are subject to the same collective bargaining agreement or
who are in a collective bargaining group may apply to the commission to collectively self-insure their
obligations under this chapter. The employers' group must individually and collectively meet the
conditions set forth in paragraph (A) or (B) of this subdivision. There shall be joint and several
liability for all groups of employers who choose to self-insure under the provisions of this article.
Any employer who is signatory to a collective bargaining agreement that allows for participation in
a group workers' compensation insurance program may join with any other employer or employers
that are signatory to a collective bargaining agreement or agreements that allow for participation in
a group workers' compensation program and jointly apply to the commission to collectively self-
insure their obligations under this chapter. The employers must collectively meet the conditions set
forth in paragraph (A) or (B) of this subdivision. There shall be joint and several liability for all
employers who choose to jointly self-insure under the provisions of this article.
(2) In order to be approved for self-insurance status, the employer shall:
(A) Have an effective health and safety program at its workplaces; and
(B) Provide security or bond in an amount and form determined by the executive director
with the approval of the board of managers which shall balance the employer's financial condition
based upon an analysis of its audited financial statements and the full accrued value of current
liability for future claim payments based upon generally accepted actuarial and accounting principles
of the employer's existing and expected liability.
(3) Any employer whose record upon the books of the commission 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 the employer, shall
not be granted the right, individually and directly or from the benefit funds or system of
compensation, to be self-insured until the employer has paid into the workers' compensation fund
the amount of the 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,
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 commission. This review shall include a redetermination 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 cause the employer's self-insurance status to be terminated by the workers'
compensation commission. 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 furnishes security or bond, including replacement and
amended bonds and other securities, as surety to ensure the employer's or guarantor's payment of all
obligations under this chapter for which the security or bond was furnished, the security or bond shall
be in the most current form or forms approved and authorized by the commission for use by the
employer or its guarantors, surety companies, banks, financial institutions or others in its behalf for
that purpose.
(b) (1) Notwithstanding any provision in this chapter to the contrary, self-insured employers
shall, effective the first day of July, two thousand four, administer their own claims. The executive
director shall, pursuant to rules promulgated by the board of managers, regulate the administration
of claims by employers granted permission to self-insure their obligations under this chapter. Such
rules shall be promulgated at least thirty days prior to the first day of July, two thousand four. A self-
insured employer shall comply with rules promulgated by the board of managers governing the self-
administration of its claims.
(2) An employer or employers' group who self-insures its risk and self-administers its claims shall exercise all authority and responsibility granted to the commission in this chapter and provide
notices of action taken to effect the purposes of this chapter to provide benefits to persons who have
suffered injuries or diseases covered by this chapter. An employer or employers' group granted
permission to self-insure and self-administer its obligations under this chapter shall at all times be
bound and shall comply fully with all of the provisions of this chapter. Furthermore, all of the
provisions contained in article four of this chapter pertaining to disability and death benefits are
binding on and shall be strictly adhered to by the self-insured employer in its administration of
claims presented by employees of the self-insured employer. Violations of the provisions of this
chapter and such rules relating to this chapter as may be approved by the board of managers may
constitute sufficient grounds for the termination of the authority for any employer to self-insure its
obligations under this chapter. Claim notices currently generated by the commission on behalf of
self-insured employers must be generated and sent by the self-insured employer or its third-party
administrator.
(c) Each self-insured employer shall, on or before the last day of the first month of each
quarter or other assigned reporting period, file with the commission 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 or other assigned reporting period. Each self-insured employer shall pay into the workers'
compensation fund as portions of its self-insured employer 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;
(4) A sum sufficient to maintain as an advance deposit an amount equal to the previous
quarter or other assigned reporting period's payment of each of the foregoing three sums;
(5) A sum as determined by the commission to be sufficient to pay the employer's portion of
rates, surcharges or deficit management and deficit reduction assessments; and
(6) A sum as determined by the commission to pay the employer's portion of self-insured
catastrophic injury benefits, and second injury payments on all self-insured second injury claims
other than second injury claims for those employers self-insured for second injury. Any employer
previously self-insured for second injury benefits shall continue to be responsible for payment of
those benefits.
(d) 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.
(e) Notwithstanding any provision of subsection (d) of this section to the contrary, except for
those increases made effective for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article three, chapter twenty-one-a of this
code taken prior to the effective date of the amendment and reenactment of this section, the portion
of the premium taxes for each self-insured employer as determined under subdivisions (1) through
(6), inclusive, subsection (c) of this section shall not be increased during fiscal years two thousand
four, two thousand five and two thousand six.
(f)(1) If an employer defaults in the payment of any portion of its self-insured employer
premium taxes, surcharges or assessments, the commission shall, in an appropriate case, determine
the full accrued value based upon generally accepted actuarial and accounting principles of the
employer's liability including the costs of all awarded claims and of all incurred but not reported
claims. The amount determined may, in an appropriate case, be assessed against the employer. The
commission may demand and collect the present value of the 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 commission and to the employer's employees is a sufficient basis for reinstating the employer to good standing with the fund. In
addition, any self-insured employer who, without good cause, ceases to make 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,
is in default. The board of managers shall establish by rule the procedures by which the existence
or nonexistence of good cause is to be determined by the commission.
(2) Premium tax assessments are special revenue taxes under and according to the provisions
of state workers' compensation law and are considered 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, Title 11 of the United States 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 commission.
(g) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury
risk as defined in subsection (c), section one, article three of this chapter. A self-insured employer
who elects to insure its catastrophic risk through a policy of excess insurance obtained through a
private insurance carrier approved by the commission shall provide a copy of the policy to the
commission. Upon termination of the commission, self-insured employers shall either self-insure
their catastrophic risk or insure their catastrophic risk through a policy of excess insurance obtained
through a private insurance carrier approved by the Insurance Commissioner. Self-insured
employers shall also reinsure their catastrophic risks.
(1) If the employer does not elect to self-insure its catastrophic risk, 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. As stated in this subsection, this option shall expire
upon termination of the commission. If the employees of that employer suffer injury or death from
a catastrophe, the payment of the resulting benefits shall be made from the catastrophe reserve of the
surplus fund provided for in subsection (b), section one, article three of this chapter. Any portion of an employer's catastrophic liability insured and paid under a policy of insurance purchased by the
employer 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, the security
or bond required in subsection (a) of this section shall include the liability for the catastrophic risk.
(h) 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 be paid by the employer and not the commission.
(i) The commission 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 a pool is created, the board of managers
shall adopt rules for the organizational plan, participation, contributions and other payments which
may be required of self-insured employers under this section. The board of managers may adopt a
rule authorizing the commission 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 the risk pool to serve the needs of
employees, employers and the workers' compensation fund by providing adequate security. The
board of managers, in establishing a security risk pool, may authorize the executive director to use
any assessments, premium taxes and revenues and appropriations as may be made available to the
commission. Effective upon termination of the commission, all statutory and regulatory authority
provided to the commission and board of managers over pools created pursuant to this section shall
transfer to the Insurance Commissioner: Provided, that the funds contained in the security pool shall
be deposited into the Old Fund and the funds contained in the guaranty pool shall be deposited in
the self-insured employer guaranty risk pool created in article two-c of this chapter. All assets held by the commission for security pursuant to 85 CSR §19 (2004) shall transfer to the Insurance
Commissioner.
(j) 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 reports to the commission for a period
of four or more consecutive quarters shall have its status at the commission inactivated and shall
apply for reactivation to status as a self-insured employer prior to its reemployment of employees.
Despite the 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 shall document that it meets the eligibility requirements needed to maintain
self-insured employer 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 and, upon termination of the commission, shall purchase workers' compensation insurance as
provided for in article two-c of this chapter, 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.
(k) In any case under the provisions of this section that 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 commission 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, the employer shall be discharged from any further portion of premium tax liability upon
the award or awards and payment of the award or awards shall be assumed by the commission.
Upon termination of the commission, those self-insured employers may thereafter purchase workers'
compensation insurance as provided for in article two-c of this chapter, but said self-insured
employers shall remain liable for their self-insured employer claims liabilities.
(l) Any employer subject to this chapter, who elects to carry the employer's own risk by being self-insured employer 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 the election's approval and during the period that
the employer is allowed to carry the employer's own risk.
(m) An employer may not hire any person or group to self-administer claims under this
chapter as a third-party administrator unless the person or group has been determined to be qualified
to be a third-party administrator by the commission pursuant to rules adopted by the board of
managers. Any person or group whose status as a third-party administrator has been revoked,
suspended or terminated by the commission shall immediately cease administration of claims and
shall not administer claims unless subsequently authorized by the commission.
(n) All regulatory, oversight, and document gathering authority provided to the commission
under section nine, article two, chapter twenty-three shall transfer to the Insurance Commissioner
and the Industrial Council upon termination of the commission.
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 are entitled to compensation under the provisions
of this chapter and shall not by having received compensation be precluded from making claim
against 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 the third party and
recovers any sum for the claim, the commission or a self-insured employer shall be allowed statutory
subrogation with regard to medical benefits paid as of the date of the recovery. The commission or
self-insured employer shall permit the deduction from the amount received a reasonable attorney's
fee fees and a reasonable portion of costs. It is the duty of the injured worker, his or her dependents, his or her personal representative, or his or her attorney to notify the commission and the employer
when the claim is filed against the third party.
(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 the moneys received which shall exist in favor of the commission 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 remains 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 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 the amendment and reenactment of this section during the year two thousand three. Effective
the first day of January, two thousand six, the commission, any successor to the commission, any
other private carrier and any self-insured employer shall be allowed statutory subrogation with regard
to all medical and indemnity benefits actually paid as of the date of the recovery. The commission,
successor to the commission, any other private carrier and the self-insured employer shall permit the
deduction from the amount received a reasonable attorney's fees and costs and may negotiate the
amount to accept as subrogation. It is the duty of the injured worker, his or her dependents, his or
her personal representative or his or her attorney to give reasonable notice to the commission,
successor to the commission, any other private carrier, or the self-insured employer after a claim is
filed against the third party and prior to the disbursement of any third party recovery. The statutory
subrogation described in this section does not apply to uninsured and underinsured motorist coverage
or any other insurance coverage purchased by the injured worker or on behalf of the injured worker.
If the injured worker obtains a recovery from a third party and the injured worker, personal
representative or the injured worker's attorney fails to protect the statutory right of subrogation
created herein, the injured worker, personal representative and the injured worker's attorney shall
lose the right to retain attorney fees and costs out of the subrogation amount. In addition, such failure creates a cause of action for the private carrier or self-insured employer against the injured
worker, personal representative and the injured worker's attorney for the amount of the full
subrogation amount and the reasonable fees and costs associated with any such cause of action. The
right of subrogation granted by the provisions of this subsection shall 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 the
amendment and reenactment of this section during the year two thousand five.
(e) The right of subrogation granted the commission in subsections (a) through (c) of this
section shall be exercised by the Insurance Commissioner and his or her designated administrator
of the old fund, as set forth in article two-c of this chapter, for any claim arising from a right of
action which arose or accrued, in whole or in part, prior to the effective date of the amendment and
reenactment of this section during the year two thousand five. The Insurance Commissioner and his
or her designated administrator shall be paid a recovery fee of ten percent of the actual amount
recovered through subrogation with the remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-1. Findings and purpose.
(a) The Legislature finds that:
(1) There is a long-term actuarial funding crisis in the state-run monopolistic workers'
compensation system;
(2) Similar short-term and long-term crises have been ongoing during the past two decades;
(3) During the current crisis, employers in West Virginia find it increasingly difficult to
afford the rates charged by the workers' compensation commission for workers' compensation
coverage and that paying said rates adversely impacts employers' ability to compete in a global
economic environment;
(4) The cost of obtaining workers' compensation coverage from the state system may result
in many employers leaving the state;
(5) Employers' access to competitive workers' compensation rates and the resulting economic development benefit is of utmost importance to the citizens of West Virginia;
(6) A mechanism is needed to provide an enduring solution to this recurring workers'
compensation crisis;
(7) An employers' mutual insurance company or a similar entity has proven to be a successful
mechanism in other states for helping employers secure insurance and for stabilizing the insurance
market;
(8) There is a substantial public interest in creating a method to provide a stable workers'
compensation insurance market in this state;
(9) The state-run workers' compensation program is a substantial actual and potential liability
to the state;
(10) There is substantial public benefit in transferring certain actual and potential future
liability of the state to the private sector and creating a stable self-sufficient entity which will be a
potential source of workers' compensation coverage for employers in this state;
(11) A stable, financially viable insurer in the private sector will aid in providing a continuing
source of insurance funds to compensate injured workers; and
(12) Because the public will greatly benefit from the formation of an employers' mutual
insurance company, state efforts to encourage and support the formation of such an entity, including
providing funding for the entity's initial capital, is in the clear public interest.
(b) The purpose of this article is to create a mechanism for the formation of an employers'
mutual insurance company that will provide:
(1) A means for employers to obtain workers' compensation insurance that is reasonably
available and affordable; and
(2) Compensation to employees of mutual policyholders who suffer work place injuries as
defined in chapter twenty-three of this code.
§23-2C-2. Definitions.
(a) "Executive director" means the executive director of the West Virginia workers' compensation commission as provided in section one-b, article one, chapter twenty-three of this
code.
(b) "Commission" means the West Virginia workers' compensation commission as provided
by section one, article one, chapter twenty-three of this code.
(c) "Insurance commissioner" means the Insurance Commissioner of West Virginia as
provided in section one, article two, chapter thirty-three of this code.
(d) "Company" or "successor to the commission" means the employers' mutual insurance
company created pursuant to the terms of this article.
(e) "Policy default" shall mean a policyholder that has failed to comply with the terms of its
workers' compensation insurance policy and is consequently without workers' compensation
insurance coverage.
(f) "Industrial insurance" means insurance which provides all compensation and benefits
required by chapter twenty-three of this code.
(g) "Insurer" includes:
(1) A self-insured employer; and
(2) A private carrier.
(h) "Industrial council" means the advisory group established in section five of this article.
(i) "Mutualization transition fund" shall be a fund over which the state treasurer is custodian.
Moneys transferred or otherwise payable to the mutualization transition fund shall be deposited in
the state treasury to the credit of the mutualization transition fund. Disbursements shall be made
from the mutualization transition fund upon requisitions signed by the executive director, and, upon
termination of the commission, the Insurance Commissioner, and shall be reasonably related to the
legal, operational, consultative and human resource related expenses associated with the
establishment of the company and the transferring of personnel from the commission to the
company.
(j) "New fund" shall mean a fund owned and operated by the commission and, upon termination of the commission, the successor organization of the West Virginia workers'
compensation commission, and shall consist of those funds transferred to it from the workers'
compensation fund and any other applicable funds. New fund shall include all moneys due and
payable to the workers' compensation fund for the quarters ending the thirtieth day of September,
two thousand five and the thirty-first day of December, two thousand five, which have not been
collected by the workers' compensation fund as of the thirty-first day of December, two thousand
five.
(k) "New fund liabilities" shall mean all claims payment obligations (indemnity and medical
expenses) for all claims, actual and incurred but not reported, for any claim with a date of injury or
last exposure on or after the first day of July, two thousand five: Provided, That new fund liabilities
shall begin with claims payments becoming due and owing on said claims on or after the first day
of January, two thousand six.
(l) "Old fund" shall mean a fund held by the state treasurer's office consisting of those funds
transferred to it from the workers' compensation fund or other sources and those funds due and
owing the workers' compensation fund as of the thirtieth day of June, two thousand five that are
thereafter collected. The old fund and assets therein shall remain property of the state and shall not
novate or otherwise transfer to the company.
(m) "Old fund liabilities" mean all claims payment obligations (indemnity and medical
expenses), related liabilities and appropriate administrative expenses necessary for the administration
of all claims, actual and incurred but not reported, for any claim with a date of injury or last exposure
on or before June 30, 2005: Provided, That old fund liabilities shall include all claims payments for
any claim, regardless of date of injury or last exposure, through the thirty-first day of December, two
thousand five: Provided, however, That old fund liabilities shall include all claims with dates of
injuries or last exposure prior to the first day of July, two thousand four for bankrupt self-insured
employers that had defaulted on their claims obligations which have been recognized by the
commission in its actuarially determined liability number as of the thirtieth day of June, two thousand five.
(n) "Private carrier" means any insurer or the legal representative of an insurer authorized by
the Insurance Commissioner to provide workers' compensation insurance pursuant to this chapter
and which maintains an office in the state. The term does not include a self-insured employer or
private employers but shall include any successor to the commission.
(o) "Uninsured employer fund" means a fund held by the state treasurer's office consisting
of those funds transferred to it from the workers' compensation fund and any other source.
Disbursements from the uninsured employer fund shall be upon requisitions signed by the Insurance
Commissioner and the administrator of the fund, and as otherwise set forth in an exempt legislative
rule promulgated by the workers' compensation board of managers.
(p) "Self-insured employer guaranty risk pool" shall be a fund held by the state treasurer's
office consisting of those funds transferred to it from the guaranty pool created pursuant to 85 CSR.
§19 (2004) and any future funds collected through continued administration of that exempt
legislative rule as administered by the Insurance Commissioner. Disbursements shall be made from
the self-insured employer guaranty risk pool upon requisitions signed by the Insurance
Commissioner and the administrator of the fund. The obligations of the fund shall be as provided
in 85 CSR §19 (2004). The company shall administer the self-insured employer guaranty risk pool
for a term and administrative fee as provided in the administration of the old fund.
(q) "Self-insured employer security risk pool" shall be a fund held by the state's treasurer
consisting of those funds paid into it through the Insurance Commissioner's administration of 85
CSR §19 (2004). Disbursement from said fund shall be made from the self-insured employer
security risk pool upon requisitions signed by the Insurance Commissioner and the administrator of
the fund. The obligations of the fund shall be as provided in 85 CSR §19: Provided, That said
liabilities shall be limited to those self-insured employers who default on their claims obligations
after the termination of the commission. The company shall administer the self-insured employer
security risk pool for a term and administrative fee as provided in the administration of the old fund.
(r) "Private carrier guaranty fund" shall be a fund held by the state treasurer's office
consisting of funds deposited pursuant to this article. Disbursements shall be made from the private
carrier guaranty fund upon requisitions signed by the Insurance Commissioner and the administrator
of the fund. The obligations of the fund shall be as provided in this article. The company shall
administer the private carrier guaranty fund for a term and administrative fee as provided in the
administration of the old fund.
(s) "Assigned risk fund" shall be a fund held by the state treasurer's office consisting of funds
deposited pursuant to this article. Disbursements shall be made from the assigned risk fund upon
requisitions signed by the Insurance Commissioner. The obligations of the fund shall be as provided
in this article.
(t) "Comprehensive financial plan" shall mean the plan compiled by the director for
acceptance by the Insurance Commissioner identifying and forecasting cash flows, funding sources,
debt terms and structures, and scheduled amortization and permanent resolution of all old fund
liabilities. The comprehensive financial plan shall provide for the retirement of the revenue bonds
authorized by article two-d, chapter twenty-three of this code and all realized and potential claims
against the old fund shall be fully reserved. The comprehensive financial plan may include any other
information the Insurance Commissioner may require as a basis for managing the post-transition
fiscal soundness of the old fund.
§23-2C-3. Creation of employer mutual as successor organization of the West Virginia
workers' compensation commission.
(a) On or before the first day of June, two thousand five, the executive director may take such
actions as are necessary to establish an employers' mutual insurance company as a domestic, private,
nonstock, corporation to:
(1) Insure employers against liability for injuries and occupational diseases for which their
employees may be entitled to receive compensation pursuant to chapter twenty-three of this code and
federal Longshore and Harbor Workers' Compensation Act, 33 U. S. C. §901, et seq.;
(2) Provide employer's liability insurance incidental to and provided in connection with the
insurance specified in paragraph (1), including coal-workers pneumoconiosis coverage and employer
excess liability coverage as provided in this chapter; and
(3) Transact such other kinds of property and casualty insurance for which the company is
otherwise qualified under the provisions of this code.
(4) The company shall not sell, assign or transfer substantial assets or ownership of the
company.
(b) If the executive director establishes a domestic mutual insurance company pursuant to
subsection (a) of this section:
(1) As soon as practical, the company established pursuant to the provisions of this article
shall, through a vote of a majority of its provisional board, file its corporate charter and bylaws with
the Insurance Commissioner and apply for a license with the Insurance Commissioner to transact
insurance in this state. Notwithstanding any other provision of this code, the Insurance
Commissioner shall act on the documents within fifteen days of the filing by the company.
(2) In recognition of the workers' compensation insurance liability insurance crisis in this
state at the time of enactment of this article and the critical need to expedite the initial operation of
the company, the Legislature hereby authorizes the Insurance Commissioner to review the
documentation submitted by the company and to determine the initial capital and surplus
requirements of the company, notwithstanding the provisions of section five-b, article three of
chapter thirty-three. The company shall furnish the Insurance Commissioner with all information
and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set
forth in this section and in other provisions of this chapter and chapter thirty-three. The Insurance
Commissioner shall monitor the economic viability of the company during its initial operation on
not less than a monthly basis, until such time as the Commissioner in his or her discretion,
determines that monthly reporting is not necessary. In all other respects the company shall be subject
to comply with the applicable provisions of chapter thirty-three of this code.
(3) Subject to the provisions of subsection (4) of this section, the Insurance Commissioner
may waive other requirements imposed on mutual insurance companies by the provisions of chapter
thirty-three as the Insurance Commissioner determines is necessary to enable the company to begin
insuring employers in this state at the earliest possible date.
(4) Within forty months of the date of the issuance of its license to transact insurance, the
company shall comply with the capital and surplus requirements set forth in subsection (a), section
five-b, article three, chapter thirty-three of this code in effect on the effective date of this enactment,
unless said deadline is extended by the Insurance Commissioner.
(c) For the duration of its existence, the company is not and shall not be considered a
department, unit, agency, or instrumentality of the state for any purpose. All debts, claims,
obligations, and liabilities of the company, whenever incurred, shall be the debts, claims, obligations,
and liabilities of the company only and not of the state or of any department, unit, agency,
instrumentality, officer or employee of the state.
(d) The moneys of the company are not and shall not be considered part of the general
revenue fund of the state. The debts, claims, obligations, and liabilities of the company are not and
shall not be considered a debt of the state or a pledge of the credit of the state.
(e) The company is not subject to provisions of article nine-a, chapter six of this code; the
provisions of chapter twenty-nine-b of this code; the provisions of article three, chapter five-a of this
code; the provisions of article six, chapter twenty-nine of this code; the provisions of article six-a
of said chapter; or the provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon said termination, private carriers,
including the company, shall not be subject to payment of premium taxes, surcharges and credits
contained in article three of chapter thirty-three of this code on premiums received for coverage
under this chapter. In lieu thereof, the workers' compensation insurance market shall be subject to
the following:
(1) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be collected by each private carrier from its policy holders. The surcharge percentage shall be
calculated by dividing the previous fiscal year's total premiums collected plus deductible payments
by all employers into the portion of the Insurance Commissioner's budget amount attributable to
regulation of the private carrier market. This resulting percentage shall be applied to each policy
holder's premium payment and deductible payments as a surcharge and remitted to the Insurance
Commissioner. Said surcharge shall be remitted within ten (10) days of receipt of premium
payments, whenever said payments are made by its insureds;
(2) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to
be remitted on a monthly basis by self-insured employers and said percentage shall be calculated by
dividing previous year's self-insured payroll in the state into the portion of the Insurance
Commissioner's budget amount attributable to regulation of the self-insured employer market. This
resulting percentage shall be applied to each self-insured employer's monthly payroll and the
resulting amount shall be remitted as a regulatory surcharge by each self-insured employer. The
workers' compensation board of managers may promulgate a rule for implementation of this section.
The company, all other private carriers, and all self-insured employers shall furnish the Insurance
Commissioner with all required information and cooperate in all respects necessary for the Insurance
Commissioner to perform the duties set forth in this section and in other provisions of this chapter
and chapter thirty-three. The surcharge shall be calculated so as to only defray the costs associated
with the administration of chapter twenty-three of this code and the funds raised shall not be used
for any other purpose.
(3) Upon termination of the commission, the company and all other private carriers shall
collect a premiums surcharge from their policy holders equal to ten percent, or such higher or lower
rate as annually determined, by the first day of May of each year, by the Insurance Commissioner
to produce forty-five million dollars annually, of each policy holder's periodic premium amount for
workers' compensation insurance. Additionally, by the first day of May each year, the self-insured
employer community shall be assessed a cumulative total of nine million dollars. The methodology for the assessment shall be fair and equitable and determined by exempt legislative rule issued by
the workers' compensation board of managers. The amount collected shall be remitted to the
Insurance Commissioner for deposit in the workers' compensation debt reduction fund created in
section five, article two-d of this chapter.
(g) The new premiums surcharge imposed by subdivision (2), subsection (f) of this section
shall sunset and not be collectible with respect to workers' compensation insurance premiums paid
when the policy is renewed on or after the first day of the month following the month in which the
Governor certifies to the Legislature that the revenue bonds issued pursuant to article two-d, chapter
twenty-three of this code have been retired and that the unfunded liability of the old fund has been
paid or has been provided for in its entirety, whichever occurs last.
§23-2C-4. Governance and organization.
(a) (1) The commission shall implement the initial formation and organization of the
company as provided
by this article.
(2) From the inception of the company, until the first day of January, two thousand six, the
company shall be governed by a provisional board of directors consisting of the three-persons on the
executive committee of the workers' compensation board of managers and four members of the
Legislature. Two members of the West Virginia Senate and two members of the West Virginia
House of Delegates shall serve as advisory nonvoting members of the board. The Governor shall
appoint the legislative members to the board. No more than three of the legislative members shall
be of the same political party. The provisional board shall have the authority to function as necessary
to establish the company and cause it to become operational, including the right to contract on behalf
of the company. Each voting board member shall receive compensation of not more than three
hundred fifty dollars per day and actual and necessary expenses for each day during which he or she
is required to and does attend a meeting of the board.
(3) The provisional board shall develop procedures for the nomination of the board of directors that will succeed the provisional board on the first day of January, two thousand six, and
for the conduct of the election, to be held no later than the first day of November, two thousand five,
and shall give notice of the election to the current subscribers to the workers' compensation fund.
These procedures shall be exempt from the provisions of article three, chapter twenty-nine-a of this
code.
(4) Except as limited by this section and applicable insurance rules and statutes, the company
may: (1) On its own; (2) through the formation or acquisition of subsidiaries; or (3) through a joint
enterprise, offer:
(A) Workers' compensation insurance in a state other than West Virginia to the extent it also
provides workers' compensation or occupational disease insurance coverage to the employer pursuant
to chapter twenty-three of this code;
(B) Other workers' compensation products and services and related products and services in
West Virginia or other states; and
(C) Other property and casualty insurance in West Virginia and other states.
(b) Effective the first day of January, two thousand six, the company shall be governed by
a board of directors consisting of seven directors, as follows:
(1) Three owners or officers of an entity that has purchased or will immediately upon
termination of the commission purchase and maintain an active workers' compensation insurance
policy from the company. At least one shall be a certified public accountant with financial
management or pension or insurance audit expertise and at least one shall be an attorney with
financial management experience.
(2) Two directors who have substantial experience as an officer or employee of a company
in the insurance industry, one of whom is from a company with less than fifty employees;
(3) One director with general knowledge and experience in business management who is an
officer and employee of the company and is responsible for the daily management of the company;
and
(4) The chief executive officer of the company.
(c) The directors and officers of the company are to be chosen in accordance with the articles
of incorporation and bylaws of the company. The initial board of directors selected shall serve for
the following terms: (1) Two for four-year terms; (2) two for three-year terms; (3) two for two-year
terms; and (4) one for a one-year term. Thereafter, the directors shall serve staggered terms of four
years. No director chosen may serve more than two consecutive terms, except for the chief executive
officer of the company. Furthermore, owners, directors, or employees of employers otherwise
licensed to write workers' compensation insurance in this state or licensed or otherwise authorized
to act as a third-party administrator shall not be eligible to be nominated, appointed, elected or serve
on the company's board of directors.
(d) The executive director shall prepare and file articles of incorporation and bylaws in
accordance with the provisions of this article and the provisions of chapters thirty-one and thirty-
three of this code.
§23-2C-5 Creation of the industrial council; duties.
(a) There is hereby created within the office of the Insurance Commissioner an Industrial
Council.
(b) On or before the first day of July, two thousand five, the Governor with the advice and
consent of the Senate, shall appoint five voting members to the Industrial Council who meet the
requirements and qualifications prescribed in this subsection. Two members of the West Virginia
Senate and two members of the West Virginia House of Delegates shall serve as advisory nonvoting
members of the board. The governor shall appoint the legislative members to the board. No more
than three of the legislative members may be of the same political party. The Insurance
Commissioner shall serve as an advisory nonvoting member of the board.
(1) (A) Five members shall be appointed by the governor with the advice and consent of the
Senate for terms that begin upon appointment after the effective date of this legislation and expire
as follows:
(i) One member shall be appointed for a term ending the thirtieth day of June, two thousand
seven;
(ii) Two members shall be appointed for a term ending the thirtieth day of June, two thousand
eight; and
(iii) Two members shall be appointed for a term ending the thirtieth day of June, two
thousand nine.
(B) Except for appointments to fill vacancies, each subsequent appointment shall be for a
term ending the thirtieth day of June of the fourth year following the year the preceding term expired.
In the event a vacancy occurs, it shall be filled by appointment for the unexpired term. A member
whose term has expired shall continue in office until a successor has been duly appointed and
qualified. No member of the council may be removed from office by the governor except for official
misconduct, incompetency, neglect of duty or gross immorality.
(C) No appointed member may be a candidate for or hold elected office. Members may be
reappointed for no more than two full terms.
(2) Each of the appointed voting members of the council shall be appointed based upon his
or her demonstrated knowledge and experience to effectively accomplish the purposes of this
chapter. They shall meet the minimum qualifications as follows:
(A) Each shall hold a baccalaureate degree from an accredited college or university:
Provided, That no more than one of the appointed voting members may serve without a
baccalaureate degree from an accredited college or university if the member has a minimum of
fifteen years' experience in his or her field of expertise as required in this subdivision;
(B) Each shall have a minimum of ten years' experience in his or her field of expertise. The
governor shall consider the following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in insurance claims management; expertise in
insurance underwriting; expertise in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two hundred beneficiaries or three hundred million dollars; expertise in workers' compensation management; expertise in loss
prevention and rehabilitation; expertise in occupational medicine demonstrated by licensure as a
medical doctor in West Virginia and experience, board certification or university affiliation; or
expertise in similar areas of endeavor;
(C) At least one shall be a certified public accountant with financial management or pension
or insurance audit expertise; at least one shall be an attorney with financial management experience;
one shall be an academician holding an advanced degree from an accredited college or university in
business, finance, insurance or economics; and one shall represent organized labor.
(D) The council shall appoint one member to serve as chairperson. The chairperson shall
serve for a one-year term and may serve more than one consecutive term. The council shall hold
meetings at the request of the chairperson or at the request of at least three of the members of the
council, but no less frequently than once every three months. The chairperson shall determine the
date and time of each meeting. Three members of the council constitute a quorum for the conduct
of the business of the council. No vacancy in the membership of the council shall impair the right
of a quorum to exercise all the rights and perform all the duties of the council. No action shall be
taken by the council except upon the affirmative vote of three members of the council.
(3) (A) Each voting appointed member of the council shall receive compensation of not more
than three hundred fifty dollars per day for each day during which he or she is required to and does
attend a meeting of the board.
(B) Each voting appointed member of the council is entitled to be reimbursed for actual and
necessary expenses incurred for each day or portion thereof engaged in the discharge of official
duties in a manner consistent with guidelines of the travel management office of the department of
administration.
(C) Each member of the council shall be provided appropriate liability insurance, including,
but not limited to, errors and omissions coverage, without additional premium, by the state board of
risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
(c) The industrial council shall:
(1) In consultation with the Insurance Commissioner, establish operating guidelines and
policies designed to ensure the effective administration of the workers' compensation insurance
market in West Virginia.
(2) Review and approve, reject or modify rules that are proposed by the Insurance
Commissioner for operation and regulation of the workers' compensation insurance market before
the rules are filed with the secretary of state. The rules adopted by the industrial council are not
subject to sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code.
The industrial council shall follow the remaining provisions of said chapter for giving notice to the
public of its actions and for holding hearings and receiving public comments on the rules.
(3) In accordance with the laws and rules of West Virginia, establish and monitor
performance standards and measurements to ensure the timeliness and accuracy of activities
performed under chapter twenty-three of this code and applicable rules.
(4) Submit for approval by the Legislature, as an isolated and clearly discernable component
of the Insurance Commissioner's budget, a budget for the sufficient administrative resources and
funding requirements necessary for their duties under this article.
(5) Perform all record and information gathering functions necessary to carry out its duties
under this code.
(6) Every two years, conduct an overview of the safety initiatives currently being utilized or
which could be utilized in the workers' compensation insurance market and report said finding to
the joint committee on government and finance. Each private carrier and self-insured employer shall
cooperate with the council in the performance of its duties to evaluate insurer services provided to
employers in controlling losses and providing information on the prevention of industrial accidents
or occupational diseases. Each employer, private carrier and self-insured employer shall provide to
the council, upon request, any information, statistics or data in its records requested by the council in the performance of these duties.
(7) Perform all other duties as specifically provided in this chapter for the industrial council
and those duties incidental thereto.
(8) Establish a method of indexing claims of injured workers that will make information
concerning the injured workers of one insurer available to other insurers.
(A) Every insurer shall provide information, as required by the industrial council, for
establishing and maintaining the claims index.
(B) If an employee files a claim with an insurer, the insurer is entitled to receive from the
administrator a list of the prior claims of the employee. If the insurer desires to inspect the files
related to the prior claims, he or she must obtain the written consent of the employee or the Insurance
Commissioner or his or her designee. The use of the information contained in the files is limited to
the administration of the claim.
§23-2C-6. Creation of new fund, old fund, mutualization transition fund, uninsured employer
fund, self-insured employer guaranty risk pool, self-insured
employer security risk pool, private carrier guaranty fund, and
assigned risk fund.
(a) Effective upon the date upon which this enactment is made effective by the Legislature,
there is hereby created in the state treasury a "workers' compensation old fund", "workers'
compensation new fund", "mutualization transition fund", "workers' compensation uninsured
employers' fund", "self-insured employer guaranty risk pool", "self-insured employer security risk
pool", "private carrier guaranty fund" and an "assigned risk fund". The executive director of the
workers' compensation commission shall have full authority to administer the old fund, the new
fund, the mutualization transition fund, the uninsured employers' fund, the self-insured employer
guaranty risk pool, the self-insured employer security risk pool and the private carrier guaranty fund
until termination of the commission. As soon as practicable upon the establishment of the
mutualization transition fund, the executive director shall cause thirty-five million dollars to be transferred from the workers' compensation fund into the mutualization transition fund. All
unencumbered funds remaining in the mutualization transition fund as of termination of the
commission shall be transferred into the private carrier guaranty fund or, if the proclamation set forth
in this article has not been issued, back to the workers' compensation fund. Expenditures from the
funds established by this section shall be upon appropriation of the Legislature except that during
the fiscal year ending the thirtieth day of June, two thousand five, expenditures from the
mutualization transition fund up to amounts expended for the purposes of this article are authorized
rather than pursuant to an appropriation by the Legislature.
(b) If the proclamation set forth in this article is issued, then upon termination of the
commission, the funds contained in the workers' compensation fund shall be disbursed as follows:
(1) A minimum of three hundred million dollars into the workers' compensation old fund, the exact
amount of which shall be set forth in the governor's proclamation provided in this article; (2) five
million dollars into the uninsured employers' fund; and (3) the remainder into the new fund.
Additionally, the funds contained in the guaranty pool provided in 85 CSR §19 (2004) shall be
transferred into the self-insured employer guaranty risk pool created in this article.
§23-2C-7. Custody, investment and disbursement of funds.
(a) The state treasurer shall be the custodian of the workers' compensation old fund, workers'
compensation uninsured employers' fund, the self-insured employer guaranty risk pool, the self-
insured employer security risk pool, the private carrier guaranty fund and the assigned risk pool and
moneys payable to each of these funds shall be deposited in the state treasury to the credit of the
funds. Each fund shall be a separate and distinct fund upon the books and records of the auditor and
treasurer. Disbursements from these funds shall be made upon requisitions signed by the executive
director and, effective upon termination of the commission, the administrator of the funds and the
Insurance Commissioner. The workers' compensation old fund, the workers' compensation
uninsured employer fund, the self-insured employer guaranty risk pool, self-insured employer
security risk pool, the private carrier guaranty fund and the assigned risk fund are participant plans as defined in section two, article six, chapter twelve of this code and are subject to the provisions of
section nine-a of said article. The funds may be invested by the investment management board in
accordance with said article.
(b) If the governor issues the proclamation set forth in this article, then, effective upon
termination of the commission, all remaining assets and funds contained in the workers'
compensation fund which are payable to the new fund shall be so disbursed and paid to the company
by communication of the executive director to the state treasurer or other appropriate state official
prior to the termination of the commission.
§23-2C-8. West Virginia uninsured employers' fund.
(a) The West Virginia uninsured employers' fund shall be governed by the following:
(1) All money and securities in the fund must be held by the state treasurer as custodian
thereof to be used solely as provided in this article.
(2) The state treasurer may disburse money from the fund only upon written requisition of
the Insurance Commissioner and administrator of the fund.
(3) The Insurance Commissioner shall assess each private carrier and all self-insured
employers an amount to be deposited in the fund. The assessment may be collected by each private
carrier from its policy holders in the form of a policy surcharge. To establish the amount of the
assessment, the Insurance Commissioner shall determine the amount of money necessary to maintain
an appropriate balance in the fund for each fiscal year and shall allocate a portion of that amount to
be payable by private carriers, a portion to be payable by self-insured employers, and a portion to be
paid by any other appropriate group. After allocating the amounts payable, the Insurance
Commissioner shall apply an assessment rate to the:
(A) Private carriers that reflects the relative hazard of the employments covered by the private
carriers, results in an equitable distribution of costs among the private carriers and is based upon
expected annual premiums to be received;
(B) Self-insured employers that results in an equitable distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims; and
(C) Any other categories of payees that results in an equitable distribution of costs among
them and is based upon expected annual expenditures for claims or premium to be received.
(4) The workers' compensation board of managers may adopt rules for the establishment and
administration of the assessment methodologies, rates, payments and any penalties that the workers'
compensation board of managers determines are necessary to carry out the provisions of this section.
(b) Payments from the fund shall be governed by the following:
(1) Except as otherwise provided in this subsection, an injured worker of any employer
required to be covered under this chapter who has failed to obtain coverage may receive
compensation from the uninsured employers' fund if:
(A) He or she meets all jurisdictional and entitlement provisions of this chapter;
(B) He or she files a claim with the Insurance Commissioner; and
(C) He or she makes an irrevocable assignment to the Insurance Commissioner a right to be
subrogated to the rights of the injured employee.
(2) If the Insurance Commissioner receives a claim, it shall immediately notify the employer
of the claim. For the purposes of this section, the employer has the burden of proving that it
provided mandatory workers' compensation insurance coverage for the employee or that it was not
required to maintain workers' compensation insurance for the employee. If the employer meets this
burden, benefits shall not be paid from the fund.
(3) Any employer who has failed to provide mandatory coverage required by the provisions
of chapter twenty-three of this code is liable for all payments made on its behalf, including any
benefits, administrative costs and attorney's fees paid from the fund or incurred by the Insurance
Commissioner.
(4) The Insurance Commissioner:
(A) May recover from the employer the payments made by it, any accrued interest and
attorney fees and costs by bringing a civil action in a court of competent jurisdiction.
(B) May enter into a contract with any person, including the administrator of the uninsured
employers' fund, to assist in the collection of any liability of an uninsured employer.
(C) In lieu of a civil action, may enter into an agreement or settlement regarding the
collection of any liability of an uninsured employer.
(5) The Insurance Commissioner shall:
(A) Determine whether the employer was insured within five days after receiving notice of
the claim from the employee.
(B) Assign the claim to the administrator of the fund for administration and, if appropriate,
payment of compensation.
(6) Upon determining whether the claim is accepted or denied, the fund administrator shall
notify the injured employee and the named employer of its determination.
(7) Any party aggrieved by a determination made by the Insurance Commissioner or the fund
administrator regarding the claims decisions made pursuant to this section may appeal that
determination by filing a protest with the office of judges as set forth in article five of this chapter.
(8) An uninsured employer is liable for the interest on any amount paid on his or her claims
from the fund. The interest must be calculated at a rate set in accordance with the provisions of
section thirteen, article two of this chapter, compounded monthly, from the date the claim is paid
from the account until payment is received by the Insurance Commissioner or fund administrator
from the employer.
(9) Attorney's fees recoverable by the Insurance Commissioner or administrator pursuant to
this section must be paid at the usual and customary rate for that attorney.
(10) In addition to any other liabilities provided in this section, the Insurance Commissioner
or the fund administrator may impose an administrative fine of not more than ten thousand dollars
against an employer if the employer fails to provide mandatory coverage required by this chapter.
All fines and other moneys collected pursuant to this section shall be deposited into the uninsured
employer fund.
(c) The company shall be the administrator of the uninsured employers' fund from the fund's
inception and thereafter for seven years and shall be charged with all authority and responsibilities
incidental to the administration of the fund which are necessary to accomplish the express provisions
and the intent of this chapter. The company shall be paid a monthly administrative fee of five
percent of claims paid each month for the administration of the fund through the thirty-first day of
December, two thousand ten and four percent of claims paid each month for the administration of
the fund thereafter through the thirty-first day of December, two thousand twelve. The company's
administrative duties shall include, but not be limited to, receipt of all claims, processing said claims,
providing for the payment of said claims through the state treasurer's office or other applicable state
agency, and ensuring, through the selection and assignment of counsel, that claims decisions are
properly defended. The administration of the fund after this seven year period shall be subject to the
procedures set forth in article three, chapter five-a of this code. (d) Employees of self-insured
employers who are injured while employed by a self-insured employer are ineligible for benefits
from the West Virginia uninsured employer fund.
§23-2C-9. West Virginia private carrier guaranty fund.
(a) The private carrier guaranty fund established in article two-c of this chapter shall provide
benefits to those employees whose employers' private carrier is found to be insolvent by a court of
competent jurisdiction in the insurer's state of domicile or has otherwise defaulted on its payment
obligations and is subject to an administrative action by the Insurance Commissioner.
(b) The private carrier guaranty fund shall be funded through assessments on each private
carrier of workers' compensation insurance. All assessments shall be deposited in the private carrier
guaranty fund established in this article. The assessment may be collected by each carrier from its
policy holders in the form of a policy surcharge. To establish the amount of the assessment, the
Insurance Commissioner shall determine the amount of money necessary to pay outstanding
obligations of the defaulting private carrier and to maintain an appropriate balance in the fund for
each fiscal year. The Insurance Commissioner shall apply an assessment rate to the private carriers that reflects the relative hazard of the employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is based upon expected annual
premiums to be received.
(c) A defaulting private carrier shall not be permitted to write any workers' compensation
insurance in this state until it has reimbursed the private carrier guaranty fund for any payments made
for the private carrier's unpaid obligations.
(d) Private carriers providing workers' compensation insurance shall not be subject to article
twenty-six, chapter thirty-three of this code for any premiums received for coverage provided under
this chapter.
(e) The Insurance Commissioner may promulgate rules to implement the provisions of this
section.
§23-2C-10. West Virginia adverse risk assignment.
(a) To qualify for adverse risk assignment, an employer must have been categorically
declined coverage by at least two insurers that are not affiliated with each other. The employer shall
have the burden of establishing that at least two insurers are unwilling to provide coverage at any
premium level that is reasonably related to the risk presented by the employer.
(b) To qualify for adverse risk assignment, the employer shall make an application to the
Insurance Commissioner and shall submit the evidence described in subsection (a) of this section.
(c) Upon receipt of the adverse risk assignment application, the Insurance Commissioner
shall determine whether subsection (a) of this section has been satisfied. If so, the Insurance
Commissioner shall, through the assigned risk fund, provide coverage to the applicant at a premium
level to be determined by the Insurance Commissioner, which premiums shall be consistent with
generally accepted accounting principles, actuarially sound, and consistent with classification and
rate-making methodologies found in the insurance industry. All rates, surcharges or assessments and
assignment of adverse risk employers shall be fair and equitable and financially sound in accordance
with generally accepted accounting principles.
(d) The coverage provided by this section shall be pursuant to a pooling arrangement
managed by the Insurance Commissioner. The Insurance Commissioner may contract with any third
party, including any private carrier, to administer this pooling arrangement. Costs necessary to
operate this pooling arrangement shall be funded by premiums paid by covered employers,
surcharges, if any, to covered employers and assessments to private carriers providing workers'
compensation insurance in this state.
(e) The workers' compensation board of managers shall promulgate a rule for the
establishment of the pooling mechanism and administration thereof; assessment of private carriers;
and rating structure with differing rate tiers for insureds.
(f) As often as necessary, the Insurance Commissioner may assess all private carriers
providing workers' compensation insurance in this state such funds as are necessary to cover any
deficiencies in the pooling arrangement. The assessments shall result in an equitable distribution
of costs among private carriers based upon premiums received by the private carriers. Assessments
made upon private carriers pursuant to this section may be collected by each carrier from its policy
holders in the form of a surcharge.
§23-2C-11. Transfer of assets from new fund to the mutual insurance company established
as a successor to the commission; transfer of commission
employees.
(a) If the governor determines that:
(1) The old fund assets are sufficient to satisfy the old fund liabilities or that a revenue source
has been secured to satisfy the old fund liabilities as they occur from time to time;
(2) The executive director has established a mutual insurance company pursuant to this code;
(3) The comprehensive financial plan has been accepted by the Insurance Commissioner; and
(4) The commissioner of insurance has determined that the mutual insurance company
established by the executive director qualifies:
(A) For a certificate of authority to transact workers' compensation insurance in this state; and
(B) For the authority to issue nonassessable policies of insurance pursuant to this code, the
governor shall issue a proclamation stating that the events described in subdivisions (1) through (4),
inclusive, of this subsection have occurred, along with the exact amount of funds to be transferred
from the workers' compensation fund to the old fund. The Governor shall establish the effective
date of the termination of the commission in the proclamation.
(b) If the governor issues said proclamation:
The executive director shall cause the transfer to the mutual insurance company established
pursuant this code the premiums and other money paid or payable, transferred or transferable from
the workers' compensation fund into the new fund, old fund, and any other applicable fund. The
investment management board, state treasurer and any other agency or board shall fully cooperate
in the transfer of the new fund assets.
(c) Upon the issuance of the proclamation set forth is subsection (a) of this section, all
commission employees assigned regulatory duties shall transfer, along with the assets necessary to
support the functions being performed, from the commission to the Insurance Commissioner:
Provided, That the executive director shall, in consultation with the Insurance Commissioner, have
sole authority to identify and select the employees that are employed by the commission to be
assigned and transferred to the insurance commission. For purposes of this section, regulatory duties
shall include, but may not be limited to, self-insurance, rating services, office of judges and board
of review.
(d) The division of personnel shall cooperate fully by assisting in all personnel activities
necessary to expedite all changes for the commission and the Insurance Commissioner. Due to the
emergency currently existing at the commission and the urgent need to develop fast, efficient claims
processing, management and administration, the Insurance Commissioner is hereby granted authority
to reorganize internal functions and operations and to delegate, assign, transfer, combine, establish,
eliminate and consolidate responsibilities and duties to and among the positions transferred under the authority of this subsection. These actions shall not be subject to the grievance process.
§23-2C-12. Certain personnel provisions governing employees laid-off by the mutual during
its initial year of operation.
(a) If a mutual insurance company is established pursuant to this article, a person who:
(1) Is employed on the first day of January, two thousand five, by the commission;
(2) Was employed by the commission upon its termination; and
(3) Is laid off by the company on or before the thirtieth day of June, two thousand eight, is
entitled to be placed on an appropriate reemployment list maintained by the department of personnel
and to be allowed a preference on that list. The department of personnel shall maintain such an
employee on the reemployment list indefinitely, or until the employee has declined three offers of
employment at a paygrade substantially similar to that of his or her position upon termination of the
commission, or until he or she is reemployed by the executive branch of state government, whichever
occurs earlier.
(b) The executive director may select former bureau of employment program employees who
are, upon the termination of the commission, employees of the office of information services and
communication and who enter into an employment contract with the company before the first day
of December, two thousand five, to become employees of the company and said employees shall be
afforded the benefits of this section.
§23-2C-13. Certain retraining benefits to those employees laid-off by the mutual
during its first year of operation.
If a domestic mutual insurance company is established pursuant to this article, the chief
executive officer of the company shall enter into an agreement with the department of personnel for
the provision of services and training to an employee of the company who is laid off during the first
year of the company's operation and requires additional training to obtain other gainful employment.
The department of personnel shall administer the program. The fees required for those services and
training shall be in an amount established by the department or personnel, must not exceed two million dollars, in the aggregate, and shall be paid out of the mutualization transition fund. The
executive director may select former bureau of employment program employees who are, upon the
termination of the commission, employees of the office of information services and communication
and who enter into an employment contract with the company before the first day of December, two
thousand five, to become employees of the company and said employees shall be afforded the
benefits of this section.
§23-2C-14. Certain benefits provided to commission employees.
(a) If a domestic mutual insurance company is created pursuant to this article and becomes
operational as a private carrier, then the company shall pay the full actuarial cost to purchase years
of credit for not more than five years of service under the state's public employee retirement system
to those individuals who retire upon termination of the commission or who become employed by the
company upon termination of the commission. The amount purchased per employee shall be
calculated by allowing six months of credit to be purchased for each year of service with the
commission or its predecessors, including the bureau of employment programs, and shall be paid out
of the mutualization transition fund. If upon said purchase, an employee does not vest in the public
employee retirement plan, the employee can receive his or her contribution from the retirement plan
and an amount equal to the employer's contribution to be payable out of the mutualization transition
fund.
(b) The public employees' retirement system shall take such action as is necessary to carry
out the provisions of subsection (a).
(c) All employees employed by the commission on the thirty-first day of December, two
thousand four, who are employed by the company immediately upon termination of the commission
shall have the following options related to their accrued sick leave: (1) Freeze said accrued sick
leave at the balance that existed as of thirty-first day of December, two thousand four and use said
sick leave at the time of retirement to purchase insurance through the public employee insurance
agency. Any related charges shall be paid from the old fund; have their accrued sick leave irrevocably surrendered in exchange for one hour of pay for each hour of accrued sick leave
surrendered to be payable from the mutualization transition fund.
(d) The executive director may select former bureau of employment program employees who
are, upon the termination of the commission, employees of the office of information services and
communication and who enter into an employment contract with the company before the first day
of December, two thousand five, to become employees of the company and said employees shall be
afforded the benefits of this section.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all subscriber policies with the
commission shall novate to the company and all employers otherwise shall purchase workers'
compensation insurance from the company, unless permitted to self-insure their obligations. The
company shall assume responsibility for all new fund obligations of the subscriber policies which
novate to the company or which are issued thereafter. Each subscriber whose policy novates to the
company shall also have its advanced deposit credited to its account with the company. Employers
purchasing workers' compensation insurance from the company shall have the right to designate a
representative or agent to act on its behalf in any and all matters relevant to coverage and claims as
administered by the company.
(b) Effective the first day of July, two thousand eight, an employer may elect to: (1) Continue
to purchase workers' compensation insurance from the company; (2) purchase workers'
compensation insurance from another private carrier licensed and otherwise authorized to transact
workers' compensation insurance in this state; or (3) self-insure its obligations if it satisfies all
requirements of this code to so self-insure and is permitted to do so: Provided, That all state and
local governmental bodies, including, but not limited to, all counties and municipalities and their
subdivisions and including all boards, colleges, universities and schools, shall continue to purchase
workers' compensation insurance from the company through the thirtieth day of June, two thousand
twelve. The company and other private carriers shall be permitted to sell workers' compensation insurance through licensed agents in the state. To the extent that a private carrier markets workers'
compensation insurance through a licensed agent, it shall be subject to all applicable provisions of
chapter thirty-three of the code. All employers' must immediately notify the Insurance
Commissioner of its private carrier and any change thereto.
(c) An employer may elect to change its private insurer carrier on or after the first day of July,
two thousand eight, if the employer has:
(1) Given at least thirty days' notice to the Insurance Commissioner of the change of insurer;
and
(2) Furnished evidence satisfactory to the Insurance Commissioner that the payment of
compensation has otherwise been secured.
(d) Each private carrier and employer shall notify the Insurance Commissioner if an employer
has changed his or her insurer or has allowed his or her insurance to lapse within twenty-four hours
or by the end of the next working day, whichever is later, after the insurer has notice of the change
or lapse. Every employer shall post a notice upon its premises in a conspicuous place identifying
its industrial insurer. The notice must include the insurer's name, business address and telephone
number and the name, business address and telephone number of its nearest adjuster in this state.
The employer shall at all times maintain the notice provided for the information of his or her
employees. Release of employer policy information and status by the industrial council and the
Insurance Commissioner shall be governed by section four, article one, chapter twenty-three of this
code. The Insurance Commissioner shall collect and maintain information related to officers,
directors and ten percent or more owners of each carrier's policy holders. The private carrier shall
provide said information to the Insurance Commissioner.
(e) Any rule promulgated by the workers' compensation board of managers empowering
agencies of this state to revoke or refuse to grant, issue or renew any contract, license, permit,
certificate or other authority to conduct a trade, profession or business to or with any employer
whose account is in default with the commission shall be fully enforceable by the Insurance Commissioner against the employer in policy default with a private carrier.
(f) Effective the first day of July, two thousand eight, the company may decline to offer
coverage to any applicant. Effective the first day of July, two thousand eight, the company and
private carriers may cancel a policy or decline to renew a policy upon the issuance of sixty days
written advance notice to the policyholder: Provided, That cancellation of the policy by the carrier
for failure of consideration to be paid by the policyholder is effective after fifteen days advance
written notice of cancellation to the policyholder.
§23-2C-16. Administration of old fund.
(a) Notwithstanding any provision of this code to the contrary, the company shall be the
administrator of the workers' compensation old fund from inception of the company and thereafter
for seven years and shall be charged with all authority and responsibilities incidental to the
administration of the old fund which are necessary to accomplish the express provisions and the
intent of this chapter. The company shall be paid a monthly administrative fee of five percent of
claims paid each month for the administration of the old fund through the thirty-first day of
December, two thousand ten, and four percent of claims paid each month for the administration of
the old fund thereafter through the thirty-first day of December, two thousand twelve. The
company's administrative duties shall include, but not be limited to, receipt of all claims, processing
said claims, providing for the payment of said claims through the state treasurer's office or other
applicable state agency, and ensuring, through the selection and assignment of counsel, that claims
decisions are properly defended. The administration of the old fund after this seven-year period shall
be subject to the procedures set forth in article three, chapter five-a of this code.
(b) The Insurance Commissioner may contract or employ counsel to perform legal services
related solely to the collection of moneys due the old fund, including the collection of moneys due
the old fund and enforcement of repayment agreements entered into for the collection of moneys due
on or before the thirtieth day of June, two thousand five, in any administrative proceeding and in any
state or federal court.
(c) The Insurance Commissioner shall review claims determined to be payable from the old
fund and may contest the determination pursuant to the provisions of article five of this chapter.
(d) The Insurance Commissioner may conduct or cause to be conducted an annual audit to
be performed on the old fund.
§23-2C-17. Administration of a competitive system.
(a) Every policy of insurance issued by a private carrier:
(1) Shall be in writing;
(2) Shall contain the insuring agreements and exclusions; and
(3) If it contains a provision inconsistent with this chapter, it shall be deemed to be reformed
to conform with this chapter.
(b) The workers' compensation board of managers shall promulgate a rule which prescribes
the requirements of a basic policy to be used by private carriers.
(c) A private carrier may enter into a contract to have his or her plan of insurance
administered by a third-party administrator, including the company. A private carrier shall not enter
into a contract with any person for the administration of any part of the plan of insurance unless that
person maintains an office in this state and has registered with the Insurance Commissioner of this
state in accordance with article forty-six, chapter thirty-three of the code.
(d) A self-insured employer or a private carrier may:
(1) Enter into a contract or contracts with one or more organizations for managed care to
provide comprehensive medical and health care services to employees for injuries and diseases that
are compensable pursuant to chapter twenty-three of this code. The managed care plan must be
approved pursuant to the provisions of section three, article four of this chapter.
(2) Require employees to obtain medical and health care services for their industrial injuries
from those organizations and persons with whom the self-insured employer, or private carrier has
contracted or as the self-insured employer or private carrier otherwise prescribes.
(3) Except for emergency care, require employees to obtain the approval of the self-insured employer or private carrier before obtaining medical and health care services for their industrial
injuries from a provider of health care who has not been previously approved by the self-insured
employer or private carrier.
(e) A private carrier or self-insured employer may inquire about and request medical records
of an injured employee that concern a preexisting medical condition that is reasonably related to the
industrial injury of that injured employee.
(f) An injured employee must sign all medical releases necessary for the insurer of his or her
employer to obtain information and records about a preexisting medical condition that is reasonably
related to the industrial injury of the employee and that will assist the insurer to determine the nature
and amount of workers' compensation to which the employee is entitled.
§23-2C-18. Ratemaking; Insurance Commissioner.
(a) For the fiscal year beginning the first day of July, two thousand six, the company shall
charge the actuarially determined base rates for the fiscal year. The base rates shall be calculated by
the company and submitted for approval by the Insurance Commissioner.
(b) For the fiscal year beginning the first day of July, two thousand seven, the company shall
charge the actuarially determined base rates for said fiscal year. The base rates shall be calculated
by the company and submitted for approval by the Insurance Commissioner.
(c) Effective for the fiscal year beginning the first day of July, two thousand eight, all private
carriers' rates shall be governed by the following:
(1) For the period beginning on first day of July, two thousand eight, and ending on the
thirtieth day of June, two thousand nine, no more than five percent variance from the base rates
established by the Insurance Commissioner.
(2) For the period beginning on the first day of July, two thousand nine, and ending on the
thirtieth day of June, two thousand ten, no more than ten percent variance from the base rates
established by the Insurance Commissioner.
(d) For the period beginning on the first day of July, two thousand six through the thirtieth day of June, two thousand ten, the company and, when applicable, a private carrier, may continue
to calculate experience modification factors and other related rating modification methodologies to
adequately insure individual employer risks.
(e) The variances provided in this section are only applicable to base rates and shall be
exclusive of experience modification and other related adjustments, including surcharges imposed
by this chapter.
(f) For the period beginning the first day of July, two thousand ten, and thereafter, the
Insurance Commissioner shall set base rates for approved classifications and thereafter in accordance
with rules established in accordance with subsection nine of this section. Said rates shall be released
to the public at least ninety days prior to the first day of July each year. Within thirty days from this
release date, private carriers shall submit to the Insurance Commissioner their proposed rates, which
may be higher than the base rates established by the Insurance Commissioner. The Insurance
Commissioner retains authority to disapprove rates in effect if it is determined that the rates are not
in compliance with the following:
(1) Rates must not be excessive, inadequate or unfairly discriminatory, nor may an insurer
charge any rate which if continued will have or tend to have the effect of destroying competition or
creating a monopoly.
(2) The Insurance Commissioner may disapprove rates if there is not a reasonable degree of
price competition at the consumer level with respect to the class of business to which they apply.
In determining whether a reasonable degree of price competition exists, the Insurance Commissioner
shall consider all relevant tests, including:
(A) The number of insurers actively engaged in the class of business and their shares of the
market;
(B) The existence of differentials in rates in that class of business;
(C) Whether long-run profitability for private carriers generally of the class of business is
unreasonably high in relation to its risk;
(D) Consumers' knowledge in regard to the market in question; and
(E) Whether price competition is a result of the market or is artificial. If competition does
not exist, rates are excessive if they are likely to produce a long-run profit that is unreasonably high
in relation to the risk of the class of business, or if expenses are unreasonably high in relation to the
services rendered.
(3) Rates are inadequate if they are clearly insufficient, together with the income from
investments attributable to them, to sustain projected losses and expenses in the class of business to
which they apply.
(4) One rate is unfairly discriminatory in relation to another in the same class if it clearly fails
to reflect equitably the differences in expected losses and expenses. Rates are not unfairly
discriminatory because different premiums result for policyholders with similar exposure to loss but
different expense factors, or similar expense factors but different exposure to loss, so long as the
rates reflect the differences with reasonable accuracy. Rates are not unfairly discriminatory if they
are averaged broadly among persons insured under a group, franchise or blanket policy.
(g) The rate-making provisions and premium provisions contained in article two of this
chapter shall not be applicable to the company or other private carriers. The workers' compensation
board of managers, in consultation with the Insurance Commissioner, shall issue an exempt
legislative rule to govern ratemaking and premium collection by the company and other private
carriers.
§23-2C-19. Special provisions as to private carrier premium collection.
(a) Each employer who is required to purchase and maintain workers' compensation
insurance or who elects to purchase workers' compensation insurance shall pay a premium to a
private carrier. Each carrier shall notify its policy holders of the mandated premium payment
methodology and under what circumstances a policy holder will be found to be in policy default.
(b) An employer who is required to purchase and maintain workers' compensation insurance
but fails to do so or otherwise enters policy default shall be deprived of the benefits and protection afforded by this chapter, including section six, article two of this chapter, and the employer is liable
as provided in section eight of said article. The policy defaulted employer's liability under these
sections is retroactive to day the policy default occurs. The private carrier shall notify the policy
defaulted employer of the method by which the employer may be reinstated with the private carrier.
(c) A private carrier is authorized to commence a civil action against an employer who, after
due notice, defaults on any payment. If judgment is against the employer, the employer shall pay the
costs of the action. Upon prevailing in a civil action, the private carrier is entitled to recover its
attorneys' fees and costs of action from the employer.
(d) In addition to the provisions of subsection (a) of this section, any payment, interest and
penalty due and unpaid under this chapter is a personal obligation of the employer, its officers and
its directors, immediately due and owing to the private carrier and shall, in addition, be a lien
enforceable against all the property of the employer: Provided, That the lien shall not 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 the lien may be enforced as other judgment liens are
enforced through the provisions of said chapter and the same is considered deemed by the circuit
court to be a judgment lien for this purpose.
(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 its private carrier that all payments, interest and penalties thereon against the corporation which
is an employer under this chapter have been paid or that provision satisfactory to the private carrier
has been made for payment.
(f) In addition to any other liabilities provided in this section, the Insurance Commissioner
may impose an administrative fine of not more than ten thousand dollars against an employer if the
employer fails to provide mandatory coverage required by the this chapter. Further, prior to providing an applicant employer with coverage mandated in this chapter, all private carriers shall
exercise reasonable due diligence to ensure that an employer applicant has not been in policy default
with another carrier or in default with the commission. If it is discovered that the employer applicant
remains in policy default with another carrier or the commission, the company or new carrier shall
not provide the coverage mandated by this chapter until such time as the pre-existing policy default
is cured. Any provider violating this provision may be fined not more than ten thousand dollars by
the Insurance Commissioner.
(g) The company and the Insurance Commissioner shall be provided extraordinary powers
to collect any premium amounts payable to the workers' compensation fund or the new fund and due
from first day of July, two thousand five, through the thirtieth day of June, two thousand eight.
Those powers shall include: (1) Withholding of coverage effective the first day of January, two
thousand six. Employers without coverage shall immediately be deprived of the benefits and
protection afforded by this chapter, including section six, article two of this chapter and the employer
is liable as provided in section eight of said article; (2) the right to maintain a civil action against all
officers and directors of the employer individually for collection of the premium owed; and (3) the
right to immediately report the employers' to the state tax department and other state agencies to
secure suspension of any and all licenses, certificates, permits, registrations and other similar
approval documents necessary for the employer to conduct business in this state.
§23-2C-20. Claims administration issues.
(a) A self-insured employer shall continue to comply with rules promulgated by the board
of managers governing the self-administration of its claims and the successor to the commission
shall also comply with the rules promulgated by the board of managers governing the self-
administration of claims.
(b) The successor to the commission, any other private carrier and any employer that self-
insures its risk and self-administers its claims shall exercise all authority and responsibility granted
to the commission in this chapter and provide notices of action taken to effect the purposes of this chapter to provide benefits to persons who have suffered injuries or diseases covered by this chapter.
The successor to the commission, private carriers and self-insured employers shall at all times be
bound and shall comply fully with all of the provisions of this chapter. Furthermore, all of the
provisions contained in article four of this chapter pertaining to disability and death benefits are
binding on and shall be strictly adhered to by the successor to the commission, private carriers, and
the self-insured employer in their administration of claims presented by employees of the self-
insured employer.
(c) Upon termination of the commission, the occupational pneumoconiosis board shall be
transferred to the Insurance Commissioner and shall be administered by the Insurance
Commissioner. The company and other private carriers shall all authority and responsibility granted
to the self-insured employers in the administration and processing of occupational pneumoconiosis
claims.
(d) Upon termination of the commission, all claims allocation responsibilities shall transfer
from the commission to the Insurance Commissioner.
(e) Upon termination of the commission, the administrator of the old fund shall have all
administrative and adjudicatory authority vested in the commission in administering old law
liabilities and otherwise processing and deciding old law claims.
§23-2C-21. Limitation of liability of insurer or third-party administrator; administrative
fines are exclusive remedies.
(a) No cause of action may be brought or maintained by an employee against a private carrier
or a third-party administrator, or any employee or agent of a private carrier or third-party
administrator, who violates any provision of this chapter or chapter thirty-three of this code.
(b) Any administrative fines provided in this chapter or rules promulgated by the workers'
compensation commission, the Insurance Commissioner are the exclusive remedies for any violation
of this chapter committed by a private carrier or a third-party administrator, or any agent or employee
of a private carrier or a third party administrator.
(c) Upon a determination by the Office of Judges' that a denial of compensability, a denial
of an initial award of temporary total disability or a denial of an authorization for medical benefits
was unreasonable, reasonable attorney's fees and the costs actually incurred in the process of
obtaining a reversal of the denial shall be awarded to the claimant and paid by the company, private
carrier or self-insured employer which issued the unreasonable denial. A denial is unreasonable if,
after submission by or on behalf of the claimant, of evidence of the compensability of the claim, the
entitlement to initial temporary total disability benefits or medical benefits, the company, private
carrier or self-insured employer is unable to demonstrate that it had evidence or a legal basis
supported by legal authority at the time of the denial which is relevant and probative and supports
the denial of the award or authorization. Payment of attorney's fees and costs awarded under this
subsection will be made to the claimant at the conclusion of litigation, including all appeals, of the
claimant's protest of the denial.
§23-2C-22. Rules.
Except as otherwise provided in this chapter, all rules applicable to the former workers'
compensation commission are hereby adopted and made effective as to the operation of the workers'
compensation insurance market to the extent that they are not in conflict with the current law.
Authority to enforce the existing rules and the regulatory functions of the commission as set forth
in chapter twenty-three of the code shall transfer from the commission to the Insurance
Commissioner effective upon termination of the commission.
§23-2C-23. Transfer of assets and contracts.
With the establishment of the company, all commission assets, excluding those necessary to
perform the regulatory function of the Insurance Commissioner under this chapter are hereby
transferred and assigned to the company.
ARTICLE 2D. WORKERS' COMPENSATION DEBT REDUCTION BONDS.
§23-2D-1. Short title.
This article shall be known and may be cited as the "Workers' Compensation Debt Reduction Bond Act".
§23-2D-2. Legislative findings; legislative intent.
The Legislature finds and declares that:
(a) The supreme court of appeals has ruled that article X, section four of the constitution does
not preclude issuance of revenue bonds which are to be redeemed from a special fund.
(b) The supreme court of appeals has also ruled that the Legislature may not designate funds
that will be used to liquidate a bond issue out of a current tax source that flows into the general
revenue fund.
(c) This act imposes several new taxes and provides for those taxes to be deposited in the
workers' compensation debt reduction fund created in section five of this article, which is a special
account in the treasury and is not part of the state general revenue fund.
(d) This act also provides for certain special revenue dollars that are not part of the state
general revenue fund to also be deposited in the workers' compensation debt reduction fund.
(e) This article provides for the reduction of the old fund liability of the workers'
compensation commission through the issuance of revenue bonds for the purpose of:
(1) Providing for the safety and soundness of the workers' compensation system; and
(2) Redeeming the unfunded liability of the workers' compensation fund in order to realize
savings over the remaining term of the amortization schedules of the unfunded actuarial accrued
liabilities.
(f) The general credit of the state will not be pledged for repayment of bonds issued under
this article and repayment will come from moneys that are not part of the state's general revenue
fund.
§23-2D-3. Definitions.
For purposes of this article:
(a) "Old fund" means the fund created in sections two and six, article two-c of this chapter.
(b) "Workers' compensation commission" or "commission" means the West Virginia workers' compensation commission established under article one, chapter twenty-three of this code,
or any successor to all or any substantial part of its powers and duties; and
(c) "Workers' compensation debt reduction revenue bond" means any bond or bonds issued
by the economic development authority pursuant to this article.
§23-2D-4. Workers' compensation debt reduction revenue bonds; amount; when may issue.
(a) Revenue bonds of the state of West Virginia are hereby authorized to be issued and sold
by the West Virginia economic development authority created and provided in article fifteen, chapter
thirty-one of this code, solely for the paying down and elimination of the current unfunded liability
of the workers' compensation fund, as provided by the constitution and the provisions of this article.
The principal of, and the interest and redemption premium, if any, on, the bonds shall be payable
solely from the special fund provided in section six of this article for repayment.
(b) The bonds shall bear such date or dates and mature at such time or time, be in such
amounts, be in such denominations, be in such registered form, carry such registration privileges,
be due and payable at such time or times, not exceeding thirty years from their respective dates, and
place and in such amounts, and subject to such terms of redemption as the resolution may provide:
Provided, That in no event may the amount of bonds issued pursuant to this article exceed one
billion five hundred million dollars.
(c) Revenue bonds issued under this article shall state on their face that the bonds do not
constitute a debt of the state of West Virginia; that payment of the bonds, interest and charges
thereon cannot become an obligation of the state of West Virginia; and that the bondholders'
remedies are limited in all respects to the "special revenue fund" established in this article for the
liquidation of the bonds.
(d) Net proceeds from sale of these bonds shall be deposited in the old fund.
§23-2D-5. Special account created; use of moneys in the fund.
(a) There is hereby created in the state treasury a special interest bearing account known as
the "workers' compensation debt reduction fund." Funds in this account may be invested in the manner permitted by the provisions of article six, chapter twelve of this code, with interest income
a proper credit to this fund.
(b) Moneys to be deposited in this account include:
(1) The amounts provided in section two, article eleven-a, chapter four of this code;
(2) The net amount of all moneys received by the tax commissioner from collection of the
new taxes imposed by section four, article thirteen-v, chapter eleven of this code, including any
interest, additions to tax, or penalties collected with respect to these taxes pursuant to article ten,
chapter eleven of this code;
(3) The net amount of moneys received by the Insurance Commissioner from collection of
the new premiums tax imposed by section three, article two-c of this chapter; and
(4) Moneys from racetrack video lottery net terminal income, as provided in section ten and
ten-b, article twenty-two-a, chapter twenty-nine of this code.
(c) Moneys in this account are to be used and expended to reduce the workers' compensation
debt or to pay debt service on bonds sold pursuant to this article for the purpose of reducing or
paying the workers' compensation debt, or for any combination of both of these purposes.
(d) From the moneys deposited in this fund, there shall first be transferred each month to the
debt service fund created in section six of this article sufficient amounts to provide for the timely
payment of the principal, interest and redemption premium, if any, on any revenue bonds or
refunding bonds issued pursuant to this article, as determined in the trust agreement or agreements.
Remaining moneys shall be transferred monthly to the old fund.
§23-2D-5a. Excess regular coal severance taxes.
When in any fiscal year ending after the thirtieth day of June, two thousand six, the state
collects net severance tax on the privilege of severing, extracting, reducing to possession or
producing coal for sale profit or commercial use imposed by section three, article thirteen-a, chapter
eleven of the code, that is in excess of the net amount of the tax collected in fiscal year two thousand
six, fifty percent of the difference shall be deposited in the old fund created in article two-c of this chapter. For purposes of this subsection, the amount of the additional severance tax on coal imposed
pursuant to section six, article thirteen-a, chapter eleven of the code, collected each fiscal year for
the benefit of counties and municipalities as provided in said section six, shall be excluded when
determining the amount of the tax imposed by section three, article thirteen-a, chapter eleven of the
code, that is collected each fiscal year from the privilege of severing, extracting, reducing to
possession or producing coal for sale, profit or commercial use. The provisions of this subsection
shall not be effective after the thirtieth day of June, two thousand nine.
§23-2D-6. Creation of debt service fund; disbursements to pay debt service on workers'
compensation debt reduction revenue bonds.
(a) There is hereby created a special account in the state treasury, which shall be designated
and known as the "West Virginia Workers' Compensation Debt Reduction Revenue Bond Debt
Service Fund", into which shall monthly be deposited amounts from the workers' compensation debt
reduction fund necessary to pay debt service on the bonds and to provide for any coverage
requirements.
(b) All amounts deposited in the fund shall be pledged to the repayment of the principal,
interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds
authorized by this article, including any and all commercially customary and reasonable costs and
expenses which may be incurred in connection with the issuance, refunding, redemption or
defeasance thereof.
(c) The treasurer shall transfer monies in this fund as set forth in the trust agreement for the
bonds issued under this article.
(d) A lien on the proceeds of the West Virginia workers' compensation debt reduction
revenue bond debt service fund up to a maximum amount equal to the projected annual principal,
interest and coverage ratio requirements may be granted by the economic development authority in
favor of the bonds it issues secured by this fund.
§23-2D-7. Covenants of state.
The state of West Virginia covenants and agrees with the holders of the bonds issued
pursuant hereto as follows: (1) That such bonds shall never constitute a direct and general obligation
of the state of West Virginia; (2) that the full faith and credit of the state is not hereby pledged to
secure the payment of the principal and interest of such bonds; (3) that new annual state taxes that
are not and never were part of the state general revenue fund shall be collected in an amount
sufficient to pay as it may accrue the interest on such bonds and the principal thereof; and (4) that
the moneys transferred to the workers' compensation debt reduction revenue bond debt service fund
as provided in this article are irrevocably set aside and dedicated to the payment of the interest on
and principal of any bond becoming due and payable in such year.
§23-2D-8. Workers' compensation debt reduction revenue bonds lawful investments.
All workers' compensation debt reduction revenue bonds issued pursuant to this article shall
be lawful investments for banking institutions, societies for savings, building and loan associations,
savings and loan associations, deposit guarantee associations, trust companies, insurance companies,
including domestic for life and domestic not for life insurance companies.
§23-2D-9. Refunding bonds.
Any workers' compensation debt reduction revenue bonds which are outstanding may at any
time be refunded by the issuance of refunding bonds in an amount deemed necessary to refund the
principal of the bonds to be refunded, together with any unpaid interest thereon; to accomplish the
purpose of this article; and to pay any premiums and commissions necessary to be paid in connection
therewith. Any refunding may be effected whether the workers' compensation debt reduction
revenue bonds to be refunded shall have then matured or shall thereafter mature. Any refunding
bonds issued pursuant to this article shall be payable from the workers' compensation debt reduction
revenue bond debt service fund shall be secured in accordance with the provisions of this article.
§23-2D-10. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses, incurred in the issuance of any revenue
bonds pursuant to this article shall be paid out of bond proceeds.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-1. Compensation fund; catastrophe and catastrophe payment defined; compensation
by employers.
(a) The commission shall establish a workers' compensation fund from the premiums and
other funds paid thereto by employers, as provided in this section, for the benefit of employees of
employers who have paid the premiums applicable to the 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 workers' compensation fund as provided for
in this section, and for the benefit of the dependents of all the employees, and for the payment of the
administration expenses of this chapter. The workers' compensation fund created pursuant to this
article shall terminate upon termination of the commission and its proceeds shall be distributed as
set forth in article two-c of this chapter.
(b) A portion of all premiums that are paid into the workers' compensation fund by
subscribers not electing to carry their own risk under section nine, article two of this chapter that is
set aside to create and maintain a reserve of the fund to cover the catastrophe hazard and all losses
not otherwise specifically provided for in this chapter. The percentage to be set aside is determined
pursuant to the rules adopted to implement section four, article two of this chapter and shall be in
an amount sufficient to maintain a solvent fund. All interest earned on investments by the workers'
compensation fund, which is attributable to the reserve, shall be credited to the fund. Effective upon
termination of the commission, all funds in the catastrophe fund shall be transferred into the old
fund, all claims payable as a consequence of a catastrophe hazard shall be payable from the old fund
and any premiums due under this article shall be payable to the old fund. Employers shall purchase
catastrophe insurance from the company or another private carrier and shall also reinsure their
catastrophic risk.
(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; loss of both hands or the use thereof; 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 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 previously elected, or may later elect, to pay into the
catastrophe reserve of the fund under the provisions of said section, the catastrophe payment arising
from the catastrophe shall not be charged against, or paid by, the employer but shall be paid from
the catastrophe reserve of the fund.
(d) For all awards made on or after the effective date of the amendments to this section
enacted during the year two thousand three, the following provisions relating to second injury are
not applicable. For awards made before the date specified in this subsection, 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 the 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 the second injury: Provided, That in addition to
the 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 the workers'
compensation fund. 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 is 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 employer under the provisions of section nine, article two of this chapter.
(e) Employers electing, as provided in this chapter, to compensate individually and directly
their injured employees and their fatally injured employees' dependents shall do so in the manner
prescribed by the commission and shall make all reports and execute all blanks, forms and papers
as directed by the commission, and as provided in this chapter.
§23-3-4. Deposits and disbursements considered abandoned property; disposition of
property.
(a) All disbursements from the workers' compensation fund and the other funds created
pursuant to this chapter including the advance deposits by employers where there has been no
activity for a period of five years, are presumed abandoned and subject to the custody of the state as
unclaimed property under the provisions of article eight, chapter thirty-six of this code. The funds
shall be kept in a separate account by the state treasurer, apart from other unclaimed property funds.
Ninety days after the state treasurer has advertised the accounts and paid any claims, he or she shall
remit the balance of those funds held in the account to the credit of the workers' compensation fund
or to other affected funds. Such property shall become the property of, and owned exclusively by,
the workers' compensation fund. Effective upon termination of the commission, said funds
otherwise meeting the requirements of this section shall be deposited into the old fund as set forth
in article two-c of this chapter.
(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 are credited only to the account of the workers' compensation fund
or to such other affected fund.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1b. Report of injuries by employers.
It is the duty of every employer to report to the commission, the successor to the commission
or another private carrier, whichever is applicable, every injury sustained by any person in his or her employ. The report shall be on forms prescribed by the commission or the Insurance Commissioner,
whichever is applicable, and shall be made within five days of the employer's receipt of the
employee's notice of injury, required by section one-a of this article, or within five days after the
employer has been notified by the commission or the Insurance Commissioner, whichever is
applicable, that a claim for benefits has been filed on account of such injury, whichever is sooner,
and, notwithstanding any other provision of this chapter to the contrary, the five-day period may not
be extended by the commission the successor to the commission, or another private carrier,
whichever is applicable, but the employer has the right to file a supplemental report at a later date.
The employer's report of injury shall include a statement as to whether or not, on the basis of the
information available, the employer disputes the compensability of the injury or objects to the
payment of temporary total disability benefits in connection with the injury. The statements by the
employer shall not prejudice the employer's right thereafter to contest the compensability of the
injury, or to object to any subsequent finding or award, in accordance with article five of this chapter;
but an employer's failure to make timely report of an injury as required in this section, or statements
in the report to the effect that the employer does not dispute the compensability of the injury or
object to the payment of temporary total disability benefits for the injury, shall be considered to be
a waiver of the employer's right to object to any interim payment of temporary total disability
benefits paid by the commission, the successor to the commission, or another private carrier with
respect to any period from the date of injury to the date of the commission's receipt of any objection
made to the interim payments by the employer.
§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of
medical benefits; payments of benefits during protest; right of
commission, successor to the commission, other private carriers
and self-insured employers to collect payments improperly made.
(a) In any claim for benefits under this chapter, the workers' compensation commission, the
successor to the commission, other private carriers or self-insured employer, whichever is applicable, shall determine whether the claimant has sustained a compensable injury within the meaning of
section one of this article and enter an order giving all parties immediate notice of the decision.
(1) The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may enter an order conditionally approving the claimant's
application if the commission it finds that obtaining additional medical evidence or evaluations or
other evidence related to the issue of compensability would aid the commission 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, the payments shall be considered an overpayment. The
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, may only recover the amount of the overpayment as provided for in subsection (h) 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 commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall consider the date of the filing of the claim for benefits for
a determination of the following:
(A) Whether the claimant had a scheduled shutdown beginning within one week of the date
of the filing;
(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;
(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, the 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 may object to the order of the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, and obtain an evidentiary hearing
as provided in section one, article five of this chapter: Provided, That if the successor to the
commissioner, other private carrier or self-insured, whichever is applicable, fails to timely issue a
ruling upon any application or motion as provided by law, or if the claimant files a timely protest to
the ruling of a self-insured employer, private carrier, or other issuing entity, denying the
compensability of the claim, denying initial temporary total disability benefits or denying medical
authorization, the office of judges shall provide a hearing on the protest on an expedited basis as
determined by rule of the office of judges.
(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 commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, 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 the injury, without waiting for the expiration of the thirty-day
period during which objections may be filed to the findings as provided in section one, article five
of this chapter. The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall enter an order commencing the payment of temporary total
disability or medical benefits within fifteen working 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 commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable,
shall give to the parties immediate notice of any order granting temporary total disability or medical
benefits. When an order granting temporary total disability benefits is made, the claimant's return-to-
work potential shall be assessed. The commission may schedule medical and vocational evaluation
of the claimant and assign appropriate personnel to expedite the claimant's return to work as soon
as reasonably possible.
(c) The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may enter orders granting temporary total disability benefits upon
receipt of medical evidence justifying the payment of the benefits. The commission, successor to
the commission, other private carrier or self-insured employer, whichever is applicable, may not
enter an order granting prospective temporary total disability benefits for a period of more than
ninety days: Provided, That when the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, determines that the claimant remains
disabled beyond the period specified in the prior order granting temporary total disability benefits,
the commission 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 the
decision.
(d) Upon receipt of the first report of injury in claim, the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, 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 commission with this
information within fifteen days from the date the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, 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
commission obtains from reports made pursuant to subsection (b), section two, article two of this
chapter. If no wages have been reported, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall make the payments at the rate the
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, finds would be justified by the usual rate of pay for the occupation of the injured
employee. The commission shall adjust the rate of benefits shall be adjusted both retroactively and
prospectively upon receipt of proper wage information. The commission shall have access to all
wage information in the possession of any state agency.
(e) Subject to the limitations set forth in section sixteen of this article, upon a finding of the
commission, or self-insured employer successor to the commission, other private carrier or self-
insured employer, whichever is applicable, that a claimant who has sustained a previous
compensable injury which has been closed by order, 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 commission or the self-insured employer shall immediately commence the
payment of temporary total disability benefits to the claimant in the amount provided for in sections
six and fourteen of this article shall immediately commence, and the expenses provided for in
subsection (a), section three of this article, relating to the disability, without waiting for the
expiration of the thirty-day period during which objections may be filed. The commission or the
self-insured employer shall give Immediate notice to the parties of the decision shall be given.
(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 commission 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 its own risk under section nine, article two of
this chapter, and upon the findings aforesaid, the self-insured employer shall immediately pay the
amounts due the claimant for temporary total disability benefits. A copy of the notice shall be sent
to the claimant.
(h) In the event that an employer files a timely objection to any order of the 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 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 division that
the claimant was not entitled to receive such temporary total disability benefits or expenses, or any
part thereof, so paid, the division shall, when the employer is a subscriber to the fund, credit said
employer's account with the amount of the overpayment. 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 that case determines that the claimant was not entitled to the benefits or
expenses, the amount of benefits or expenses is considered overpaid. For all awards made or
nonawarded partial benefits paid the commission, the successor to the commission, other private
carriers, or self-insured employer may only recover the amount of overpaid benefits or expenses by
withholding, in whole or in part, future disability benefits payable to the individual in the same or
other claims and credit the amount against the overpayment until it is repaid in full.
(i) In the event that the commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, finds that, based upon the employer's report of injury,
the claim is not compensable, the commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall provide a copy of the employer's report to the
claimant in addition to the order denying the claim.
(j) If a claimant is receiving benefits paid through a wage replacement plan, salary
continuation plan or other benefit plan provided by the employer to which the employee has not
contributed, and that plan does not provide an offset for temporary total disability benefits to which
the claimant is also entitled under this chapter as a result of the same injury or disease, the employer
shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of
the notice, the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall reduce the temporary total disability benefits provided under this chapter by an amount sufficient to ensure that the claimant does not receive monthly benefits
in excess of the amount provided by the employer's plan or the temporary total disability benefit,
whichever is greater: Provided, That this subsection does not apply to benefits being paid under the
terms and conditions of a collective bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, makes an award for permanent partial or permanent total
disability, the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, or self-insured employer shall start payment of benefits by
mailing or delivering the amount due directly to the employee within fifteen working days from the
date of the award: Provided, That the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may withhold payment of the portion of
the award that is the subject of subsection (b) of this section until seventy-seven days have expired
without an objection being filed.
(b) When the commission, successor to the commission, other private carrier, self-insured
employer, the office of judges or the workers' compensation board of review, whichever is
applicable, enters an order or provides notice granting the claimant a permanent total disability award
and an objection or petition for appeal is filed by the employer, or the commission or self-insured
employer shall begin the, the successor to the commission or other private carrier, payment of
monthly permanent total disability benefits shall begin. 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 and the award of permanent total
disability benefits is upheld, the claimant shall receive the remainder of benefits due to him or her
based upon the onset date of permanent total disability that was finally determined.
(c) If the claimant is owed any additional payment of back permanent total disability benefits, the commission, or self-insured employer successor to the commission, other private carrier or self-
insured employer, whichever is applicable, 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.
(d) If a timely protest to the award is filed, as provided in section one or nine, article five of
this chapter, the commission or self-insured employer benefits shall continue pay to be paid to the
claimant benefits during the period of the disability unless it is subsequently found that the claimant
was not entitled to receive the benefits, or any part thereof, in which event the commission shall,
where the employer is a subscriber to the fund, credit the employer's account with the amount of the
overpayment. 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, the amount of benefit paid shall be
considered overpaid. For all awards made or nonawarded partial benefits paid the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
may only recover that amount by withholding, in whole or in part, as determined by the commission
or self-insured employer, successor to the commission, other private carrier or self-insured employer,
whichever is applicable, future disability benefits payable to the individual in the same or other
claims and credit the amount against the overpayment until it is repaid in full.
(e) An award for permanent partial disability shall be made as expeditiously as possible and
in accordance with the time frame requirements promulgated by the board of managers.
(f) If a claimant is receiving benefits paid through a retirement plan, wage replacement plan,
salary continuation plan or other benefit plan provided by the employer to which the employee has
not contributed, and that plan does not provide an offset for permanent total disability benefits to which the claimant is also entitled under this chapter as a result of the same injury or disease, the
employer shall notify the commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, of the duplication of the benefits paid to the claimant.
Upon receipt of the notice, the commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall reduce the permanent total disability benefits
provided under this chapter by an amount sufficient to ensure that the claimant does not receive
monthly benefits in excess of the amount provided by the employer's plan or the permanent total
disability benefit, whichever is greater: Provided, That this subsection does not apply to benefits
being paid under the terms and conditions of a collective bargaining agreement.
§23-4-1e. Temporary total disability benefits not to be paid for periods of correctional center
or jail confinement; denial of workers' compensation benefits for
injuries or disease incurred while confined.
(a) Notwithstanding any provision of this code to the contrary, no person shall be
jurisdictionally entitled to temporary total disability benefits for that period of time in excess of three
days during which that person is confined in a state correctional facility or a county or regional jail:
Provided, That confinement shall not affect the claimant's eligibility for payment of expenses:
Provided, however, That this subsection is applicable only to injuries and diseases incurred prior to
any period of confinement. Upon release from confinement, the payment of benefits for the
remaining period of temporary total disability shall be made if justified by the evidence and
authorized by order of the commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable.
(b) Notwithstanding any provision of this code to the contrary, no person confined in a state
correctional facility or a county or regional jail who suffers injury or a disease in the course of and
resulting from his or her work during the period of confinement which work is imposed by the
administration of the state correctional facility or the county or regional jail and is not suffered
during the person's usual employment with his or her usual employer when not confined shall receive benefits under the provisions of this chapter for the injury or disease.
§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 program; payments;
interlocutory orders.
(a) The workers' compensation commission, and effective upon termination of the
commission, the Insurance Commissioner, shall establish and alter from time to time, as the
commission it determines appropriate, a schedule of the maximum reasonable amounts to be paid
to 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
commission and effective upon termination of the commission, the Insurance Commissioner, also,
on the first day of each regular session and also from time to time, as it may consider appropriate,
shall submit the schedule, with any changes thereto, to the Legislature.
The commission, and effective upon termination of the commission, all private carriers and
self-insured employers or their agents, shall disburse and pay from the fund for personal injuries to
the employees who are entitled to the benefits under this chapter as follows:
(1) Sums for health care services, rehabilitation services, durable medical and other goods
and other supplies and medically related items as may be reasonably required. The commission, and
effective upon termination of the commission, all private carriers and self-insured employers or their agents, 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 in this section 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 section three-b of this article may be used by the commission, and effective upon
termination of the commission, all private carriers and self-insured employers or their agents, 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 guideline
shall submit to the commission, and effective upon termination of the commission, all private
carriers, self-insured employers and other payors, specific justification for the need for the additional
services in the particular case and the commission shall have the justification reviewed by a health
care professional before authorizing the additional services. The commission, and effective upon
termination of the commission, all private carriers, self-insured employers and other payors, may
enter into preferred provider and managed care agreements which provides for fees and other
payments which deviate from the schedule set forth in this subsection.
(2) Payment for 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 the treatment or
furnished health care services, rehabilitation services, durable medical or other goods or other
supplies and items, or who has advanced payment for them, as the commission, and effective upon
termination of the commission, all private carriers, self-insured employers and other payors,
considers proper, but no payments or disbursements shall be made or awarded by the commission
unless duly verified statements on forms prescribed by the commission, and effective upon
termination of the commission, all private carriers, self-insured employers and other payors, have been filed with the commission within six months after the rendering of the treatment or the delivery
of such goods, supplies or items or within ninety days of a subsequent compensability ruling if a
claim is initially rejected: Provided, That no payment under this section shall be made unless a
verified statement shows no charge for or with respect to the treatment or for or with respect to any
of the items specified in this subdivision has been or will be made against the injured employee or
any other person, firm or corporation. 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 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 the treatment may not
make any charge or charges for the treatment or with respect to the treatment 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 commission schedule
set forth in this subsection.
(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 exists. If a generic
brand does not exist, the pharmacist may dispense the name brand. In the event that a claimant
wishes to receive the name brand medication in lieu of the generic brand, the claimant may receive
the name brand medication but, in that event, the claimant is 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 commission,
and effective upon termination of the commission, all private carriers and self-insured employers or
their agents, pursuant to the schedule of maximum reasonable amounts of fees authorized by this
subsection, with the exceptions noted below, the claimant is 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, the claimant is not 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 the claimant refuses to seek the specified
alternative health care providers, he or she is 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 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, the
commission, upon application by the claimant, may authorize the claimant to receive medical
services from another health care provider. The claimant is not personally liable for the difference
in costs between the scheduled amount and the amount demanded by the health care provider.
(b) (1) 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 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 the compensable injury.
Any employer violating this subsection is 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 is 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.
(2) The provisions of this subsection shall not prohibit an employer, the successor to the
commission, other private carrier or self-insured employer from participating in a managed health
care plan, including, but not limited to, 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. An employer, successor to
the commission, other private carrier or self-insured employer that provides a managed health care
plan approved by the commission or, upon termination of the commission, the Insurance
Commissioner, for its employees or the employees of its insured may require an injured employee
to use health care providers authorized by the managed health care plan for care and treatment of his
or her compensable injuries. If the employer does not provide a managed health care plan or
program, the claimant may select his or her initial health care provider for treatment of a
compensable injury or disease, except as provided under subdivision (3) of this subsection. If a
claimant wishes to change his or her health care provider and if his or her employer has established
and maintains a managed health care plan, the claimant shall select a new health care provider
through the managed health care plan. A claimant who has used the providers under the employer's
managed health care plan may select a health care provider outside the employer's plan for treatment
of the compensable injury or disease if the employee receives written approval from the commission
to do so and the approval is given pursuant to criteria established by rule of the commission.
(3) If the commission enters into an agreement which has been approved by the board of
managers with a managed health care plan, including, but not limited to, a preferred provider
organization or program, a health maintenance organization or managed care organization or other
health care delivery organization or organizations or other medical cost containment relationship
with the providers of medical, hospital or other health care, then:
(A) If an injured employee's employer does not provide a managed health care plan approved
by the commission for its employees as described in subdivision (2) of this subsection, the commission may require the employee to use health care providers authorized by the commission's
managed health care plan for care and treatment of his or her compensable injuries; and
(B) If a claimant seeks to change his or her initial choice of health care provider where
neither the employer nor the commission had an approved health care management plan at the time
the initial choice was made, and if the claimant's employer does not provide access to such a plan
as part of the employer's general health insurance benefit, then the claimant shall be provided with
a new health care provider from the commission's managed health care plan available to him or her.
(C) (c) When an injury has been reported to the commission by the employer without protest,
the commission or self-insured employer may pay, within the maximum amount provided by
schedule established under this section, bills for health care services without requiring the injured
employee to file an application for benefits.
(c) (d) The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, or self-insured employer 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 devices to be originally furnished, or which are broken
in the course of and as a result of the employee's employment. The commission, successor to the
commission, other private carrier or self-insured employer shall pay for these devices, when needed,
notwithstanding any time limits provided by law.
(d) (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.
(e) (f) The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may engage in and contract for medical cost containment
programs, pharmacy benefits management programs, medical case management programs and
utilization review programs. Payments for these programs shall be made from the workers'
compensation fund or the funds of the successor to the commission, other private carrier, or self-insured employer. Any order issued pursuant to the program shall be interlocutory in nature until
an objecting party has exhausted all review processes provided for by the commission, successor to
the commission, other private carrier or self-insured employer, whichever is applicable.
(f) (g) Notwithstanding the provisions of this section, the commission, successor to the
commission, other private carrier or self-insured employer may establish fee schedules, make
payments and take other actions required or allowed pursuant to article twenty-nine-d, chapter
sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
(a) The commission shall establish a health care advisory panel consisting of representatives
of the various branches and specialties among health care providers in this state which shall be in
existence until termination of the commission. There shall be a minimum of five members of the
health care advisory panel who shall receive reasonable compensation for their services and
reimbursement for reasonable actual expenses. Each member of this panel shall be provided
appropriate professional or other liability insurance, without additional premium, by the state board
of risk and insurance management created pursuant to article twelve, chapter twenty-nine of this
code. The panel shall:
(1) Establish guidelines for the health care which is reasonably required for the treatment of
the various types of injuries and occupational diseases within the meaning of section three of this
article;
(2) Establish protocols and procedures for the performance of examinations or evaluations
performed by physicians or medical examiners pursuant to sections seven-a and eight of this article;
(3) Assist the commission in establishing guidelines for the evaluation of the care provided
by health care providers to injured employees for purposes of section three-c of this article;
(4) Assist the commission in establishing guidelines regarding the anticipated period of
disability for the various types of injuries pursuant to subsection (b), section seven-a of this article;
and
(5) Assist the commission in establishing appropriate professional review of requests by
health care providers to exceed the guidelines for treatment of injuries and occupational diseases
established pursuant to subdivision (1) of this section.
(b) In addition to the requirements of subsection (a) of this section, on or before the thirty-
first day of December, two thousand three, the board of managers shall promulgate a rule
establishing the process for the medical management of claims and awards of disability which
includes, but is not limited to, reasonable and standardized guidelines and parameters for appropriate
treatment, expected period of time to reach maximum medical improvement and range of permanent
partial disability awards for common injuries and diseases or, in the alternative, which incorporates
by reference the medical and disability management guidelines, plan or program being utilized by
the commission for the medical and disability management of claims, with the requirements,
standards, parameters and limitations of such guidelines, plan or program having the same force and
effect as the rule promulgated in compliance herewith.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties.
(a) In case the personal injury causes death, reasonable funeral or cemetery expense, in an
amount to be fixed, from time to time, by the commission, and upon its termination, the Insurance
Commissioner, shall be paid from the fund, or the private carrier, payment to be made to the persons
who have furnished the services and supplies, or to the persons who have advanced payment for the
services and supplies, as the commission may determine proper, in addition to any award made to
the employee's dependents.
(b) A funeral director or cemeterian, or any person who furnished the services and supplies
associated with the funeral or cemetery expenses, or a person who has advanced payment for the
services and supplies, 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 commission, and upon it's termination, the Insurance Commissioner,
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
commission or Insurance Commissioner; 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 commission or the Insurance Commissioner.
(c) Any person who knowingly and willfully seeks or receives payment of funeral expenses
in excess of the amount fixed by the commission or the Insurance Commissioner 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 a county or regional 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 terms "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, 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) For all awards made on and after the effective date of the amendment and reenactment
of this section during the year two thousand three, if the injury causes temporary total disability, the
employee shall receive during the continuance of the disability a maximum weekly benefit to be
computed on the basis of sixty-six and two-thirds percent of the average weekly wage earnings,
wherever earned, of the injured employee, at the date of injury, not to exceed one hundred percent
of the average weekly wage in West Virginia: Provided, That in no event shall an award for temporary total disability be subject to annual adjustments resulting from changes in the average
weekly wage in West Virginia: Provided, however, in the case of a claimant whose award was
granted prior to the effective date of the amendment and reenactment of this section during the year
two thousand three, 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. The minimum weekly benefits
paid under this subdivision shall not be less than thirty-three and one-third percent of the average
weekly wage in West Virginia, except as provided in sections six-d and nine of this article. In no
event, however, shall the minimum weekly benefits exceed the level of benefits determined by use
of the applicable federal minimum hourly wage: Provided further, 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 in this subdivision that the minimum weekly benefit shall not
exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section is limited as follows: Aggregate award for a single injury
causing temporary disability shall be for a period not exceeding two hundred eight weeks; aggregate
award for a single injury for which an award of temporary total disability benefits is made on or after
the effective date of the amendment and reenactment of this section in the year two thousand three
shall be for a period not exceeding one hundred four weeks. Notwithstanding any other provision
of this subdivision to the contrary, no person may receive temporary total disability benefits under
an award for a single injury for a period exceeding one hundred four weeks from the effective date
of the amendment and reenactment of this section in the year two thousand three.
(d) For all awards of permanent total disability benefits that are made on or after the second
day of February, one thousand nine hundred ninety-five, including those claims in which a request
for an award was pending before the division or which were in litigation but not yet submitted for
a decision, then benefits shall be payable until the claimant attains the age necessary to receive
federal old age retirement benefits under the provisions of the Social Security Act, 42 U.S.C. §§401 and 402, in effect on the effective date of this section. The 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 under this section
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, the awards shall continue to be paid at the rate in effect prior to the effective
date of the amendment and reenactment of this section in the year two thousand three: Provided,
That the provisions of sections one through eight, inclusive, article four-a of this chapter shall be
applied thereafter to all prior awards that were previously subject to its provisions. A single or
aggregate permanent disability of eighty-five percent or more entitles the employee to a rebuttable
presumption of a permanent total disability for the purpose of paragraph (2), subdivision (n) of this
section: Provided, however, That the claimant must also be at least fifty percent medically impaired
upon a whole body basis or has sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section. The presumption may be rebutted if the evidence
establishes that the claimant is not permanently and totally disabled pursuant to subdivision (n) of
this section. Under no circumstances may the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, grant an additional permanent
disability award to a claimant receiving a permanent total disability award: Provided further, That
if any claimant thereafter sustains another compensable injury and has permanent partial disability
resulting from the injury, the total permanent disability award benefit rate shall be computed at the
highest benefit rate justified by any of the compensable injuries.
(e) (1) For all awards made on or after the effective date of the amendment and reenactment
of this section during the year two thousand three, if the injury causes permanent disability less than
permanent total disability, the percentage of disability to total disability shall be determined and the
award computed on the basis of four weeks' compensation for each percent of disability determined at the maximum or minimum benefit rates as follows: Sixty-six and two-thirds percent of the average
weekly wage earnings, wherever earned, of the injured employee at the date of injury, not to exceed
seventy percent of the average weekly wage in West Virginia: Provided, That in no event shall an
award for permanent partial disability be subject to annual adjustments resulting from changes in the
average weekly wage in West Virginia: Provided, however, That in the case of a claimant whose
award was granted prior to the effective date of the amendment and reenactment of this section
during the year two thousand three, the maximum benefit rate shall be the rate applied under the
prior enactment of this section which was in effect at the time the injury occurred.
(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 a position is available to be
offered, the award for the percentage of partial disability shall be computed on the basis of six weeks
of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be as provided in subdivision
(b) of this section for temporary total disability.
(f) If the injury results in the total loss by severance of any of the members named in this
subdivision, the percentage of disability shall be determined by the percentage of disability, specified
in the following table:
The loss of a great toe shall be considered a ten percent disability.
The loss of a great toe (one phalanx) shall be considered a five percent disability.
The loss of other toes shall be considered a four percent disability.
The loss of other toes (one phalanx) shall be considered a two percent disability.
The loss of all toes shall be considered a twenty-five percent disability.
The loss of forepart of foot shall be considered a thirty percent disability.
The loss of a foot shall be considered a thirty-five percent disability.
The loss of a leg shall be considered a forty-five percent disability.
The loss of thigh shall be considered a fifty percent disability.
The loss of thigh at hip joint shall be considered a sixty percent disability.
The loss of a little or fourth finger (one phalanx) shall be considered a three percent
disability.
The loss of a little or fourth finger shall be considered a five percent disability.
The loss of ring or third finger (one phalanx) shall be considered a three percent disability.
The loss of ring or third finger shall be considered a five percent disability.
The loss of middle or second finger (one phalanx) shall be considered a three percent
disability.
The loss of middle or second finger shall be considered a seven percent disability.
The loss of index or first finger (one phalanx) shall be considered a six percent disability.
The loss of index or first finger shall be considered a ten percent disability.
The loss of thumb (one phalanx) shall be considered a twelve percent disability.
The loss of thumb shall be considered a twenty percent disability.
The loss of thumb and index fingers shall be considered a thirty-two percent disability.
The loss of index and middle fingers shall be considered a twenty percent disability.
The loss of middle and ring fingers shall be considered a fifteen percent disability.
The loss of ring and little fingers shall be considered a ten percent disability.
The loss of thumb, index and middle fingers shall be considered a forty percent disability.
The loss of index, middle and ring fingers shall be considered a thirty percent disability.
The loss of middle, ring and little fingers 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 commission, 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 commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, using as a basis the total loss of hearing in both ears.
If a claimant sustains a compensable injury which results in the total loss by severance of any
of the bodily members named in this subdivision or dies from sickness or noncompensable injury
before the commission makes the proper award for the injury, the commission shall make the award
to the claimant's dependents as defined in this chapter, if any; the 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 the claimant after his or her remarriage and that this liability shall
not accrue to the estate of the claimant and is not subject to any debts of, or charges against, the
estate.
(g) If a claimant to whom has been made a permanent partial award dies from sickness or
noncompensable injury, the unpaid balance of the award shall be paid to claimant's dependents as
defined in this chapter, if any; the 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 the
claimant after his or her remarriage, and that this liability shall not accrue to the estate of the
claimant and is not subject to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the occupational pneumoconiosis board has
the force and effect of an award.
(i) For the purposes of this chapter, with the exception of those injuries provided for in
subdivision (f) of this section and in section six-b of this article, the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body
medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f)
of this section and section six-b of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said section. The occupational pneumoconiosis
board created pursuant to section eight-a of this article shall premise its decisions on the degree of
pulmonary function impairment that claimants suffer solely upon whole body medical impairment.
The workers' compensation commission 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 is applicable to
all injuries incurred and diseases with a date of last exposure on or after the second day of February,
one thousand nine hundred ninety-five, to all applications for an award of permanent partial
disability made on and after that date and to all applications for an award of permanent partial
disability that were pending before the commission or pending in litigation but not yet submitted for
decision on and after that date. The prior provisions of this subdivision remain in effect for all other
claims.
(j) From a list of names of seven persons submitted to the executive director by the health
care advisory panel, the executive director shall appoint an interdisciplinary examining board
consisting of five members to evaluate claimants, including by examination if the board elects. The
interdisciplinary examining board shall terminate upon termination of the commission and all
administrative and adjudicatory functions performed by the interdisciplinary examining board shall
be performed by the following reviewing bodies for those claims over which they have
administrative jurisdiction: (1) The Insurance Commissioner or his or her designated administrator
of each of the funds set forth in this chapter; (2) private carriers; or (3) self-insured employers. The
reviewing bodies shall employ or otherwise engage adequate resources, including medical
professionals, to perform the functions of the interdisciplinary examining board. 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 executive director. 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. 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 executive director, from time to time, shall fix the compensation
to be paid to each member of the board, and the members are also entitled to reasonable and
necessary traveling and other expenses incurred while actually engaged in the performance of their
duties. The board shall perform the duties and responsibilities assigned by the provisions of this
chapter, consistent with the administrative policies developed by the executive director with the
approval of the board of managers.
(1) The executive director shall establish requirements for the proper completion and support
for an application for permanent total disability benefits within an existing or a new rule no later than
the first day of January, two thousand four. Upon adoption of the rule by the board of managers, no
issue of permanent total disability may be referred to the interdisciplinary examining board, or, any
other reviewing body, unless a properly completed and supported application for permanent total
disability benefits has been first filed with the commission. Prior to the referral of any issue to the
interdisciplinary examining board, or, upon its termination, prior to a reviewing body's adjudication
of a permanent total disability application, the commission, or reviewing body shall conduct
examinations of the claimant that 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 commission or reviewing body 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 or other reviewing body and shall furnish to the board or other
reviewing body 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 may have the claimant examined by medical specialists and vocational rehabilitation
specialists: Provided, That the employer is entitled to only one examination on each issue present
in a given claim. Any additional examinations must be approved by the commission or other
reviewing body and shall be granted only upon a showing of good cause. The reports from all
employer-conducted examinations must be filed with the board or other reviewing body and served
upon the claimant. The board or other reviewing body may request that those persons who have
furnished reports and opinions regarding a claimant provide it with additional information
considered necessary. by the board. Both the claimant and the employer, as well as the commission,
or other reviewing body may submit or obtain reports from experts challenging or supporting the
other reports in the record regardless of whether or not the expert examined the claimant or relied
solely upon the evidence of record.
(2) If the board or a quorum of the board elects to examine a claimant, the individual
members shall conduct any examinations that 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 board of managers determines that the number of applications
pending before the interdisciplinary examining board has exceeded the level at which the board can
review and make recommendations within a reasonable time, the board of managers may authorize
the executive director to appoint any additional members to the board that are necessary to reduce
the backlog of applications. The additional members shall be recommended by the health care
advisory panel. The executive director may make any appointments he or she chooses from the
recommendations. The additional board members shall not serve a set term but shall serve until the
board of managers determines that the number of pending applications has been reduced to an
acceptable level.
(3) Referrals to the board shall be limited to matters related to the determination of permanent
total disability under the provisions of subdivision (n) of this section and to questions related to
medical cost containment, utilization review decisions and managed care decisions arising under
section three of this article.
(4) In the event the board members or other reviewing body elects to examine a claimant, the
board or other reviewing body 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 or other reviewing body and the reasons for the
findings. Copies of the reports of all examinations made by the board or other reviewing body shall
be served upon the parties and the commission until its termination. Each shall be given an
opportunity to respond in writing to the findings and conclusions stated in the reports.
(5) The board or other reviewing body shall state its initial recommendations to the
commission in writing with an explanation for each recommendation setting forth the reasons for
each. The recommendations shall be served upon the parties and the commission and each shall be
afforded a thirty-day opportunity to respond in writing to the board or other reviewing body
regarding the board's its recommendations. The board or other reviewing body shall review any
responses and issue its final recommendations. The final recommendations shall be effectuated by
the entry of an appropriate order by the commission, or, upon its termination, the private carrier or
self-insured employer. For all awards for permanent total disability where the claim was filed on or
after the effective date of the amendment and reenactment of this section in the year two thousand
three, the commission or other reviewing body shall establish the date of onset of the claimant's
permanent total disability as the date when a properly completed and supported application for
permanent total disability benefits as prescribed in subdivision (1) of this subsection that results in
a finding of permanent total disability was filed with the commission or other reviewing body:
Provided, That upon notification of the commission or other reviewing body by a claimant or his or
her representative that the claimant seeks to be evaluated for permanent total disability, the commission or other reviewing body shall send the claimant or his or her representative the proper
application form. The commission or other reviewing body shall set time limits for the return of the
application. A properly completed and supported application returned within the time limits set by
the commission or other reviewing body shall be treated as if received on the date the commission
or other reviewing body was notified the claimant was seeking evaluation for permanent total
disability: Provided, however, That notwithstanding any other provision of this section to the
contrary, the onset date may not be sooner than the date upon which the claimant meets the
percentage thresholds of prior permanent partial disability that are established by subsection (n) of
this section as a prerequisite to the claimant's qualification for consideration for a permanent total
disability award.
(6) Except as noted below, objections pursuant to section one, article five of this chapter to
any order shall be limited in scope to matters within the record developed before the workers'
compensation commission and the board or other reviewing body and shall further be limited to the
issue of whether the board or other reviewing body 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. The preponderance
of the evidence set forth in article one of this chapter shall apply to decisions made by reviewing
bodies other than the commission instead of the clearly wrong standard. If either party contends that
the claimant's condition has changed significantly since the review conducted by the board or other
reviewing body, the party may file a motion with the administrative law judge, together with a report
supporting that assertion. Upon the filing of the motion, the administrative law judge shall cause a
copy of the report to be sent to the examining board or other reviewing body asking the board to
review the report and provide comments if the board chooses within sixty days of the board's receipt
of the report. The board or other reviewing body may either supply comments or, at the board's or
other reviewing body's discretion, request that the claim be remanded to the board for further review.
If remanded, the claimant is not required to submit to further examination by the employer's medical specialists or vocational rehabilitation specialists. Following the remand, the board or other
reviewing body shall file its recommendations with the administrative law judge for his or her
review. If the board or other reviewing body elects to respond with comments, the comments shall
be filed with the administrative law judge for his or her review. Following the receipt of either the
board's or other reviewing body's recommendations or comments, the administrative law judge shall
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 commission 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 or other reviewing body's findings and conclusions. Thereafter,
based upon the evidence 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. The limitation of the scope of review otherwise provided in this subsection is not
applicable upon termination of the commission and any objections shall be subject to article five of
this chapter in its entirety.
(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 to the compensation 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 the injured employee if there are any
dependents at the time of death.
(m) The following permanent disabilities shall be conclusively presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n) (1) Other than for those injuries specified in subdivision (m) of this section, in order to
be eligible to apply for an award of permanent total disability benefits for all injuries incurred and
all diseases, including occupational pneumoconiosis, regardless of the date of last exposure, on and
after the effective date of the amendment and reenactment of this section during the year two
thousand three, a claimant: (A) Must have been awarded the sum of fifty percent in prior permanent
partial disability awards; (B) must have suffered a single occupational injury or disease which results
in a finding by the commission that the claimant has suffered a medical impairment of fifty percent;
or (C) has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision
(f) of this section. Upon filing an application, the claim will be reevaluated by the examining board
or other reviewing body pursuant to subdivision (i) of this section to determine if the claimant 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 or has sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section. A claimant whose prior permanent partial disability
awards total eighty-five percent or more shall also be examined by the board or other reviewing body
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 or other reviewing body
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 or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f) of this section, the request shall be
denied. Upon a finding that the claimant has a fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this
section, the review of the application continues 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 or have sustained a thirty-five percent statutory disability pursuant to the provisions of
subdivision (f) of this section are entitled to the rebuttable presumption created pursuant to
subdivision (d) of this section for the remaining issues in the request.
(2) For all awards made on or after the effective date of the amendment and reenactment of
this section during the year two thousand three, disability which renders the injured employee unable
to engage in substantial gainful activity requiring skills or abilities which can be acquired or which
are 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. The comparability of preinjury income to post-disability income will not be a factor in
determining permanent total disability. Geographic availability of gainful employment within a
driving distance of seventy-five miles from the residence of the employee or within the distance from
the residence of the employee to his or her preinjury employment, whichever is greater, will be a
factor in determining permanent total disability. For any permanent total disability award made after
the amendment and reenactment of this section in the year two thousand three, permanent total
disability benefits shall cease at age seventy years. In addition, the vocational standards adopted
pursuant to subsection (m), section seven, article three of this chapter 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 or has sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section, is denied an award of permanent total disability benefits
pursuant to this subdivision and accepts and continues to work at a lesser paying job than he or she
previously held, the claimant is eligible, notwithstanding the provisions of section nine of this article, to receive temporary partial rehabilitation benefits for a period of four years. The benefits shall be
paid at the level necessary to ensure the claimant's receipt of the following percentages of the average
weekly wage earnings of the claimant at the time of injury calculated as provided in this section and
sections six-d and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no event shall the benefits exceed one
hundred percent of the average weekly wage in West Virginia. In no event shall the benefits be
subject to the minimum benefit amounts required by the provisions of subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection, subsection (d) of this section or any
other provision of this code to the contrary, on any claim filed on or after the effective date of the
amendment and reenactment of this section in the year two thousand three:
(A) No percent of whole body medical impairment existing as the result of carpal tunnel
syndrome for which a claim has been made under this chapter may be included in the aggregation
of permanent disability under the provisions of this subsection or subsection (d) of this section; and
(B) No percent of whole body medical impairment existing as the result of any occupational
disease, the diagnosis of which is based solely upon symptoms rather than specific, objective and
measurable medical findings, and for which a claim has been made under this chapter may be
included in the aggregation of permanent disability under the provisions of this subsection or
subsection (d) of this section.
(o) To confirm the ongoing permanent total disability status of the claimant, the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
may elect to have any recipient of a permanent total disability award undergo one independent
medical examination during each of the first five years that the permanent total disability award is
paid and one independent medical examination during each three-year period thereafter until the claimant reaches the age of seventy years: Provided, That the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, may elect to
have any recipient of a permanent total disability award under the age of fifty years undergo one
independent medical examination during each year that the permanent total disability award is paid
until the recipient reaches the age of fifty years, and thereafter one independent medical examination
during each three-year period thereafter until the claimant reaches the age of seventy years.
§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 is determined by the
degree of medical impairment that is found by the occupational pneumoconiosis board. The
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, 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 is the final decision of the commission for
purposes of section one, article five of this chapter. If a decision is objected to, the office of judges
shall affirm the decision of the 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 is 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),
section six of this article: Provided, That for any employee who applies for occupational
pneumoconiosis benefits whose award was granted on or after the effective date of the amendment
and reenactment of this section during the year two thousand three, there shall be no permanent
partial disability awarded based solely upon a diagnosis of occupational pneumoconiosis, it being
the intent of the Legislature to eliminate any permanent partial disability awards for occupational pneumoconiosis without a specific finding of measurable impairment.
If the employee dies from occupational pneumoconiosis, the benefits shall be as provided for
in section ten of this article; as to the benefits sections eleven to fourteen, inclusive, of this article
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 of this article four of this chapter and sections two, three,
four and five, article five of this chapter providing for the further adjustment of claims are applicable
to the claim of any claimant who receives a permanent partial disability award for occupational
pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by either a single incident of trauma or
by exposure to hazardous noise in the course of and resulting from employment, the degree of
permanent partial disability, if any, shall be determined in accordance with the provisions of this
section and awards made in accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural hearing loss shall be computed
in the following manner:
(1) The measured decibel loss of hearing due to injury at the sound frequencies of five
hundred, one thousand, two thousand and three thousand hertz shall be determined for the injured
ear and the total shall be divided by four to ascertain the average decibel loss;
(2) The percent of monaural hearing impairment for the injured ear shall be calculated by
multiplying by one and six-tenths percent the difference by which the aforementioned average
decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent
hearing impairment, which maximum is reached at ninety decibels; and
(3) The percent of monaural hearing impairment obtained shall be multiplied by twenty-two and one-half to ascertain the degree of permanent partial disability.
(c) The percent of permanent partial disability for a binaural hearing loss shall be computed
in the following manner:
(1) The measured decibel loss of hearing due to injury at the sound frequencies of five
hundred, one thousand, two thousand and three thousand hertz is determined for each ear and the
total for each ear shall be divided by four to ascertain the average decibel loss for each ear;
(2) The percent of hearing impairment for each ear is calculated by multiplying by one and
six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-
seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which
maximum is reached at ninety decibels;
(3) The percent of binaural hearing impairment shall be calculated by multiplying the smaller
percentage (better ear) by five, adding this figure to the larger percentage (poorer ear) and dividing
the sum by six; and
(4) The percent of binaural hearing impairment obtained shall be multiplied by fifty-five to
ascertain the degree of permanent partial disability.
(d) No permanent partial disability benefits shall be granted for tinnitus, psychogenic hearing
loss, recruitment or hearing loss above three thousand hertz.
(e) An additional amount of permanent partial disability shall be granted for impairment of
speech discrimination, if any, to determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added together and the result divided by two
to calculate the average percentage of speech discrimination, and the permanent partial disability
shall be ascertained by reference to the percentage of permanent partial disability in the table below
on the line with the percentage of speech discrimination obtained. To determine the additional
amount for monaural impairment, the permanent partial disability shall be ascertained by reference
to the percentage of permanent partial disability in the table below on the line with the percentage
of speech discrimination in the injured ear.
TABLE
% Of Speech Discrimination% of Permanent Partial Disability
90% . . . and up to and including........100%0%
80% . . . and up to but not including.....90%1%
70% . . . and up to but not including.....80%3%
60% . . . and up to but not including.....70%4%
0% . . . and up to but not including.....60%5%
(f) No temporary total disability benefits shall be granted for noise-induced hearing loss.
(g) An application for benefits alleging a noise-induced hearing loss shall set forth the name
of the employer or employers and the time worked for each. The commission shall allocate to and
divide any charges resulting from the claim among the employers with whom the claimant sustained
exposure to hazardous noise for as much as sixty days during the period of three years immediately
preceding the date of last exposure. The allocation is based upon the time of exposure with each
employer. In determining the allocation, the commission shall consider all the time of employment
by each employer during which the claimant was exposed and not just the time within the three-year
period under the same allocation as is applied in occupational pneumoconiosis cases.
(h) The commission shall provide, consistent with current practice, for prompt referral the
claims for evaluation, for all medical reimbursement and for prompt authorization of hearing
enhancement devices.
(i) The provisions of this section and the amendments to section six of this article insofar as
applicable to permanent partial disabilities for hearing loss are operative as to any claim filed after
thirty days from the effective date of this section.
(j) Effective upon termination of the commission, the administrative duties governing hearing
loss claims shall transfer to the Insurance Commissioner.
§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 commission 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 commission and their employers; that the commission 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 commission, 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, a claimant irrevocably agrees by the filing of his or her
application for benefits that any physician may release to and orally discuss with the claimant's
employer, or its representative, or with a representative of the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, from time to
time, 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 or her 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 commission, the employer
or to the employer's representative. Whenever a copy of any medical report is obtained by the employer or its representative and the physician has not also forwarded a copy of the medical report
to the commission, successor to the commission, other private carrier or self-insured employer,
whichever is applicable, the employer shall forward a copy of the medical report to the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
within ten days from the date the employer received the medical report from the 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;
suspension of benefits.
(a) The Legislature hereby finds and declares that injured claimants should receive the type
of treatment needed as promptly as possible; that overpayments of 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 commission 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 commission, in consultation with 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 established for the injury involved shall be reviewed by the
commission. If satisfied, after reviewing the medical evidence, that the claimant would not benefit
by an independent medical evaluation, the commission shall mark the claim file accordingly and
shall diary the claim file as to the next date for required review which shall not exceed sixty days.
If the commission concludes that the claimant might benefit by an independent medical evaluation,
the commission 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, the 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 govern and control:
(1) If the authorized treating physician recommends a permanent partial disability award of
fifteen percent or less, the commission shall enter an award of permanent partial disability benefits
based upon the recommendation and all other available information. The claimant's entitlement to
temporary total disability benefits ceases upon the entry of the 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 ceases upon the receipt by the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
of the medical report. The commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, shall refer the claimant to a physician or physicians of
the commission's its 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 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.
The amount of benefits paid prior to the receipt of the independent evaluation report shall be
considered and determined to be payment of the permanent disability award granted, if any. In the
event that benefits actually paid exceed the amount granted by the permanent partial disability award,
the claimant is entitled to no further benefits by the award and the excess paid shall be an
overpayment. For all awards made or nonawarded partial benefits paid the commission, successor
to the commission, other private carrier or self-insured employer, whichever is applicable, may only
recover the amount of overpaid benefits or expenses by withholding, in whole or in part, future
disability benefits payable to the individual in the same or other claims and credit the amount against the overpayment until it is repaid in full.
(d) When the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, 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 commission, successor to the commission, other private carrier or self-insured employer,
whichever is applicable, shall refer the claimant to a physician or physicians of the commission'sits
selection for examination and evaluation. If the physician or physicians selected recommend
continued, additional or different treatment, the recommendation shall be relayed to the claimant and
the claimant's treating physician and the recommended treatment may be authorized by the
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable.
(e) Notwithstanding any provision in subsection (c) of this section, the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
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 commission conclude that the claimant has
reached his or her maximum degree of improvement;
(2) When the authorized treating physician advises the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, 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;
(3) When other evidence submitted to the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, justifies a finding that the claimant
has reached his or her maximum degree of improvement; or
(4) When other evidence submitted or otherwise obtained justifies a finding that the claimant
has engaged or is engaging in abuse, including, but not limited to, physical activities inconsistent
with his or her compensable workers' compensation injury.
In all cases, a finding by the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, that the claimant has reached his or her maximum
degree of improvement terminates the claimant's entitlement to temporary total disability benefits
regardless of whether the claimant has been released to return to work. 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 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 commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, or until the claimant returns to work. The amount of
benefits shall be considered and determined to be payment of the permanent disability award granted,
if any. In the event that benefits actually paid exceed the amount granted under the permanent
disability award, the claimant is entitled to no further benefits by the order.
(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 continues 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 commission under other provisions of this chapter), the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, shall refer the
claimant to a physician or physicians of the commission's 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 are fully applicable: Provided, That the requirement of mandatory examinations
and evaluations pursuant to the provisions of this subsection 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 commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, 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.
(i) The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may suspend benefits being paid to a claimant if the claimant
refuses, without good cause, to undergo the examinations or needed treatments provided for in this
section until the claimant submits to the examination or needed treatments. The executive director
shall propose rules for approval by the commission to implement the provisions of this subsection.
§23-4-7b. Trial return to work.
(a) The Legislature hereby finds and declares that it is in the interest of employees, employers
and the commission that injured employees be encouraged to return to work as quickly as possible
after an injury and that appropriate protections be afforded to injured employees who return to work
on a trial basis.
(b) Notwithstanding any other provisions of this chapter to the contrary, the injured employee
shall not have his or her eligibility to receive temporary total disability benefits terminated when he or she returns to work on a trial basis as set forth in this section. An employee is eligible to return
to work on a trial basis when he or she is released to work on a trial basis by the treating physician.
(c) When an injured employee returns to work on a trial basis, the employer shall provide a
trial return-to-work notification to the commission. Upon receipt of the notification, the commission
shall note the date of the first day of work pursuant to the trial return and shall continue the
claimant's eligibility for temporary total disability benefits, but shall temporarily suspend the
payment of temporary total disability benefits during the period actually worked by the injured
employee. The claim shall be closed on a temporary total disability basis either when the injured
employee or the authorized treating physician notifies the commission, successor to the commission,
other private carrier or self-insured employer, whichever is applicable, that the injured employee is
able to perform his or her job or automatically at the end of a period of three months from the date
of the first day of work unless the employee notifies the commission, successor to the commission,
other private carrier or self-insured employer, whichever is applicable, that he or she is unable to
perform the duties of the job, whichever is occurs first. If the injured employee is unable to continue
working due to the compensable injury for a three-month period, the injured employee shall notify
the commissioner provide notice and temporary total disability benefits shall be reinstated
immediately and he or she shall be referred for a rehabilitation evaluation as provided in section nine
of this article. No provision of this section shall be construed to prohibit the commission, successor
to the commission, other private carrier or self-insured employer, whichever is applicable, from
referring the injured employee for any permanent disability evaluation required or permitted by any
other provision of this article.
(d) Nothing in this section shall prevent the employee from returning to work without a trial
return-to-work period.
(e) Nothing in this section shall be construed to require an injured employee to return to work
on a trial basis.
(f) The provisions of this section shall be terminated and be of no further force and effect on the first day of July, two thousand seven.
§23-4-8. Physical examination of claimant.
The commission, successor to the commission, other private carrier or self-insured employer,
whichever is applicable, may, after due notice to the employer and claimant, whenever in the
commission's its opinion it is necessary, order a claimant of compensation for a personal injury other
than occupational pneumoconiosis to appear for examination before a medical examiner or
examiners selected by the commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable; and the claimant and employer, respectively, each have
the right to select a physician of the claimant's or the employer's own choosing and at the claimant's
or the employer's own expense to participate in the examination. All examinations 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. The claimant and employer shall,
respectively, be furnished with a copy of the report of examination made by the medical examiner
or examiners selected by the commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable. The respective physicians selected by the claimant and
employer have the right to concur in any report made by the medical examiner or examiners selected
by the commission, or each may file with the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, a separate report, which separate report
shall be considered by the commission in passing upon the claim. If the compensation claimed is
for occupational pneumoconiosis, the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, may, after due notice to the employer, and
whenever in the commission's opinion it is necessary, order a claimant to appear for examination
before the occupational pneumoconiosis board provided for in section eight-a of this article. In any
case the claimant is entitled to reimbursement for loss of wages, and to reasonable traveling and
other expenses necessarily incurred by him or her in obeying the order.
Where the claimant is required to undergo a medical examination or examinations by a
physician or physicians selected by the employer, as aforesaid or in connection with any claim which
is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable traveling
and other expenses in connection with the examination or examinations, not to exceed the expenses
paid when a claimant is examined by a physician or physicians selected by the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable.
§23-4-8a. Occupational pneumoconiosis board; composition; term of office; duties; quorum;
remuneration.
The occupational pneumoconiosis board shall consist of five licensed physicians who shall
be appointed by the executive director. Effective upon termination of the commission, the
physicians shall be appointed by the Insurance Commissioner: Provided, That those physicians
serving as of the termination of the commission shall continue to serve until replaced. No person
shall be appointed as a member of the board, or as a consultant thereto, who has not by special study
or experience, or both, acquired special knowledge of pulmonary diseases. All members of the
occupational pneumoconiosis board shall be physicians of good professional standing admitted to
practice medicine and surgery in this state. Two members shall be roentgenologists. One member
of the board shall be designated annually as chairman by the executive director. The term of office
of each member of the board shall be six years. The five members of the existing board in office on
the effective date of this section shall continue to serve until their terms expire and until their
successors have been appointed and have qualified. Any member of the board may be appointed to
any number of terms. The function of the board is to determine all medical questions relating to
cases of compensation for occupational pneumoconiosis under the direction and supervision of the
executive director and, effective upon termination of the commission, the Insurance Commissioner.
Any three members of the board constitute a quorum for the transaction of its business if at least one
of the members present is a roentgenologist. The executive director and, effective upon termination
of the commission, the Insurance Commissioner, shall, from time to time, fix the compensation to be paid each member of the board. Members are also entitled to reasonable and necessary traveling
and other expenses incurred while actually engaged in the performance of their duties. In fixing the
compensation of board members, the executive director or the Insurance Commissioner shall take
into consideration the number of claimants a member of the board actually examines, the actual time
spent by members in discharging their duties and the recommendation of the board of managers and
governor as to reasonable reimbursement per unit of time expended based on comparative data for
physicians within the state in the same medical specialties.
§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.
The occupational pneumoconiosis board, upon reference to it by the commission an
appropriate party of a case of occupational pneumoconiosis, shall notify the employee, or in case he
or she is dead, the claimant, and the employer, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, to appear before the board at a time and place stated
in the notice. If the employee is living, he or she shall appear before the board at the time and place
specified and submit to the examination, including clinical and X-ray examinations, required by the
board. If a physician licensed to practice medicine in the state makes an affidavit that the employee
is physically unable to appear at the time and place designated by the board, the board shall, on
notice to the proper parties, change the place and time as may reasonably facilitate the hearing or
examination of the employee or may appoint a qualified specialist in the field of respiratory disease
to examine the claimant on behalf of the board. The employee, or in case he or she is dead, the
claimant, and employer shall also produce as evidence to the board all reports of medical and X-ray
examinations which may be in their respective possession or control, showing the past or present
condition of the employee. If the employee is dead, the notice of the board shall further require that
the claimant produce necessary consents and permits so that an autopsy may be performed, if the
board so directs. When in the opinion of the board an autopsy is considered necessary accurately and
scientifically to ascertain and determine the cause of death, the autopsy examination shall be ordered
by the board, which shall designate a duly licensed physician, a pathologist or any other specialists determined necessary by the board, to make the examination and tests to determine the cause of
death and certify his or her or their written findings, in triplicate, to the board. The findings shall be
public records. In the event that a claimant for compensation for the death refuses to consent and
permit the autopsy to be made, all rights for compensation are forfeited.
The employee, or if he or she be dead, the claimant, and the employer, shall be entitled to be present
at all examinations conducted by the board and to be represented by attorneys and physicians.
§23-4-8c. Occupational pneumoconiosis board; reports and distribution thereof;
presumption; findings required of board; objection to findings;
procedure thereon; limitations on refilings; consolidation of claims.
(a) The occupational pneumoconiosis board, as soon as practicable, after it has completed
its investigation, shall make its written report, to the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, of its findings and conclusions on
every medical question in controversy and the commission shall send one copy of the report to the
employee or claimant and one copy to the employer. The board shall also return to and file with the
commission all the evidence as well as all statements under oath, if any, of the persons who appeared
before it on behalf of the employee or claimant, or employer, and also all medical reports and X-ray
examinations produced by or on behalf of the employee or claimant, or employer.
(b) If it can be shown that the claimant or deceased employee has been exposed to the hazard
of inhaling minute particles of dust in the course of and resulting from his or her employment for a
period of ten years during the fifteen years immediately preceding the date of his or her last exposure
to such hazard and that the claimant or deceased employee has sustained a chronic respiratory
disability, it shall be presumed that the claimant is suffering or the deceased employee was suffering
at the time of his or her death from occupational pneumoconiosis which arose out of and in the
course of his or her employment. This presumption is not conclusive.
(c) The findings and conclusions of the board shall set forth, among other things, the
following:
(1) Whether or not the claimant or the deceased employee has contracted occupational
pneumoconiosis and, if so, the percentage of permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was sufficient to have caused the
claimant's or deceased employee's occupational pneumoconiosis or to have perceptibly aggravated
an existing occupational pneumoconiosis or other occupational disease; and
(3) What, if any, physician appeared before the board on behalf of the claimant or employer
and what, if any, medical evidence was produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of the findings and conclusions of the
board, the party shall file with the commission or, on or after the first day of July, one thousand nine
hundred ninety-one, with the office of judges, within thirty days from receipt of the copy to that
party, unless for good cause shown the commission or chief administrative law judge extends the
time, the party's objections to the findings and conclusions of the board in writing, specifying the
particular statements of the board's findings and conclusions to which such party objects. The filing
of an objection within the time specified is a condition of the right to litigate the findings and
therefore jurisdictional. After the time has expired for the filing of objections to the findings and
conclusions of the board, the commission or administrative law judge shall proceed to act as
provided in this chapter. If after the time has expired for the filing of objections to the findings and
conclusions of the board no objections have been filed, the report of a majority of the board of its
findings and conclusions on any medical question shall be taken to be plenary and conclusive
evidence of the findings and conclusions stated in the report. If objection has been filed to the
findings and conclusions of the board, notice of the objection shall be given to the board, and the
members of the board joining in the findings and conclusions shall appear at the time fixed by the
commission or office of judges for the hearing to submit to examination and cross-examination in
respect to the findings and conclusions. At the hearing, evidence to support or controvert the
findings and conclusions of the board shall be limited to examination and cross-examination of the
members of the board and to the taking of testimony of other qualified physicians and roentgenologists.
(e) In the event that a claimant receives a final decision that he or she has no evidence of
occupational pneumoconiosis, the claimant is barred for a period of three years from the date of the
occupational pneumoconiosis board's decision or until his or her employment with the employer who
employed the claimant at the time designated as the claimant's last date of exposure in the denied
claim has terminated, whichever is sooner, from filing a new claim or pursuing a previously filed,
but unruled upon, claim for occupational pneumoconiosis or requesting a modification of any prior
ruling finding him or her not to be suffering from occupational pneumoconiosis. For the purposes
of this subsection, a claimant's employment shall be considered to be terminated if, for any reason,
he or she has not worked for that employer for a period in excess of ninety days. Any previously
filed, but unruled upon, claim shall be consolidated with the claim in which the board's decision is
made and shall be denied together with the decided claim. The provisions of this subsection shall
not be applied in any claim where doing so would, in and of itself, later cause a claimant's claim to
be forever barred by the provisions of section fifteen of this article.
(f) Effective upon termination of the commission, the Insurance Commissioner shall assume
all administrative powers and responsibilities necessary to administer sections eight-a, eight-b and
eight-c of this article.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the workers' compensation program to
assist employees to return to suitable gainful employment after an injury. In order to encourage
workers to return to employment and to encourage and assist employers in providing suitable
employment to injured employees, it is a priority of the commission, successor to the commission,
other private carrier or self-insured employer, whichever is applicable, to achieve early identification
of individuals likely to need rehabilitation services and to assess the rehabilitation needs of these
injured employees. It is the goal of rehabilitation to return injured employees to employment which
is comparable in work and pay to that which the individual performed prior to the injury. If a return to comparable work is not possible, the goal of rehabilitation is to return the individual to alternative
suitable employment, using all possible alternatives of job modification, restructuring, reassignment
and training, so that the individual will return to productivity with his or her employer or, if
necessary, with another employer. The Legislature further finds that it is the shared responsibility
of the employer, the employee, the physician and the commission to cooperate in the development
of a rehabilitation process designed to promote reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent disability, or has sustained an
injury likely to result in temporary disability as determined by the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
shall at the earliest possible time determine whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitation services and if the commission it is
determines determined that the employee can be physically and vocationally rehabilitated and
returned to remunerative employment by the provision of rehabilitation services including, but not
limited to, vocational or on-the-job training, counseling, assistance in obtaining appropriate
temporary or permanent work site, work duties or work hours modification, by the provision of
crutches, artificial limbs or other approved mechanical appliances, or medicines, medical, surgical,
dental or hospital treatment or other services which the commission, successor to the commission,
other private carrier or self-insured employer, whichever is applicable, in its sole discretion
determines will directly assist the employee's return to employment, the commission, successor to
the commission, other private carrier or self-insured employer, whichever is applicable, shall
immediately develop a rehabilitation plan for the employee and, after due notice to the employer,
expend an amount necessary for that purpose: Provided, That the expenditure for vocational
rehabilitation shall not exceed twenty thousand dollars for any one injured employee: Provided,
however, That no payment shall be made for such vocational rehabilitation purposes as provided in
this section unless authorized by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, prior to the rendering of the physical or vocational
rehabilitation, except that payments shall be made for reasonable medical expenses without prior
authorization if sufficient evidence exists which would relate the treatment to the injury and the
attending physician or physicians have requested authorization prior to the rendering of the
treatment: Provided further, That payment for physical rehabilitation, including the purchase of
prosthetic devices and other equipment and training in use of the devices and equipment, are
considered expenses within the meaning of section three of this article and are subject to the
provisions of sections three, three-b and three-c of this article. The provision of any rehabilitation
services may be pursuant to a rehabilitation plan to be developed and monitored by a rehabilitation
professional for each injured employee or by such other provider as determined by the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable.
Notwithstanding any other provision of this section to the contrary, the commission may determine
under rules promulgated by the board of managers that a rehabilitation plan or any component
thereof is not appropriate for an injured employee.
(c) In every case in which the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, orders physical or vocational rehabilitation of a
claimant as provided in this section, the claimant shall, during the time he or she is receiving any
vocational rehabilitation or rehabilitative treatment that renders him or her totally disabled during
the period of rehabilitation, be compensated on a temporary total disability basis for that period.
(d) In every case in which the claimant returns to gainful employment as part of a
rehabilitation plan, and the employee's average weekly wage earnings are less than the average
weekly wage earnings earned by the injured employee at the time of the injury, he or she shall
receive temporary partial rehabilitation benefits calculated as follows: The temporary partial
rehabilitation benefit shall be seventy percent of the difference between the average weekly wage
earnings earned at the time of the injury and the average weekly wage earnings earned at the new
employment, both to be calculated as provided in sections six, six-d and fourteen of this article as the calculation is performed for temporary total disability benefits, subject to the following
limitations: In no event are the benefits subject to the minimum benefit amounts required by the
provisions of subdivision (b), section six of this article, nor may the benefits exceed the temporary
total disability benefits to which the injured employee would be entitled pursuant to sections six, six-
d and fourteen of this article during any period of temporary total disability resulting from the injury
in the claim: Provided, That no temporary total disability benefits shall be paid for any period for
which temporary partial rehabilitation benefits are paid: Provided, however, That the aggregate
award of temporary total rehabilitation or temporary partial rehabilitation benefits for a single injury
for which an award of temporary total rehabilitation or temporary partial rehabilitation benefits is
made on or after the effective date of the amendment and reenactment of this section in the year two
thousand three shall be for a period not exceeding fifty-two weeks unless the payment of temporary
total rehabilitation disability benefits is in conjunction with an approved vocational rehabilitation
plan for retraining, in which event the payment period of temporary total rehabilitation disability
benefits may be extended for a period not to exceed a total of one hundred four weeks. The amount
of temporary partial rehabilitation benefits payable under this subsection shall be reviewed every
ninety days to determine whether the injured employee's average weekly wage in the new
employment has changed and, if the change has occurred, the amount of benefits payable under this
subsection shall be adjusted prospectively. Temporary partial rehabilitation benefits shall only be
payable when the injured employee is receiving vocational rehabilitation services in accordance with
a rehabilitation plan developed under this section and no payment of temporary partial rehabilitation
benefits shall be made after the claimant has received the vocational training provided under the
rehabilitation plan.
(e) The executive director, in consultation with the board of managers, shall propose for
promulgation rules for the purpose of developing a comprehensive rehabilitation program which will
assist injured workers to return to suitable gainful employment after an injury in a manner consistent
with the provisions and findings of this section. The rules shall provide definitions for rehabilitation facilities and rehabilitation services pursuant to this section. Notwithstanding any other provision
of this chapter to the contrary, and in addition to the provisions of section three of this article
authorizing employers to participate in a managed health care plan, including a managed health care
plan that provide provides physical and vocational rehabilitation services, an employer may contract
directly with one or more providers of vocational rehabilitation services to be the employer's
preferred provider of vocational rehabilitation services for its employees who receive injuries
compensable under the provisions of this chapter and the rules promulgated under this section may
require those employees to use the preferred providers.
§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 the date of the injury until the 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 are no dependents, the disbursements shall be limited to the expense provided for
in sections three and four of this article;
(b) If there are dependents as defined in subdivision (d) of this section, the dependents shall
be paid for as long as their dependency continues in the same amount that 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 the widow or widower, and
any child or children dependent upon the decedent until each child reaches eighteen years of age or
where the 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 the child reaches the age of twenty-
five years, or if an invalid child, to continue as long as the child remains an invalid. All persons are
jointly entitled to the amount of benefits payable as a result of employee's death;
(2) A wholly dependent father or mother until death; and
(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 the
portion of the period of six years after the death, determined by the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, but no partially
dependent person shall receive compensation payments as a result of the death of more than one
employee.
Compensation under this subdivision and subdivision (b) of this section shall, except as may
be specifically provided to the contrary in those subdivisions, cease upon the death of the dependent,
and the right to the compensation shall not vest in his or her estate.
(d) "Dependent", as used in this chapter, means a widow, widower, child under eighteen years
of age, or under twenty-five years of age when a full-time student as provided in this section, invalid
child or posthumous child, 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, stepchild under eighteen years of
age, or under twenty-five years of age when a full-time student as provided in this section, 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 in this section, 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; and
(e) If a person receiving permanent total disability benefits dies from a cause other than a
disabling injury leaving any dependents as defined in subdivision (d) of this section, an award shall
be made to the 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 and be paid either as a lump sum or in periodic payments, at the option of the dependent or dependents.
§23-4-11. To whom death benefits paid.
The benefits, in case of death, shall be paid to one or more dependents of the decedent, or to
any other persons, for the benefit of all of the dependents, as may be determined by the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
who may apportion the benefits among the dependents in the manner as they consider just and
equitable. Payment to a dependent subsequent in right may be made if the commission considers
proper and it operates to discharge all other claims for the benefits.
§23-4-12. Application of benefits.
The dependent or person to whom benefits are paid shall apply the benefits to the use of the
several beneficiaries of the benefits according to their respective claims upon the decedent for
support, in compliance with the finding and direction of the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable.
§23-4-14. Computation of benefits.
(a) The average weekly wage earnings, wherever earned, of the injured person at the date of
injury and the average weekly wage in West Virginia as determined by the commission, and,
effective the first day of January, two thousand six, the Insurance Commissioner, in effect at the date
of injury, shall be taken as the basis upon which to compute the benefits.
(1) In cases involving occupational pneumoconiosis or other occupational diseases, the "date
of injury" is the date of the last exposure to the hazards of occupational pneumoconiosis or other
occupational diseases.
(2) In computing benefits payable on account of occupational pneumoconiosis, the
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, shall deduct the amount of all prior workers' compensation benefits paid to the same
claimant on account of silicosis, but a prior silicosis award shall not, in any event, preclude an award
for occupational pneumoconiosis otherwise payable under this article.
(b)(1) Until the first day of July, one thousand nine hundred ninety-four, the expression
"average weekly wage earnings, wherever earned, of the injured person, at the date of injury", within
the meaning of this chapter, shall be computed based upon the daily rate of pay at the time of the
injury or upon the average pay received during the two months, six months or twelve months
immediately preceding the date of the injury, whichever is most favorable to the injured employee,
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.
(2) On and after the first day of July, one thousand nine hundred ninety-four, the expression
"average weekly wage earnings, wherever earned, of the injured person, at the date of injury", within
the meaning of this chapter, shall be computed based upon the daily rate of pay at the time of the
injury or upon the weekly average derived from the best quarter of wages out of the preceding four
quarters of wages as reported to the commission pursuant to subsection (b), section two, article two
of this chapter, whichever is most favorable to the injured employee, 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.
(c) The expression "average weekly wage in West Virginia", within the meaning of this
chapter, is the average weekly wage in West Virginia as determined by the commissioner of the
bureau of employment programs in accordance with the provisions of sections ten and eleven, article
six, chapter twenty-one-a of this code and other applicable provisions of said chapter.
(d) In any claim for injuries, including occupational pneumoconiosis and other occupational
diseases, occurring on or after the first day of July, one thousand nine hundred seventy-one, any
award for temporary total, permanent partial or permanent total disability benefits or for dependent
benefits shall be paid at the weekly rates or in the monthly amount in the case of dependent benefits
applicable to the claimant in effect on the date of the injury. In no event shall an award for
permanent total disability be subject to annual adjustments resulting from changes in the average
weekly wage in West Virginia.
§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
for compensation shall be made on the form or forms prescribed by the commission and, effective
upon termination of the commission, the Insurance Commissioner, and filed with the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
within six months from and after the injury or death, as the case may be, and unless filed within the
six months period, the right to compensation under this chapter is 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 also be filed with the commission within six months from and after
the death. In case the employee is mentally or physically incapable of filing the 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 of this subsection, the application for compensation shall be made on the form or forms
prescribed by the commission and effective upon termination of the commission, the Insurance
Commissioner, and filed with the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, 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 a diagnosed impairment
due to occupational pneumoconiosis was made known to the employee by a physician and unless
filed within the three-year period, the right to compensation under this chapter is 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 by the dependent of the employee within one year
from and after the 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 of this section, the application for compensation shall be made
on the form or forms prescribed by the commission and, effective upon termination of the
commission, the Insurance Commissioner, and filed with the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, 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
last occurs, and unless filed within the 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
therefore jurisdictional, or, in case of death, the application shall be filed as aforesaid by the
dependent of the employee within one year from and after the employee's death, and such time
limitation is a condition of the right and hence jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
Notwithstanding any other provisions of this chapter, nonresident alien beneficiaries are
entitled to the same benefits as citizens of the United States: Provided, That the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
in its discretion may make, and the beneficiary shall accept, commutation of the benefits into a lump
sum settlement and payment. Nonresident alien beneficiaries within the meaning of this section
means persons not citizens of the United States residing outside of the territorial limits of the United
States at the time of the injury with respect to which benefits are awarded.
§23-4-15b. Determination of nonmedical questions by commission; claims for occupational
pneumoconiosis; hearing.
(a) If a claim for occupational pneumoconiosis benefits is 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 commission 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 to the hazard and whether the claimant was exposed to the hazard over a period of not less
than ten years during the fifteen years immediately preceding the date of his or her last exposure to
the hazard. If a claim for occupational pneumoconiosis benefits is filed by an employee within three
years from and after the employee's occupational pneumoconiosis was made known to the employee
by a physician, the commission shall determine whether the claimant filed his or her application
within that period and whether in the state of West Virginia the claimant was exposed to the hazard
over a continuous period of not less than two years during the ten years immediately preceding the
date of last exposure to the hazard and whether the claimant was exposed to the hazard over a period
of not less than ten years during the fifteen years immediately preceding the date of last exposure to
the hazard. If a claim for occupational pneumoconiosis benefits is filed by a dependent of a deceased
employee, the commission 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 the 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
to the hazard and whether the claimant was exposed to the hazard over a period of not less than ten
years during the fifteen years immediately preceding the date of his or her last exposure to the
hazard. The commission shall also determine other nonmedical facts that, in the commission's
opinion, are pertinent to a decision on the validity of the claim.
The commission shall enter an order with respect to nonmedical findings within ninety days
following receipt by the commission of both the claimant's application for occupational
pneumoconiosis benefits and the physician's report filed in connection with the claimant's application
and shall give each interested party notice in writing of these findings with respect to all the nonmedical facts. The findings and actions of the commission are final unless the employer,
employee, claimant or dependent, within thirty days after receipt of the notice, objects to the
findings, and unless an objection is filed within the thirty-day period, the findings are forever final,
the time limitation is a condition of the right to litigate the findings and therefor jurisdictional. Upon
receipt of an objection, the chief administrative law judge shall set a hearing as provided in section
nine, article five of this chapter. In the event of an objection to the findings by the employer, the
claim shall, notwithstanding the fact that one or more hearings may be held with respect to the
objection, mature for reference to the occupational pneumoconiosis board with like effect as if the
objection had not been filed. If the administrative law judge concludes after the protest hearings that
the claim should be dismissed, a final order of dismissal shall be entered. The final order is subject
to appeal in accordance with the provisions of sections ten and twelve, article five of this chapter.
If the administrative law judge concludes after the 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.
(b) The administrative duties required to be performed by the commission pursuant to section
fifteen-b of this article, and all applicable exempt legislative rules shall transfer from the commission
to the Insurance Commissioner effective upon termination of the commission.
§23-4-16. 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 commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, over each case is continuing and the
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, may, in accordance with the provisions of this section and after due notice to the
employer, make modifications or changes with respect to former findings or orders that are justified. 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 that date shall be determined by the following subdivisions of this subsection.
Any request that is made beyond that 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 request must be made within five
years of the closure. During that time period, only two requests may be filed.
(2) Except as stated below, in any claim in which an award of permanent disability was made,
any request must be made within five years of the date of the initial award. During that time period,
only two 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 commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, a new five-year period begins upon the date of the subsequent
award. With the advice of the health care advisory panel, the executive director and the board of
managers 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), section three of this article,
in any claim in which 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, no request for
additional medical or any type of rehabilitation benefits shall be granted nor shall any medical or any
type of rehabilitation benefits or any type of goods or supplies be paid for by the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
if they were provided without a prior request. For the exclusive purposes of this subdivision, 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 makes application for a further period of
temporary total disability, if the application is in writing and filed within the applicable time limit
stated above, the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall pass upon the request within thirty days of the receipt of the
request. If the decision is to grant the request, the order shall provide for the receipt of temporary
total disability benefits. In any case in which an injured employee makes application for a further
award of permanent partial disability benefits or for an award of permanent total disability benefits,
if the application is in writing and filed within the applicable time limit as stated above, the
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, shall pass upon the request within thirty days of its receipt and, if the commission
determines that the claimant may be entitled to an award, the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, shall refer the
claimant for further examinations that are necessary.
(c) If the application is based on a report of any medical examination made of the claimant
and submitted by the claimant to the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, 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 the examination. The reimbursement shall be made by the
commission, successor to the commission, other private carrier or self-insured employer, whichever
is applicable, to the claimant, in addition to all other benefits awarded, upon due proof of the amount
thereof being furnished the commission's by the claimant, but shall in no case exceed the sum fixed
pursuant to the applicable schedule of maximum reasonable fees established under the provisions
of section three of this article.
(d) The commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, has continuing power and jurisdiction over claims in which
permanent total disability awards have been made after the eighth day of April, one thousand nine
hundred ninety-three.
(1) The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, 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. At such times as the
commission may determine, the commission may require the claimant to provide documents and
other information to the commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, including, but not limited to, tax returns, financial records
and affidavits demonstrating level of income, recreational activities, work activities, medications
used and physicians or other medical or rehabilitation providers treating or prescribing medication
or other services for the claimant; require the claimant to appear under oath before the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable,
or its duly authorized representative and answer questions; and suspend or terminate any benefits of
a claimant who willfully fails to provide the information or appear as required: Provided, That the
commission shall develop, implement and complete a program as soon as reasonably possible that
requires each person receiving permanent total disability benefits on the effective date of the
amendment and reenactment of this section in the year two thousand three, and each person who is
awarded those benefits thereafter, to submit the tax returns and the affidavit described herein at least
once: Provided, however, That this requirement does not restrict the commission's authority to
require the information that may be required herein at such other times as the commission may
determine. The commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may reopen a claim for reevaluation when, in the commission's
its sole discretion, 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.
(2) Upon reopening a claim under this subsection, the commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, 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 any information to the commission as the employer may elect. In the event the claimant
retains his or her award following the reevaluation, the claimant's reasonable attorneys' fees incurred
in defending the award shall be paid by the workers' compensation commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable from the
workers' compensation fund. In addition, the workers' compensation commission, successor to the
commission, other private carrier or self-insured employer, whichever is applicable, shall reimburse
a prevailing claimant for his or her costs in obtaining one evaluation on each issue during the course
of the reevaluation with the reimbursement being made from the fund. The board of managers 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), section six of this article. The claimant may seek review of the commission's final order as
otherwise provided for in article five of this chapter for review of orders granting or denying
permanent disability awards.
(4) The commission shall establish by rule criteria for review, reopening and reevaluating a
claim under this subsection. The commission shall at least quarterly provide a report of the exercise
of its authority to continuously monitor permanent total disability awards under this section to the
joint committee on government and finance and the joint commission on economic development.
(e) A claimant may have only one active request for a permanent disability award pending
in a claim at any one time. Any new request that is made while another is pending shall be consolidated into the former request.
§23-4-16a. Interest on benefits.
Whenever any award of temporary total, permanent partial or permanent total disability
benefits or dependent benefits is made on or after the first day of July, one thousand nine hundred
seventy-one, and a protest is filed to the award or an appeal is taken from the award by an employer
only and not by the claimant or dependent and the award is not ultimately denied or reduced
following the protest or appeal, the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, shall add interest to the award at the simple rate
of six percent per annum from the date the award would have been payable had the protest or appeal
not been filed or taken, exclusive of any period for which a continuance was granted upon motion
of any party other than the protesting or appealing employer. Any interest payable shall be charged
to the account of the protesting or appealing employer to the extent that the benefits upon which such
interest is computed are charged to the account of the employer.
§23-4-17. Commutation of periodical benefits.
The commission, successor to the commission, other private carrier or self-insured employer,
whichever is applicable, under special circumstances and when it is considered advisable, may
commute periodical benefits to one or more lump-sum payments. Upon the application of any
claimant who has received an award of partial or total disability, who is not a citizen of the United
States and desires to reside permanently beyond the territorial limits of the United States, or upon
the application of an alien dependent of a deceased employee with respect of whose death award of
compensation has been made, the dependent residing in the territorial limits of the United States at
the time of the decedent's death, and desiring to reside permanently beyond the territorial limits of
the United States, the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may commute into one lump-sum payment the periodical
payments to which the claimant or dependent would be entitled, but at the rate of one-half the
amount that would be payable to a citizen of the United States under like circumstances. The lump-sum payment at the rate specified in this section discharges all liability with respect to the award, but
in no event shall the award be paid until the claimant or dependent has actually arrived and
domiciled himself or herself outside the territorial limits of the United States, except a sufficient
portion of the award to pay transportation and other necessary expenses.
§23-4-20. Postmortem examinations.
The commission, successor to the commission, other private carrier or self-insured employer,
whichever is applicable, may, after due notice to the employer and claimant, whenever it considers
it necessary, order an autopsy and may designate a duly licensed physician to make the postmortem
examination or examinations that are necessary to determine the cause of the deceased employee's
death. The physician shall file with the commission a written report of his or her findings. The
claimant and the employer, respectively, have the right to select a physician of his, her or its own
choosing and, at his or her or its own expense, to participate in the postmortem examination. The
respective physicians selected by the claimant and the employer have the right to concur in any report
made by the physician selected by the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, or each may file with the commission, successor
to the commission, other private carrier or self-insured employer, whichever is applicable, a separate
report. In any case, including silicosis cases, in which either the employer or a claimant requests that
an autopsy be performed, the autopsy shall be directed as provided in this section. In the event that
a claimant for compensation for the death refuses to consent and permit the autopsy to be made all
rights to compensation shall be forfeited.
§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.
(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 of this article or 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 claimant shall be evaluated only for the purposes of receiving a permanent partial disability
award premised solely upon the claimant's impairments. This subsection is not 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 may not produce additional evidence of permanent total disability before the
commission or the office of judges nor shall the claim be remanded for the production of the
evidence.
(b) The workers' compensation commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, has 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 commission as part of the initial claim filing or by
way of an application for modification or adjustment pursuant to section sixteen of this article. The
office of judges may consider a claim only after the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of disability benefits for wages
earned by claimant.
(a) After the 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 the benefits were awarded. This
section is not applicable to the receipt of medical benefits or the payment for medical benefits, the
receipt of permanent partial disability benefits, the receipt of benefits by partially or wholly
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 commission, successor
to the commission, other private carrier or self-insured employer, whichever is applicable, shall give
the claimant notice of the effect of this section upon a claimant's award if and when the 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 the total exceeds by more
than one hundred 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, the 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 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 4A. DISABLED WORKERS' RELIEF FUND.
§23-4A-1. Disabled workers' relief fund created.
(a) For the relief of persons who are receiving benefits pursuant to a permanent total
disability award in amounts less than thirty-three and one-third percent of the average weekly wage
for the state of West Virginia per month, and for the relief of widows who are receiving benefits on
account of the death of an employee in amounts less than thirty-three and one-third percent of the
average weekly wage in the state of West Virginia per month, and for the relief of children of
employees deceased before one thousand nine hundred sixty-seven, who are under the age of twenty-
three and who are full-time students, and for the relief of other persons who are receiving
dependents' benefits on account of the death of an employee in amounts less than the specific
monetary amounts set forth in section ten, article four of this chapter and in effect as of the first day
of July, one thousand nine hundred seventy-three, there is continued a separate fund, heretofore known as the "Disabled Workmen's Relief Fund", and which shall hereafter be known as the
"Disabled Workers' Relief Fund", which shall consist of any sums that are, from time to time, made
available to carry out the objects and purposes of this article. The fund shall be in the custody of the
state treasurer and disbursements from the fund shall be made upon requisition signed by the
executive director to those persons entitled to participate in the fund and in such amounts to each
participant that are provided in section three of this article.
(b) Effective upon termination of the commission, the "Disabled Workers' Relief Fund" shall
be administered by the successor to the commission and the administrative duties assigned to the
executive director shall be transferred to the chief executive officer of the successor to the
commission.
§23-4A-4. Mode of payment.
Payments to an individual entitled to participate in the disabled workers' relief fund may be
made from said fund by separate check or may be made from said fund and from the workers'
compensation fund and, effective upon termination of the commission, the old fund, by one check,
but each such check drawn on the two funds shall be so written as to show plainly the payments
made from each fund. No disbursements shall be made from the workers' compensation fund or the
old fund on account of any provisions of this article.
§23-4A-9. Transfer of authority to the Insurance Commissioner.
Effective upon termination of the commission, the authority to make the annual transfer as
required in section eight of this article shall transfer to the Insurance Commissioner.
ARTICLE 4B. COAL WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-9. Novation to the successor of the commission.
Upon the termination of the commission, all assets, obligations and liabilities resulting from
this article are transferred to the successor of the commission. The state treasurer and all other
departments, agencies and boards shall cooperate to ensure this novation occurs in a expedient and
orderly fashion. Thereafter, the company shall offer insurance to provide for the benefits required by this article until at least the thirtieth day of June, two thousand eight.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-5. Administration.
The Until the termination of the commission, the employers' excess liability fund shall be
administered by the executive director, who shall employ any employees that are necessary to
discharge his or her duties and responsibilities under this article. All payments of salaries and
expenses of the employees and all expenses peculiar to the administration of this article shall be
made by the state treasurer from the employers' excess liability fund upon requisitions signed by the
executive director.
§23-4C-6. Novation to the successor of the commission.
Upon the termination of the commission, all assets, obligations and liabilities resulting from
this article are transferred to the successor of the commission. Thereafter, the company shall offer
insurance to provide for the benefits required by this article until at least the thirtieth day of June,
two thousand eight. The state treasurer and all other departments, agencies and boards shall
cooperate to ensure this novation occurs in an expedient and orderly fashion.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of decision; procedures on claims;
objections and hearing.
(a) The workers' compensation commission, the successor to the commission, other private
insurance carriers and self-insured employers may hear and determine all questions within its their
jurisdiction. In matters arising under articles three and four of this chapter, the commission, the
successor to the commission, other private insurance carriers and self-insured employers shall
promptly review and investigate all claims. The parties to a claim shall file the information in
support of their respective positions as they consider proper. In addition, the commission, the
successor to the commission, other private insurance carriers and self-insured employers may
develop additional information that it considers to be necessary in the interests of fairness to the parties and in keeping with their fiduciary obligations owed to the fund. With regard to any issue
which is ready for a decision, the commission, the successor to the commission, other private
insurance carriers and self-insured employers shall explain the basis of its decisions.
(b) Except with regard to interlocutory matters and those matters set forth in subsection (d)
of this section, upon making any decision, upon making or refusing to make any award or upon
making any modification or change with respect to former findings or orders, as provided by section
sixteen, article four of this chapter, the commission, the successor to the commission, other private
insurance carriers and self-insured employers shall give notice, in writing, to the employer,
employee, claimant or dependant as the case may be, of its action. The notice shall state the time
allowed for filing an objection to the finding. The action of the commission, the successor to the
commission, other private insurance carriers and self-insured employers is final unless the employer,
employee, claimant or dependant shall, within thirty days after the receipt of the notice, object in
writing, to the finding. Unless an objection is filed within the thirty-day period, the finding or action
is final. This time limitation is a condition of the right to litigate the finding or action and hence
jurisdictional. Any objection shall be filed with the office of judges with a copy served upon the
commission, the successor to the commission, other private insurance carriers and self-insured
employers, whichever is applicable, and other parties in accordance with the procedures set forth in
sections eight and nine of this article. In all instances where a private carrier, self-insured employer
or a third-party administrator has made claims decisions as authorized in this chapter, they shall
provide claimants notice of all claims decisions as provided for by rules for self-administration
promulgated by the board of managers and shall be bound by each requirement imposed upon the
commission by this article.
(c) Where a finding or determination of the commission, the successor to the commission,
other private insurance carriers and self-insured employers, whichever is applicable, 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 commission or office of judges, then the claimant in addition to reasonable traveling and other
expenses shall be reimbursed for loss of wages incurred by the claimant in attending the hearing.
(d) The commission or self-insured employer the successor to the commission, other private
insurance carriers or and self-insured employers, whichever is applicable may amend, correct or set
aside any order or decision on any issue entered by it which, at the time of issuance or any time
thereafter, is discovered to be defective or clearly erroneous or the result of mistake, clerical error
or fraud, or otherwise not supported by the evidence. Jurisdiction to take this action continues until
the expiration of two years 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.
(e) All objections to orders of the commission, the successor to the commission, other private
insurance carriers or and self-insured employers, whichever is applicable shall be styled in the name
of the workers' compensation commission issuing entity. All appeals prosecuted from the office of
judges shall either be in the name of the workers' compensation commission or shall be against the
workers' compensation commission unless the parties to the appeal are limited to a claimant and a
self-insured employer issuing party. In all actions under this article, the workers' compensation
commission shall be the party in interest unless the parties to the appeal are limited to a claimant and
a self-insured employer.
§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 the
application discloses cause for a further adjustment, the commission shall, after due notice to the
employer, make the modifications, or changes with respect to former findings or orders in the claim
that are justified. Any party dissatisfied with any modification or change made by the commission,
the successor to the commission, other private insurance carriers and self-insured employers,
whichever is applicable, is, upon proper and timely objection, entitled to a hearing, as provided in section nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
If it appears to the commission, the successor to the commission, other private insurance
carriers and self-insured employers, whichever is applicable, that an application filed under section
two of this article fails to disclose a progression or aggravation in the claimant's condition, or some
other fact or facts which were not previously considered by the commission in its former findings
and which would entitle the claimant to greater benefits than the claimant has already received, the
commission, the successor to the commission, other private insurance carriers and self-insured
employers, whichever is applicable, shall, within a reasonable time, notify the claimant and the
employer that the application fails to establish a prima facie cause for reopening the claim. The
notice shall be in writing stating the reasons for denial and the time allowed for objection to the
decision of the commission. The claimant may, within thirty days after receipt of the notice, object
in writing to the finding. Unless the objection is filed within the thirty-day period, no objection shall
be allowed. This time limitation is a condition of the right to objection and hence jurisdictional.
Upon receipt of an objection, the office of judges shall afford the claimant an evidentiary hearing as
provided in section nine of this article.
§23-5-4. Application by employer for modification of award; objection to modification;
hearing.
In any case in which an employer makes application in writing for a modification of any
award previously made to an employee of the employer, the commission, the successor to the
commission, other private insurance carriers and self-insured employers, whichever is applicable,
shall make a decision upon the application. If the application discloses cause for a further
adjustment, the commission, the successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall, after due notice to the employee, make the
modifications or changes with respect to former findings or orders that are justified. Any party
dissatisfied with any modification or change made by the commission or by the denial of an application for modification is, upon proper and timely objection, entitled to a hearing as provided
in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any case it appears to the commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is applicable, that the application filed
pursuant to section four of this article fails to disclose some fact or facts which were not previously
considered by the commission in its former findings, and which would entitle the employer to any
modification of the previous award, the commission the successor to the commission, other private
insurance carriers and self-insured employers, whichever is applicable, shall, within sixty days from
the receipt of the application, notify the claimant and employer that the application fails to establish
a just cause for modification of the award. The notice shall be in writing stating the reasons for
denial and the time allowed for objection to the decision of the commission, the successor to the
commission, other private insurance carriers and self-insured employers, whichever is applicable.
The employer may, within thirty days after receipt of the notice, object in writing to the decision.
Unless the objection is filed within the thirty-day period, no objection shall be allowed. This time
limitation is a condition of the right to objection and hence jurisdictional. Upon receipt of the
objection, the office of judges shall afford the employer an evidentiary hearing as provided in section
nine of this article.
§23-5-7. Compromise and settlement.
With the exception of medical benefits for nonorthopedic occupational disease claims, the
claimant, the employer and the workers' compensation commission, the successor to the commission,
other private insurance carriers and self-insured employers, whichever is applicable, may negotiate
a final settlement of any and all issues in a claim wherever the claim is in the administrative or
appellate processes. The office of judges shall review the proposed agreement to determine if it is
fair and reasonable to the parties and shall ensure that each parties is fully aware of their effects of
the agreement including what each party is conceeding in exchange for the agreement. If the office of judges concludes that the agreement is not fair or is not reasonable or that one of the parties is not
fully informed, the agreement will not be approved. The decision on this question is not reviewable.
If the employer is not active in the claim, the commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is applicable, may negotiate a final
settlement of any and all issues in a claim except for medical benefits for nonorthopedic occupational
disease claims with the claimant and said settlement upon approval shall be made a part of the claim
record. The office of judges shall send written notice of the settlement to all parties and, where
appropriated, to the appeal board of the Supreme Court of Appeals. Except in cases of fraud, no
issue that is the subject of an approved settlement agreement may be reopened by any party,
including the commission, the successor to the commission, other private insurance carriers and self-
insured employers, whichever is applicable. Any settlement agreement may provide for a lump-sum
payment or a structured payment plan, or any combination thereof, or any other basis as the parties
may agree. If a self-insured employer later fails to make to agreed-upon payment, the commission
shall assume the obligation to make the payments and shall recover the amounts paid or to be paid
from the self-insurer employer and its serties or guarantors or both as provided in section five and
five-a, article two of this chapter.
Each settlement agreement shall provide the toll free number of the West Virginia State Bar
Association and shall provide the injured worker with five business days to revoke the executed
agreement. The Insurance Commissioner may void settlement agreements entered into by an
unrepresented injured worker which are determined to be unconscionable pursuant to criteria
established by rule of the commissioner.
The amendments to this section enacted during the regular session of the Legislature in the
year one thousand nine hundred ninety-nine shall apply to all settlement agreements executed after
the effective date.
§23-5-8. Designation of office of administrative law judges; powers of chief administrative
law judge.
(a) 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.
(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 workers' compensation board of
managers. The 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, 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 workers' compensation board of managers and shall not be removed except for cause
and then only after he or she has been presented in writing with a reason for his or her removal and
is given opportunity to respond and to present evidence. Upon transfer of the office of judges to the
Insurance Commissioner, the chief administrative law judge shall continue to serve as chief
administrative law judge until the thirty-first day of December, two thousand seven. Thereafter,
appointments of the chief administrative law judge shall be for terms of four years beginning the first
day of January, two thousand eight, and the chief administrative law judge may be removed only for
cause by the vote of four members of the Industrial Council. 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 is applicable to the chief administrative law judge.
(c) The chief administrative law judge shall employ administrative law judges and other
personnel that are necessary for the proper conduct of a system of administrative review of orders
issued by the workers' compensation commission which orders have been objected to by a party.
The 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 this code and rules of the classified
service pursuant to article six, chapter twenty-nine of this code. All 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 within the annual
budget of the workers' compensation commission and, upon termination of the commission, the
Insurance Commissioner.
(e) 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 workers' compensation
commission. The office of judges shall not have the power to initiate or to promulgate legislative
rules as that phrase is defined in article three, chapter twenty-
nine-
a of this code. Any rules adopted
pursuant to this section which are applicable to the provisions of this article are not subject to sections nine
through sixteen, inclusive, article three, chapter twenty-
nine-
a of this code. The office of judges shall
follow the remaining provisions of said chapter for giving notice to the public of its actions and the
holding of hearings or receiving of comments on the rules.
(f) The chief administrative law judge has the power 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 records and make reports that are necessary for disputed claims and exercise any
additional powers, including the delegation of powers to administrative law judges or hearing
examiners that are necessary for the proper conduct of a system of administrative review of disputed
claims. The chief administrative law judge shall make reports that are requested of him or her by
the workers' compensation board of managers.
(g) Effective upon termination of the commission, the office of judges and the board of
review shall be transferred to the Insurance Commissioner, which shall have the oversight and
administrative authority heretofore provided to the executive director and the board of managers.
§23-5-9. Hearings on objections to commission or self-insured employer decisions; mediation;
remand.
(a) Objections to a decision of the workers' compensation commission, the successor to the
commission, other private insurance carriers or and self-insured employers, whichever is applicable,
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 notify the commission, the successor to the
commission, other private insurance carriers or and self-insured employers, whichever is applicable,
and all other parties of the filing of the objection. The office of judges shall establish by rule
promulgated in accordance with the provisions of subsection (e), section eight of this article an
adjudicatory process that enables parties to present evidence in support of their positions and
provides an expeditious resolution of the objection. The employer, the claimant and the commission,
the successor to the commission, other private insurance carriers or and self-insured employers,
whichever is applicable, shall be notified of any hearing at least ten days in advance. The office of
judges shall review and amend, or modify, as necessary its procedural rules by the first day of July,
two thousand seven.
(b) The office of judges shall establish a program for mediation to be conducted in
accordance with the requirements of rule twenty-five of the West Virginia trial court rules. The
parties may agree that the result of the mediation is binding. A case may be referred to mediation
by the administrative law judge on his or her own motion, on motion of a party or by agreement of
the parties. Upon issuance of an order for mediation, the office of judges shall assign a mediator
from a list of qualified mediators maintained by the West Virginia state bar.
(c) The office of judges shall keep full and complete records of all proceedings concerning
a disputed claim. Subject to the rules of practice and procedure promulgated pursuant to section eight of this article, the record upon which the matter shall be decided shall include any evidence
submitted by a party to the office of judges, evidence taken at hearings conducted by the office of
judges and any documents in the commission's claim files which relate to the subject matter of the
objection. The record may include evidence or documents submitted in electronic form or other
appropriate medium in accordance with the rules of practice and procedure. The office of judges is
not bound by the usual common law or statutory rules of evidence.
(d) All hearings shall be conducted as determined by the chief administrative law judge
pursuant to the rules of practice and procedure promulgated pursuant to section eight of this article.
Upon consideration of the designated record, the chief administrative law judge or other authorized
adjudicator within the office of judges shall, based on the determination of the facts of the case and
applicable law, render a decision affirming, reversing or modifying the commission's action
protested. The decision shall contain findings of fact and conclusions of law and shall be mailed to
all parties.
(e) The rule authorized by subsection (a) of this section shall be promulgated on or before
the first day of October, two thousand three. Until the rule is promulgated, any rules previously
promulgated shall remain in full force and effect.
(f) The office of judges may remand a claim to the commission, the successor to the
commission, other private insurance carriers and self-insured employers, whichever is applicable,
for further development of the facts or administrative matters as, in the opinion of the administrative
law judge, may be necessary for a full and complete disposition of the case. The administrative law
judge shall establish a time within which the commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever is applicable, must report back to
the administrative law judge.
(g) The decision of the workers' compensation office of judges regarding any objections to
a decision of the workers' compensation commission, the successor to the commission, other private
insurance carriers or and self-insured employers, whichever is applicable, is final and benefits shall be paid or denied in accordance with the decision unless the decision is subsequently appealed and
reversed in accordance with the procedures set forth in this article.
§23-5-10. Appeal from administrative law judge decision to appeal board.
The employer, claimant, workers' compensation commission, the successor to the
commission, other private insurance carriers and self-insured employers, whichever is applicable,
may appeal to the appeal board created in section 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.
§23-5-11. Workers' compensation board of review generally.
(a) On the thirty-first day of January, two thousand four, the workers' compensation appeal
board heretofore established in this section is hereby abolished.
(b) There is hereby created the "workers' compensation board of review", which may also be
referred to as "the board of review" or "the board". Effective the first day of February, two thousand
four, the board of review shall exercise exclusive jurisdiction over all appeals from the workers'
compensation office judges including any and all appeals pending with the board of appeals on the
thirty-first day of January, two thousand four.
(c) The board shall consist of three members.
(d) The governor shall appoint, from names submitted by the "workers' compensation board
of review nominating committee", with the advice and consent of the Senate, three qualified
attorneys to serve as members of the board of review. If the governor does not select a nominee for
any vacant position from the names provided by the nominating committee, he shall notify the
nominating committee of that circumstance and the committee shall provide additional names for consideration by the governor. A member of the board of review may be removed by the governor
for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then
only after notice and opportunity to respond and present evidence. No more than two of the
members of the board may be of the same political party. The members of the board of review shall
be paid an annual salary of eighty-five thousand dollars. Members are entitled to be reimbursed for
actual and necessary travel expenses incurred in the discharge of official duties in a manner
consistent with the guidelines of the travel management office of the department of administration.
(e) The nominating committee shall consist of the following members: (1) The president of
the West Virginia state bar who will serve as the chairperson of the committee; (2) an active member
of the West Virginia state bar workers' compensation committee selected by the major trade
association representing employers in this state; (3) an active member of the West Virginia state bar
workers' compensation committee selected by the highest ranking officer of the major employee
organization representing workers in this state; (4) the dean of the West Virginia university school
of law; and (5) the chairman of the judicial investigation committee.
(f) The nominating committee is responsible for reviewing and evaluating candidates for
possible appointment to the board of review by the governor. In reviewing candidates, the
nominating committee may accept comments from and request information from any person or
source.
(g) Each member of the nominating committee may submit up to three names of qualified
candidates for each position on the board of review: Provided, That the member of the nominating
committee selected by the major trade organization representing employers of this state shall submit
at least one name of a qualified candidate for each position on the board who either is, or who
represents, small business employers of this state. After careful review of the candidates, the
committee shall select a minimum of one candidate for each position on the board.
(h) No later than the first day of November, two thousand three, the nominating committee
shall present to the governor its list of candidates for the initial board of review. The governor shall appoint the initial board no later than the thirty-first day of December, two thousand three: Provided,
That upon the thirty-first day of December, two thousand three, the deadline for filling all positions
of the board of review will be extended, as necessary, if, on or before that date, the governor has
timely requested additional names from the nominating committee. Thereafter, the nominating
committee shall meet at the request of the governor in order to make timely recommendations to the
governor for appointees to the board as the initial and subsequent terms expire or become vacant.
The recommendations shall be submitted no later than thirty days prior to the expiration of any term.
(i) Of the initial appointments, one member shall be appointed for a term ending the thirty-
first day of December, two thousand six; one member shall be appointed for a term ending the thirty-
first day of December, two thousand eight; and one member shall be appointed for a term ending the
thirty-first day of December, two thousand ten. Thereafter, the appointments shall be for six-year
terms.
(j) A member of the board of review must, at the time he or she takes office and thereafter
during his or her continuance in office, be a resident of this state, be a member in good standing of
the West Virginia state bar, have a minimum of ten years' experience as an attorney admitted to
practice law in this state prior to appointment and have a minimum of five years' experience in
preparing and presenting cases or hearing actions and making decisions on the basis of the record
of those hearings before administrative agencies, regulatory bodies or courts of record at the federal,
state or local level.
(k) No member of the board of review may hold any other office, or accept any appointment
or public trust, nor may he or she become a candidate for any elective public office or nomination
thereto. Violation of this subsection requires the member to vacate his or her office. No member
of the board of review may engage in the practice of law during his or her term of office.
(l) A vacancy occurring on the board other than by expiration of a term shall be filled in the
manner original appointments were made, for the unexpired portion of the term.
(m) The board shall designate one of its members in rotation to be chairman of the board for as long as the board may determine by order made and entered of record. In the absence of the
chairman, any other member designated by the members present shall act as chairman.
(n) The board of review shall meet as often as necessary to hold review hearings, at such
times and places as the chairman may determine. Two members shall be present in order to conduct
review hearings or other business. All decisions of the board shall be determined by a majority of
the members of the board.
(o) The board of review shall make general rules regarding the pleading, including the form
of the petition and any responsive pleadings, practice and procedure to be used by the board.
(p) The board of review may hire a clerk and other professional and clerical staff necessary
to carry out the requirements of this article. It is the duty of the clerk of the board of review to attend
in person, or by deputy, all the sessions of the board, to obey its orders and directions, to take care
of and preserve in an office, kept for the purpose, all records and papers of the board and to perform
other duties as prescribed by law or required of him or her by the board. All employees of the board
shall serve at the will and pleasure of the board. The board's employees are exempt from the salary
schedule or pay plan adopted by the division of personnel. All personnel of the board of review shall
be under the supervision of the chairman of the board of review.
(q) If deemed necessary by the board, the board may, through staffing or other resources,
procure assistance in review of medical portions of decisions.
(r) Upon the conclusion of any hearing, or prior thereto with concurrence of the parties, the
member shall promptly determine the matter and make an award in accordance with his or her
determination.
(s) The award shall become a part of the commission file. A copy of the award shall be sent
forthwith by mail to all parties in interest.
(t) The award is final when entered. The award shall contain a statement explaining the
rights of the parties to an appeal to the board of review and the applicable time limitations involved.
(u) The board shall submit a budget to the executive director for inclusion in the budget for the workers' compensation commission sufficient to adequately provide for the administrative and
other operating expenses of the board.
(v) The board shall report monthly to the board of managers on the status of all claims on
appeal.
(w) Effective upon termination of the commission, the board of review shall be transferred
to the Insurance Commissioner which shall have the oversight and administrative authority
heretofore provided to the executive director and the board of managers.
§23-5-12. 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 administrative law judge taken after a hearing held in accordance with the provisions
of section nine of this article, shall have the right to appeal to the board created in section eleven of
this article for a review of such action. The workers' compensation commission, the successor to the
commission, other private insurance carriers and self-insured employers, whichever is applicable,
shall likewise have the right to appeal to the board any final action taken by the administrative law
judge. The aggrieved party shall file a written notice of appeal with the office of judges directed to
the 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 appeal shall be allowed, the time limitation is
a condition of the right to appeal and hence jurisdictional. The office of judges shall notify the other
parties immediately upon the filing of a notice of appeal. The notice of appeal shall state the ground
for review and whether oral argument is requested. The office of judges shall forthwith make up a
transcript of the proceedings before the office of judges and certify and transmit it to the board. The
certificate shall incorporate a brief recital of the proceedings in the case and recite each order entered
and the date thereof.
(b) The board shall set a time and place for the hearing of arguments on each claim and shall
notify the interested parties thereof. The review by the board shall be based upon the record submitted to it and such oral argument as may be requested and received. The board may affirm,
reverse, modify or supplement the decision of the administrative law judge and make such
disposition of the case as it determines to be appropriate. 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) After a review of the case, the board shall issue a written decision to be filed with the
commission and a copy thereof sent by mail to the parties.
(1) All decisions, findings of fact and conclusions of law of the board of review shall be in
writing and state with specificity the laws and facts relied upon to sustain, reverse or modify the
administrative law judge's decision.
(2) Decisions of the board of review shall be made by a majority vote of the board of review.
(3) A decision of the board of review is binding upon the executive director and the
commission and the successor to the commission, other private insurance carriers and self-insured
employers, whichever is applicable, with respect to the parties involved in the particular appeal. The
executive director, the successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable, shall have the right to seek judicial review of a board of review
decision irrespective of whether or not he or she appeared or participated in the appeal to the board
of review.
(d) Instead of affirming, reversing or modifying the decision of the administrative law judge,
the board may, upon motion of 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 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 chief administrative law judge for the taking of further evidence, the administrative law judge
shall proceed to take new, additional or further evidence in accordance with any instruction given
by the board within thirty days after receipt of the order remanding the case. The chief
administrative law judge shall give to the interested parties at least ten days' written notice of the
supplemental hearing, unless the taking of evidence is postponed by agreement of parties, or by the
administrative law judge for good cause. After the completion of a supplemental hearing, the
administrative law judge shall, within sixty days, render his or her decision affirming, reversing or
modifying the former action of the administrative law judge. The decision shall be appealable to,
and proceeded with by the board of review in the same manner as other appeals. In addition, upon
a finding of good cause, the board may remand the case to the workers' compensation commission,
the successor to the commission, other private insurance carriers and self-insured employers,
whichever is applicable, for further development. Any decision made by the commission, the
successor to the commission, other private insurance carriers and self-insured employers, whichever
applicable, following 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.
(e) All appeals from the action of the 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.
(f) In all proceedings before the board, any party may be represented by counsel.
§23-5-15. Appeals from final decisions of board to supreme court of appeals; procedure;
costs.
(a) Review of any final decision of the board, including any order of remand, may be
prosecuted by either party or by the workers' compensation commission, the successor to the
commission, other private insurance carriers and self-insured employers, whichever is applicable,
to the supreme court of appeals within thirty days from the date of the final order by filing a petition
therefor with the court against the board and the adverse party or parties as respondents. Unless the
petition for review is filed within the thirty-day period, no appeal or review shall be allowed, such
time limitation is a condition of the right to such appeal or review and hence jurisdictional. The
clerk of the supreme court of appeals shall notify each of the respondents and the workers'
compensation commission, the successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, of the filing of such petition. The board shall,
within ten days after receipt of the 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. If review is granted to a nonresident
of this state, he or she shall be required to execute and file with the clerk before an 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. 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 is granted or the certified question is docketed for hearing,
the clerk shall notify the board and the parties litigant or their attorneys and the workers'
compensation commission, the successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, of that fact by mail. If a review is 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 review granted or certified question
docketed prior to thirty days before the beginning of the term, shall be placed upon the docket for
that term. The attorney general shall, without extra compensation, represent the board in such cases.
The court shall determine the matter brought before it and certify its decision to the board and to the
commission. The cost of the 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 is unsuccessful. If the claimant, or the commission (in case the latter is the
applicant for review) is unsuccessful, the costs, not including attorney's fees, shall be taxed against
the commission, payable out of 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.
(b) In reviewing a decision of the board of review, the supreme court of appeals shall
consider the record provided by the board and give deference to the board's findings, reasoning and
conclusions, in accordance with subsections (c) and (d) of this section.
(c) If the decision of the board represents an affirmation of a prior ruling by both the
commission and the office of judges that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the supreme court of appeals only if the
decision is in clear violation of constitutional or statutory provision, is clearly the result of erroneous
conclusions of law, or is based upon the board's material misstatement or mischaracterization of
particular components of the evidentiary record. The court may not conduct a de novo re-weighing
of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this
subsection, it shall state with specificity the basis for the reversal or modification and the manner in
which the decision of the board clearly violated constitutional or statutory provisions, resulted from
erroneous conclusions of law, or was based upon the board's material misstatement or
mischaracterization of particular components of the evidentiary record.
(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the office of judges that was entered on the same issue in the same claim, the decision
of the board may be reversed or modified by the supreme court of appeals only if the decision is in
clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions
of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are
resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to
sustain the decision. The court may not conduct a de novo re-weighing of the evidentiary record.
If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with
specificity the basis for the reversal or modification and the manner in which the decision of the
board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of
law, or was so clearly wrong based upon the evidentiary record that even when all inferences are
resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to
sustain the decision.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide communications protocol
data; distribution of net terminal income; remittance through
electronic transfer of funds; establishment of accounts and
nonpayment penalties; commission control of accounting for
net terminal income; settlement of accounts; manual reporting
and payment may be required; request for reports;
examination of accounts and records.
(a) The commission shall provide to manufacturers, or applicants applying for a
manufacturer's permit, the protocol documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the commission's central computer
for transmitting auditing program information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall be remitted to the commission
through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the timely transfer of moneys to the
commission. Licensed racetracks must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted electronic transfer of funds. From
the gross terminal income remitted by the licensee to the commission, the commission shall
deduct an amount sufficient to reimburse the commission for its actual costs and expenses
incurred in administering racetrack video lottery at the licensed racetrack, and the resulting
amount after the deduction is the net terminal income. The amount deducted for administrative
costs and expenses of the commission may not exceed four percent of gross terminal income:
Provided, That any amounts deducted by the commission for its actual costs and expenses that
exceeds its actual costs and expenses shall be deposited into the state lottery fund. For all fiscal
years beginning on or after the first day of July, two thousand one, the commission shall not
receive an amount of gross terminal income in excess of the amount of gross terminal income
received during the fiscal year ending on the thirtieth day of June, two thousand one, but four
percent of any amount of gross terminal income received in excess of the amount of gross
terminal income received during the fiscal year ending on the thirtieth day of June, two thousand
one, shall be deposited into the fund established in section eighteen-a, article twenty-two of this
chapter.
(c) Net terminal income shall be divided as set out in this subsection. For all fiscal years
beginning on or after the first day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this
article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered
to cover all costs and expenses required to be expended by the licensed racetrack in connection
with video lottery operations. The division shall be made as follows:
(1) The commission shall receive thirty percent of net terminal income, which shall be
paid into the state lottery fund as provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen percent of net terminal income
at a licensed racetrack shall be deposited in the special fund established by the licensee, and used
for payment of regular purses in addition to other amounts provided for in article twenty-three,
chapter nineteen of this code, on and after the first day of July, two thousand five, the rate shall
be seven percent of net terminal income;
(3) The county where the video lottery terminals are located shall receive two percent of
the net terminal income: Provided, That:
(A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter,
any amount in excess of the two percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack is located that has participated in the West Virginia
thoroughbred development fund since on or before the first day of January, one thousand nine
hundred ninety-nine shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, said
fifty percent to be divided among the municipalities on a per capita basis as determined by the
most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter,
any amount in excess of the two percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of
this proviso is located and where the racetrack has been located in a municipality within the
county since on or before the first day of January, one thousand nine hundred ninety-nine shall
be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any
other county other that a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all
employees of the licensed racing association by making a deposit into a special fund to be
established by the racing commission to be used for payment into the pension plan for all
employees of the licensed racing association;
(5) The West Virginia thoroughbred development fund created under section thirteen-b,
article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding
development fund created under section ten of said article shall receive an equal share of a total
of not less than one and one-half percent of the net terminal income: Provided, That for any
racetrack which does not have a breeder's program supported by the thoroughbred development
fund or the greyhound breeding development fund, the one and one-half percent provided for in
this subdivision shall be deposited in the special fund established by the licensee and used for
payment of regular purses, in addition to other amounts provided in subdivision (2) of this
subsection and article twenty-three, chapter nineteen of this code.
(6) The West Virginia racing commission shall receive one percent of the net terminal
income which shall be deposited and used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code.
(7) A licensee shall receive forty-seven percent of net terminal income.
(8) (A) The tourism promotion fund established in section twelve, article two, chapter
five-b of this code shall receive three percent of the net terminal income: Provided, That for the
fiscal year beginning the first day of July, two thousand three, the tourism commission shall
transfer from the tourism promotion fund five million dollars of the three percent of the net
terminal income described in this section and section ten-b of this article into the fund
administered by the West Virginia economic development authority pursuant to section seven,
article fifteen, chapter thirty-one of this code, five million dollars into the capitol renovation and improvement fund administered by the department of administration pursuant to section six,
article four, chapter five-a of this code and five million dollars into the tax reduction and federal
funding increased compliance fund; and
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary,
for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent
of net terminal income and the three percent of net terminal income described in paragraph (B),
subdivision (8), subsection (a), section ten-b of this article shall be distributed as provided in this
paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income described in this section and
in section ten-b of this article shall be deposited into the tourism promotion fund created under
section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income described in this section and
in section ten-b of this article shall be deposited into the development office promotion fund
created under section three-b, article two, chapter five-b of this code;
(iii) 0.5 percent of the total amount of net terminal income described in this section and
in section ten-b of this article shall be deposited into the research challenge fund created under
section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income described in this section
and in section ten-b of this article shall be deposited into the capitol renovation and improvement
fund administered by the department of administration pursuant to section six, article four, chapter
five-a of this code; and
(v) 0.0625 percent of the total amount of net terminal income described in this section and
in section ten-b of this article shall be deposited into the 2004 capitol complex parking garage
fund administered by the department of administration pursuant to section five-a, article four,
chapter five-a of this code; and
(9) On and after the first day of July, two thousand five, seven percent of net terminal income shall be deposited into the workers' compensation debt reduction fund created in section
five, article two-d, chapter twenty-three of this code; and
(9) (10) The remaining one percent of net terminal income shall be deposited as follows:
(A) For the fiscal year beginning the first day of July, two thousand three, the veterans
memorial program shall receive one percent of the net terminal income until sufficient moneys
have been received to complete the veterans memorial on the grounds of the state capitol complex
in Charleston, West Virginia. The moneys shall be deposited in the state treasury in the division
of culture and history special fund created under section three, article one-i, chapter twenty-nine
of this code: Provided, That only after sufficient moneys have been deposited in the fund to
complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans
memorial, not more than twenty thousand dollars of the one percent of net terminal income
provided for in this subdivision shall be deposited into a special revenue fund in the state treasury,
to be known as the "John F. 'Jack' Bennett Fund". The moneys in this fund shall be expended
by the division of veterans affairs to provide for the placement of markers for the graves of
veterans in perpetual cemeteries in this state. The division of veterans affairs shall promulgate
legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code
specifying the manner in which the funds are spent, determine the ability of the surviving spouse
to pay for the placement of the marker and setting forth the standards to be used to determine the
priority in which the veterans grave markers will be placed in the event that there are not
sufficient funds to complete the placement of veterans grave markers in any one year, or at all.
Upon payment in full of the bonded indebtedness on the veterans memorial, one hundred
thousand dollars of the one percent of net terminal income provided for in this subdivision shall
be deposited in the special fund in the division of culture and history created under section three,
article one-i, chapter twenty-nine of this code and be expended by the division of culture and
history to establish a West Virginia veterans memorial archives within the cultural center to serve
as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That five
hundred thousand dollars of the one percent of net terminal income shall be deposited in the state
treasury in a special fund of the department of administration, created under section five, article
four, chapter five-a of this code, to be used for construction and maintenance of a parking garage
on the state capitol complex; and the remainder of the one percent of net terminal income shall
be deposited in equal amounts in the capitol dome and improvements fund created under section
two, article four, chapter five-a of this code and cultural facilities and capitol resources matching
grant program fund created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net terminal income shall be
deposited in the state treasury in a special fund of the department of administration, created under
section five, article four, chapter five-a of this code, to be used for construction and maintenance
of a parking garage on the state capitol complex; and
(ii) The remainder of the one percent of net terminal income and all of the one percent of
net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of
said this article twenty-two-a shall be distributed as follows: The net terminal income shall be
deposited in equal amounts into the capitol dome and capitol improvements fund created under
section two, article four, chapter five-a of this code and the cultural facilities and capitol resources
matching grant program fund created under section three, article one, chapter twenty-nine of this
code until a total of one million five hundred thousand dollars is deposited into the cultural
facilities and capitol resources matching grant program fund; thereafter, the remainder shall be
deposited into the capitol dome and capitol improvements fund.
(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than
the gross terminal income from its operation of video lottery machines, to be electronically
transferred by the commission on dates established by the commission. Upon a licensed
racetrack's failure to maintain this balance, the commission may disable all of a licensed racetrack's video lottery terminals until full payment of all amounts due is made. Interest shall
accrue on any unpaid balance at a rate consistent with the amount charged for state income tax
delinquency under chapter eleven of this code. The interest shall begin to accrue on the date
payment is due to the commission.
(e) The commission's central control computer shall keep accurate records of all income
generated by each video lottery terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery
terminals. Each licensed racetrack shall report to the commission any discrepancies between the
commission's statement and each terminal's mechanical and electronic meter readings. The
licensed racetrack is solely responsible for resolving income discrepancies between actual money
collected and the amount shown on the accounting meters or on the commission's billing
statement.
(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the
commission may make no credit adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the commission the maintenance log which
includes current mechanical meter readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter readings and the commission's records
cannot be reconciled, final disposition of the matter shall be determined by the commission. Any
accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the
commission.
(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is
not operational or the commission notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal to the total amount of cash inserted
into each video lottery terminal operated by a licensee, minus the total value of game credits
which are cleared from the video lottery terminal in exchange for winning redemption tickets, and
remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail
no later than noon on the day when the payment would otherwise be completed through electronic
funds transfer.
(h) Licensed racetracks may, upon request, receive additional reports of play transactions
for their respective video lottery terminals and other marketing information not considered
confidential by the commission. The commission may charge a reasonable fee for the cost of
producing and mailing any report other than the billing statements.
(i) The commission has the right to examine all accounts, bank accounts, financial
statements and records in a licensed racetrack's possession, under its control or in which it has an
interest and the licensed racetrack shall authorize all third parties in possession or in control of
the accounts or records to allow examination of any of those accounts or records by the
commission.
§29-22A-10b. Distribution of excess net terminal income.
(a) For all years beginning on or after the first day of July, two thousand one, any amount
of net terminal income generated annually by a licensed racetrack in excess of the amount of net
terminal income generated by that licensed racetrack during the fiscal year ending on the thirtieth
day of June, two thousand one, shall be divided as follows:
(1) The commission shall receive forty-one percent of net terminal income, which the
commission shall deposit in the state excess lottery revenue fund created in section eighteen-a,
article twenty-two of this chapter;
(2) Until the first day of July, two thousand five, eight percent of net terminal income at
a licensed racetrack shall be deposited in the special fund established by the licensee and used for
payment of regular purses in addition to other amounts provided for in article twenty-three,
chapter nineteen of this code; on and after the first day of July, two thousand five, the rate shall
be four percent of net terminal income;
(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:
(A) Any amount by which the total amount under this section and subdivision (3),
subsection (c), section ten of this article is in excess of the two percent received during fiscal year
one thousand nine hundred ninety-nine by a county in which a racetrack is located that has
participated in the West Virginia thoroughbred development fund since on or before the first day
of January, one thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, the
fifty percent to be divided among the municipalities on a per capita basis as determined by the
most recent decennial United States census of population; and
(B) Any amount by which the total amount under this section and subdivision (3),
subsection (c), section ten of this article is in excess of the two percent received during fiscal year
one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack
described in paragraph (A) of this proviso is located and where the racetrack has been located in
a municipality within the county since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any
county other than a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all
employees of the licensed racing association by making a deposit into a special fund to be
established by the racing commission to be used for payment into the pension plan for all
employees of the licensed racing association;
(5) The West Virginia thoroughbred development fund created under section thirteen-b,
article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development fund created under section ten, article twenty-three, chapter nineteen of this code
shall receive an equal share of a total of not less than one and one-half percent of the net terminal
income: Provided, That for any racetrack which does not have a breeder's program supported by
the thoroughbred development fund or the greyhound breeding development fund, the one and
one-half percent provided for in this subdivision shall be deposited in the special fund established
by the licensee and used for payment of regular purses, in addition to other amounts provided for
in subdivision (2) of this subsection and article twenty-three, chapter nineteen of this code;
(6) The West Virginia racing commission shall receive one percent of the net terminal
income which shall be deposited and used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-two percent of net terminal income;
(8) The tourism promotion fund established in section twelve, article two, chapter five-b
of this code shall receive three percent of the net terminal income: Provided, That for each fiscal
year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal
income shall be distributed pursuant to the provisions of paragraph (B), subdivision (8),
subsection (c), section ten of this article; and
(9) On and after the first day of July, two thousand five, four percent of net terminal
income shall be deposited into the workers' compensation debt reduction fund created in section
five, article thirteen-v, chapter eleven of this code: Provided, That in any fiscal year when the
amount of money generated by this subdivision together with the total allocation transferred by
the operation of subdivision (9), subsection (c), section ten of this article totals eleven million
dollars, all subsequent distributions under this subdivision (9) shall be deposited in the special
fund established by the licensee, and used for payment of regular purses in addition to other
amounts provided for in article twenty-three, chapter nineteen of this code; and
(9) (10) (A) One percent of the net terminal income shall be deposited in equal amounts
in the capitol dome and improvements fund created under section two, article four, chapter five-a of this code and cultural facilities and capitol resources matching grant program fund created
under section three, article one of this chapter; and
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary,
for each fiscal year beginning after the thirtieth day of June, two thousand four, this one percent
of net terminal income shall be distributed pursuant to the provisions of subparagraph (ii),
paragraph (B), subdivision (9), subsection (c), section ten of this article.
(b) The commission may establish orderly and effective procedures for the collection and
distribution of funds under this section in accordance with the provisions of this section and
section ten of this article.
CHAPTER 33. INSURANCE.
ARTICLE 1. DEFINITIONS.
§33-1-2. Insurer.
Insurer is every person engaged in the business of making contracts of
insurance. Insurer includes private carrier as that term is used in chapter twenty-three of this code.
§33-1-10. Kinds of insurance defined.
The following definitions of kinds of insurance are not mutually exclusive and, if
reasonably adaptable thereto, a particular coverage may be included under one or more of such
definitions:
(a) Life insurance. -- Life insurance is insurance on human lives including endowment
benefits, additional benefits in the event of death or dismemberment by accident or accidental
means, additional benefits for disability and annuities.
(b) Accident and sickness. -- Accident and sickness insurance is insurance against bodily
injury, disability or death by accident or accidental means, or the expense thereof, or against
disability or expense resulting from sickness and insurance relating thereto. Group credit accident
and health insurance may also include loss of income insurance which is insurance against the
failure of a debtor to pay his or her monthly obligation due to involuntary loss of employment. For the purposes of this definition, involuntary loss of employment means the debtor loses
employment income (salary or wages) as a result of unemployment caused by individual or mass
layoff, general strikes, labor disputes, lockout or termination by employer for other than willful
or criminal misconduct. Any or all of the above-mentioned perils may be included in an insurance
policy, at the discretion of the policyholder.
(c) Fire. -- Fire insurance is insurance on real or personal property of every kind and
interest therein, against loss or damage from any or all hazard or cause, and against loss
consequential upon such loss or damage, other than noncontractual liability for any such loss or
damage. Fire insurance shall also include miscellaneous insurance as defined in paragraph (12),
subdivision (e) of this section.
(d) Marine insurance is insurance:
(1) Against any and all kinds of loss or damage to vessels, craft, aircraft, cars,
automobiles and vehicles of every kind, as well as all goods, freight, cargoes, merchandise,
effects, disbursements, profits, moneys, bullion, precious stones, securities, chooses in action,
evidences of debt, valuable papers, bottomry and respondentia interests and all other kinds of
property and interests therein, in respect to, appertaining to or in connection with any and all risks
or perils of navigation, transit or transportation, including war risks, on or under any seas or other
waters, on land (above or below ground), or in the air, or while being assembled, packed, crated,
baled, compressed or similarly prepared for shipment or while awaiting the same or during any
delays, storage, transshipment, or reshipment incident thereto, including marine builders' risks and
all personal property floater risks;
(2) Against any and all kinds of loss or damage to person or to property in connection
with or appertaining to a marine, inland marine, transit or transportation insurance, including
liability for loss of or damage to either, arising out of or in connection with the construction,
repair, operation, maintenance or use of the subject matter of such insurance (but not including
life insurance or surety bonds nor insurance against loss by reason of bodily injury to the person arising out of the ownership, maintenance or use of automobiles);
(3) Against any and all kinds of loss or damage to precious stones, jewels, jewelry, gold,
silver and other precious metals, whether used in business or trade or otherwise and whether the
same be in course of transportation or otherwise;
(4) Against any and all kinds of loss or damage to bridges, tunnels and other
instrumentalities of transportation and communication (excluding buildings, their furniture and
furnishings, fixed contents and supplies held in storage) unless fire, windstorm, sprinkler leakage,
hail, explosion, earthquake, riot or civil commotion or any or all of them are the only hazards to
be covered;
(5) Against any and all kinds of loss or damage to piers, wharves, docks and ships,
excluding the risks of fire, windstorm, sprinkler leakage, hail, explosion, earthquake, riot and civil
commotion and each of them;
(6) Against any and all kinds of loss or damage to other aids to navigation and
transportation, including dry docks and marine railways, dams and appurtenant facilities for
control of waterways; and
(7) Marine protection and indemnity insurance, which is insurance against, or against
legal liability of the insured for, loss, damage or expense arising out of, or incident to, the
ownership, operation, chartering, maintenance, use, repair or construction of any vessel, craft or
instrumentality in use in ocean or inland waterways, including liability of the insured for personal
injury, illness or death or for loss of or damage to the property of another person.
(e) Casualty. -- Casualty insurance includes:
(1) Vehicle insurance, which is insurance against loss of or damage to any land vehicle
or aircraft or any draft or riding animal or to property while contained therein or thereon or being
loaded therein or therefrom, from any hazard or cause, and against any loss, liability or expense
resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or
animal; together with insurance against accidental death or accidental injury to individuals, including the named insured, while in, entering, alighting from, adjusting, repairing or cranking,
or caused by being struck by any vehicle, aircraft or draft or riding animal, if such insurance is
issued as a part of insurance on the vehicle, aircraft or draft or riding animal;
(2) Liability insurance, which is insurance against legal liability for the death, injury or
disability of any human being, or for damage to property; and provisions for medical, hospital,
surgical, disability benefits to injured persons and funeral and death benefits to dependents,
beneficiaries or personal representatives of persons killed, irrespective of legal liability of the
insured, when issued as an incidental coverage with or supplemental to liability insurance;
(3) Burglary and theft insurance, which is insurance against loss or damage by burglary,
theft, larceny, robbery, forgery, fraud, vandalism, malicious mischief, confiscation, or wrongful
conversion, disposal or concealment, or from any attempt at any of the foregoing, including
supplemental coverages for medical, hospital, surgical and funeral benefits sustained by the
named insured or other person as a result of bodily injury during the commission of a burglary,
robbery or theft by another; also insurance against loss of or damage to moneys, coins, bullion,
securities, notes, drafts, acceptances or any other valuable papers and documents resulting from
any cause;
(4) Personal property floater insurance, which is insurance upon personal effects against
loss or damage from any cause;
(5) Glass insurance, which is insurance against loss or damage to glass, including its
lettering, ornamentation and fittings;
(6) Boiler and machinery insurance, which is insurance against any liability and loss or
damage to property or interest resulting from accidents to or explosion of boilers, pipes, pressure
containers, machinery or apparatus and to make inspection of and issue certificates of inspection
upon boilers, machinery and apparatus of any kind, whether or not insured;
(7) Leakage and fire extinguishing equipment insurance, which is insurance against loss
or damage to any property or interest caused by the breakage or leakage of sprinklers, hoses, pumps and other fire extinguishing equipment or apparatus, water mains, pipes and containers,
or by water entering through leaks or openings in buildings, and insurance against loss or damage
to such sprinklers, hoses, pumps and other fire extinguishing equipment or apparatus;
(8) Credit insurance, which is insurance against loss or damage resulting from failure of
debtors to pay their obligations to the insured. Credit insurance shall include loss of income
insurance which is insurance against the failure of a debtor to pay his or her monthly obligation
due to involuntary loss of employment. For the purpose of this definition, involuntary loss of
employment means the debtor loses employment income (salary or wages) as a result of
unemployment caused by individual or mass layoff, general strikes, labor disputes, lockout or
termination by employer for other than willful or criminal misconduct; any or all of the above-
mentioned perils may be included in an insurance policy, at the discretion of the policyholder;
(9) Malpractice insurance, which is insurance against legal liability of the insured and
against loss, damage or expense incidental to a claim of such liability, and including medical,
hospital, surgical and funeral benefits to injured persons, irrespective of legal liability of the
insured arising out of the death, injury or disablement of any person, or arising out of damage to
the economic interest of any person, as the result of negligence in rendering expert, fiduciary or
professional service;
(10) Entertainment insurance, which is insurance indemnifying the producer of any
motion picture, television, radio, theatrical, sport, spectacle, entertainment or similar production,
event or exhibition against loss from interruption, postponement or cancellation thereof due to
death, accidental injury or sickness of performers, participants, directors or other principals;
(11) Mine subsidence insurance as provided for in article thirty of this chapter;
(12) Miscellaneous insurance, which is insurance against any other kind of loss, damage
or liability properly a subject of insurance and not within any other kind of insurance as defined
in this chapter, if such insurance is not disapproved by the commissioner as being contrary to law
or public policy; and
(13) Federal flood insurance, which is insurance provided by the federal insurance
administration or by private insurers through the write your own program within the national
flood insurance program, instituted by the federal insurance administration pursuant to the
provision of 42 U.S.C. §4071, on real or personal property of every kind and interest therein,
against loss or damage from flood or mudslide and against loss consequential to such loss or
damage, other than noncontractual liability for any loss or damage.
(14) Workers' compensation insurance, which is insurance providing all compensation
and benefits required by chapter twenty-three of this code.
(f) Surety. -- Surety insurance includes:
(1) Fidelity insurance, which is insurance guaranteeing the fidelity of persons holding
positions of public or private trust;
(2) Insurance guaranteeing the performance of contracts, other than insurance policies,
and guaranteeing and executing bonds, undertakings and contracts of surety ship: Provided, That
surety insurance does not include the guaranteeing and executing of bonds by professional
bondsmen in criminal cases or by individuals not in the business of becoming a surety for
compensation upon bonds;
(3) Insurance indemnifying banks, bankers, brokers, financial or moneyed corporations
or associations against loss, resulting from any cause, of bills of exchange, notes, bonds,
securities, evidences of debt, deeds, mortgages, warehouse receipts or other valuable papers,
documents, money, precious metals and articles made therefrom, jewelry, watches, necklaces,
bracelets, gems, precious and semiprecious stones, including any loss while they are being
transported in armored motor vehicles or by messenger, but not including any other risks of
transportation or navigation, and also insurance against loss or damage to such an insured's
premises or to his furnishings, fixtures, equipment, safes and vaults therein, caused by burglary,
robbery, theft, vandalism or malicious mischief, or any attempt to commit such crimes; and
(4) Title insurance, which is insurance of owners of property or others having an interest therein, or liens or encumbrances thereon, against loss by encumbrance, defective title, invalidity
or adverse claim to title.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-10. Rules and regulations.
(a) The commissioner is authorized to promulgate and adopt such rules and regulations
relating to insurance as are necessary to discharge his or her duties and exercise his or her powers
and to effectuate the provisions of this chapter and to, protect and safeguard the interests of
policyholders and the public of this state.
(b) The commissioner is authorized to promulgate rules necessary to discharge his or her
duties relating to workers' compensation insurance as set forth in chapter twenty-three of this
code, which shall be exempt from the provisions of chapter twenty-nine-a, article three of this
code, except that these rules shall be filed with the Secretary of State's Office.
(c) Prior to assuming regulatory authority over workers' compensation insurance pursuant
to article two-c, chapter twenty-three of this code, the commissioner shall review and revise all
applicable rules to reflect the assumption of this new regulatory authority: Provided, That all such
revisions shall be exempt from the provisions of chapter twenty-nine-a, article three, except that
the amended rules shall be filed with the Secretary of State's Office.
§33-2-20. Authority of Insurance Commissioner to regulate workers compensation
industry; authority of Insurance Commissioner to administer
chapter twenty-three.
(a) Upon the termination of the Workers' Compensation Commission pursuant to chapter
twenty-three of this code, the powers and duties heretofore imposed upon the Workers'
Compensation Commission as they relate to general administration of the provisions of chapter
twenty-three of this code are hereby transferred to and imposed upon the Insurance
Commissioner.
(b) Unless otherwise specified in chapter twenty-three, upon termination of the Workers' Compensation Commission, the duties imposed upon the Workers' Compensation Commission
as they relate to the award and payment of disability and death benefits and the review of claims
in articles four and five, chapter twenty-three of this code, will be imposed upon the employers
mutual insurance company established pursuant to article two-c, chapter twenty-three of this code,
a private carrier offering workers' compensation insurance in this state and self-insured
employers. Whenever reference is made to the Workers' Compensation Commissioner in those
articles, the duty prescribed shall apply to the employers mutual insurance company, a private
carrier or self-insured employer, as applicable.
(c) From the effective date of this enactment, the Insurance Commissioner shall regulate
all insurers licensed to transact workers' compensation insurance in this state and all of the
provisions of this chapter shall apply to such insurers, unless otherwise exempted by statute.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-2. Definitions.
As used in this article:
(1) "Benefits" mean money payments, goods, services or other thing of value paid in
response to a claim filed with an insurer based upon a policy of insurance;
(2) "Business of insurance" means the writing of insurance, including the writing of
workers' compensation insurance under the provisions of chapter twenty-three of this code, self-
insurance by an employer or employer group for workers' compensation risk including the risk
of catastrophic injuries under the provisions of chapter twenty-three of this code or the reinsuring
of risks by an insurer, including acts necessary or incidental to writing insurance or reinsuring
risks and the activities of persons who act as or are officers, directors, agents or employees of
insurers, or who are other persons authorized to act on their behalf;
(3) "Claim" means an application or request for payment or benefits provided under the
terms of a policy of insurance;
(4) "Commissioner" means the Insurance Commissioner of West Virginia or his or her designee;
(5) "Health care provider" means a person, partnership, corporation, facility or institution
licensed by, or certified in, this state or another state, to provide health care or professional health
care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist,
registered or licensed practical nurse, optometrist, pharmacist, podiatrist, chiropractor, physical
therapist or psychologist;
(6) "Insurance" means a contract or arrangement in which a person undertakes to:
(A) Pay or indemnify another person as to loss from certain contingencies called "risks",
including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to another person in
connection with ascertainable risk contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety; or
(E) Self-insurance for workers' compensation risk including the risk of catastrophic
injuries under the provisions of chapter twenty-three of this code.
(7) "Insurer" means a person entering into arrangements or contracts of insurance or
reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company,
mutual company, mutual protective association, farmers' mutual fire companies, fraternal benefit
society, reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit
health care corporation, nonprofit hospital service association, nonprofit dental care corporation,
health maintenance organization, captive insurance company, risk retention group or other insurer,
regardless of the type of coverage written, including the writing of workers' compensation
insurance or self insurance under the provisions of chapter twenty-three of this code, benefits
provided or guarantees made by each. A person is an insurer regardless of whether the person is
acting in violation of laws requiring a certificate of authority or regardless of whether the person
denies being an insurer;
(8) "Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a joint stock company, a trust, trustees, an unincorporated
organization, or any similar business entity or any combination of the foregoing. "Person" also
includes hospital service corporations, medical service corporations and dental service
corporations as defined in article twenty-four of this chapter, health care corporations as defined
in article twenty-five of this chapter, or a health maintenance organization organized pursuant to
article twenty-five-a of this chapter;
(9) "Policy" means an individual or group policy, group certificate, contract or
arrangement of insurance or reinsurance, coverage by a self-insured employer or employer group
for its workers' compensation risk including its risk of catastrophic injuries or reinsurance,
affecting the rights of a resident of this state or bearing a reasonable relation to this state,
regardless of whether delivered or issued for delivery in this state;
(10) "Reinsurance" means a contract, binder of coverage (including placement slip) or
arrangement under which an insurer procures insurance for itself in another insurer as to all or part
of an insurance risk of the originating insurer;
(11) "Statement" means any written or oral representation made to any person, insurer
or authorized agency. A statement includes, but is not limited to, any oral report or
representation; any insurance application, policy, notice or statement; any proof of loss, bill of
lading, receipt for payment, invoice, account, estimate of property damages, or other evidence of
loss, injury or expense; any bill for services, diagnosis, prescription, hospital or doctor record, X-
ray, test result or other evidence of treatment, services or expense; and any application, report,
actuarial study, rate request or other document submitted or required to be submitted to any
authorized agency. A statement also includes any written or oral representation recorded by
electronic or other media; and
(12) "Unit" means the insurance fraud unit established pursuant to the provisions of this
article acting collectively or by its duly authorized representatives.
ARTICLE 41. PRIVILEGES AND IMMUNITY.
§33-41-8. Creation of insurance fraud unit; purpose; duties; personnel qualifications.
(a) There is established the West Virginia insurance fraud unit within the office of the
insurance commissioner of West Virginia. The commissioner may employ full-time supervisory,
legal and investigative personnel for the unit, who shall be qualified by training and experience
in the areas of detection, investigation or prosecution of fraud within and against the insurance
industry to perform the duties of their positions. The director of the fraud unit shall be a full-time
position and shall be appointed by the commissioner and serve at his or her will and pleasure.
The commissioner shall provide office space, equipment, supplies, clerical and other staff that is
necessary for the unit to carry out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the unit has cause to believe
violations of the provisions of this chapter or , the provisions of chapter twenty-three, the
provisions of article three, chapter sixty-one of this code relating to the business of insurance have
been or are being committed;
(2) Review reports or complaints of alleged fraud related to the business of insurance
activities from federal, state and local law-enforcement and regulatory agencies, persons engaged
in the business of insurance and the general public to determine whether the reports require
further investigation; and
(3) Conduct independent examinations of alleged fraudulent activity related to the
business of insurance and undertake independent studies to determine the extent of fraudulent
insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal
counsel, investigators, auditors and clerical support personnel and other personnel as the
commissioner determines necessary from time to time to accomplish the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in criminal matters;
(4) Share records and evidence with federal, state or local law-enforcement or regulatory
agencies, and enter into interagency agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the information the insurance fraud unit
seeks to obtain is located outside this state, the person from whom the information is sought may
make the information available to the insurance fraud unit to examine at the place where the
information is located. The insurance fraud unit may designate representatives, including officials
of the state in which the matter is located, to inspect the information on behalf of the insurance
fraud unit, and the insurance fraud unit may respond to similar requests from officials of other
states;
(7) The fraud unit may initiate investigations and participate in the development of, and
if necessary, the prosecution of any health care provider, including a provider of rehabilitation
services, suspected of fraudulent activity related to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall be permitted to operate
vehicles owned or leased for the state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the contrary, specific personnel
designated by the commissioner may carry firearms in the course of their official duties after
meeting specialized qualifications established by the governor's committee on crime, delinquency
and correction, which shall include the successful completion of handgun training provided to
law-enforcement officers by the West Virginia state police: Provided, That nothing in this
subsection shall be construed to include any person designated by the commissioner as a
law-enforcement officer as that term is defined by the provisions of section one, article twenty-
nine, chapter thirty of this code; and
(10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter six of this code and the investigations conducted by the insurance fraud unit and the
materials placed in the files of the unit as a result of any such investigation are exempt from
public disclosure under the provisions of chapter twenty-nine-b of this code.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to defraud submits a
materially false statement in support of a claim for insurance benefits or payment pursuant to a
policy of insurance or who conspires to do so is guilty of a crime and is subject to the penalties
set forth in the provisions of this section.
(b) Any person who commits a violation of the provisions of subsection (a) of this section
where the benefit sought exceeds one thousand dollars in value is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility for not less than one nor more than
ten years, fined not more than ten thousand dollars, or both or in the discretion of the circuit court
confined in a county or regional jail for not more than one year and so fined.
(c) Any person who commits a violation of the provisions of subsection (a) of this section
where the benefit sought is one thousand dollars or less in value, is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in a county or regional jail for not more than one year,
fined not more than two thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is subject to the restitution
provisions of article eleven-a, chapter sixty-one of this code.
(e) In addition to the foregoing provisions, the offenses enumerated in sections twenty-
four-e through twenty-four-h, inclusive, article three, chapter sixty-one of this code are applicable
to matters concerning workers' compensation insurance.
(c) (f) The circuit court may award to the unit or other law-enforcement agency
investigating a violation of this section or other criminal offense related to the business of
insurance its cost of investigation.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-24e. Omission to subscribe for workers' compensation insurance; failure to file a
premium tax report or pay premium taxes; false testimony or
statements; failure to file reports; penalties; asset forfeiture;
venue.
(1) Failure to subscribe:
(A) Responsible person. Any person who individually or as owner, partner, president,
other officer, or manager of a sole proprietorship, firm, partnership, company, corporation or
association, who, as a person who is responsible for and who is required by specific assignment,
duty or legal duty, which is either expressed or inherent in laws which require the employer's
principals to be informed and to know the facts and laws affecting the business organization and
to make internal policy and decisions which ensure that the individual and organization comply
with the general laws and provisions of chapter twenty-three of this code, knowingly and willfully
fails to subscribe to the workers' compensation fund for and maintain workers' compensation
insurance shall be guilty of a felony and, upon conviction, shall be imprisoned in a state
correctional facility not less than one nor more than ten years, or in the discretion of the court, be
confined in a county or regional jail not more than one year and shall be fined not more than two
thousand five hundred dollars.
(B) Any corporation, association or partnership who, as an employer as defined in chapter
twenty-three of this code, knowingly and willfully fails to subscribe to the workers' compensation
fund for and maintain workers' compensation insurance shall be guilty of a felony and, upon
conviction, shall be fined not less than two thousand five hundred dollars nor more than ten
thousand dollars.
(2) Failure to pay:
(A) Any person who individually or as owner, partner, president, other officer or manager
of a sole proprietorship, firm, partnership, company, corporation or association, who, as a responsible person as defined in this section, knowingly and willfully fails to make premium tax
payments to the workers' compensation fund or premiums to a private carrier as required by
chapter twenty-three of this code, shall be guilty of the larceny of the premium owed and, if the
amount is one thousand dollars or more, such person shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more
than ten years or, in the discretion of the court, be confined in a county or regional jail not more
than one year and shall be fined not more than two thousand five hundred dollars. If the amount
is less than one thousand dollars, such person shall be guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail for a term not to exceed one year
or fined an amount not to exceed two thousand five hundred dollars, or both, in the discretion of
the court.
(B) Any corporation, association, company or partnership which, as an employer as
defined in chapter twenty-three of this code, knowingly and willfully fails to make premium tax
payments to the workers' compensation fund or premiums to a private carrier as required by
chapter twenty-three of this code shall be guilty of the larceny of the premium owed, and, if the
amount is one thousand dollars or more, such corporation, association, company or partnership
shall be guilty of a felony and, upon conviction thereof, shall be fined not less than two thousand
five hundred dollars nor more than ten thousand dollars. If the amount is less than one thousand
dollars, such corporation, association, company or partnership shall be guilty of a misdemeanor
and, upon conviction thereof, shall be fined an amount not to exceed two thousand five hundred
dollars.
(C) Any person who individually or as owner, partner, president, other officer, or
manager of a sole proprietorship, firm, partnership, company, corporation or association, who,
as a responsible person, as defined in this section, knowingly and willfully and with fraudulent
intent sells, transfers or otherwise disposes of substantially all of the employer's assets for the
purpose of evading the payment of workers' compensation premium taxes to the workers' compensation fund, or premiums to a private carrier as required by chapter twenty-three of this
code, shall be guilty of the larceny of the premium owed and, if the amount is one thousand
dollars or more, such person shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than one nor more than ten years or, in the
discretion of the court, be confined in a county or regional jail not more than one year and shall
be fined not more than two thousand five hundred dollars. If the amount is less than one thousand
dollars, such person shall be guilty of a misdemeanor and, upon conviction thereof, shall be
confined in a county or regional jail for a term not to exceed one year or fined an amount not to
exceed two thousand five hundred dollars, or both, in the discretion of the court.
(D) Any corporation, association, company or partnership which, as an employer as
defined in chapter twenty-three of this code, knowingly and willfully and with fraudulent intent
sells, transfers or otherwise disposes of substantially all of the employer's assets for the purpose
of evading the payment of workers' compensation premium taxes to the workers' compensation
fund, or premiums to a private carrier as required by chapter twenty-three of this code shall be
guilty of the larceny of the premium owed, and, if the amount is one thousand dollars or more,
such corporation, association, company or partnership shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than two thousand five hundred dollars nor more than
ten thousand dollars. If the amount is less than one thousand dollars, such corporation,
association, company or partnership shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed two thousand five hundred dollars.
(3) Failure to file premium tax reports:
(A) Any person who individually or as owner, partner, president, other officer, or
manager of a sole proprietorship, firm, partnership, company, corporation or association, who,
as a responsible person as defined in this section, knowingly and willfully fails to file a premium
tax report with the workers' compensation fund or a premium report to a private carrier as
required by chapter twenty-three of this code, shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than ten
years, or in the discretion of the court, be confined in a county or regional jail for a term not to
exceed one year and shall be fined not more than two thousand five hundred dollars.
(B) Any corporation, association, company or partnership which, as an employer as
defined in chapter twenty-three of this code, knowingly and willfully fails to file a premium tax
report with the workers' compensation fund or a premium report to a private carrier as required
by chapter twenty-three of this code, shall be guilty of a felony and, upon conviction thereof, shall
be fined not less than two thousand five hundred dollars nor more than ten thousand dollars.
(4) Failure to file other reports:
(A) Any person, individually or as owner, partner, president or other officer, or manager
of a sole proprietorship, firm, partnership, company, corporation or association who, as a
responsible person as defined in this section, knowingly and willfully fails to file any report, other
than a premium tax report, required by such chapter shall be guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail for a term not to exceed one year
or fined an amount not to exceed two thousand five hundred dollars, or both, in the discretion of
the court.
(B) Any corporation, association, company or partnership which, as an employer as
defined in chapter twenty-three of this code, knowingly and willfully fails to file any report, other
than a premium tax report, with the workers' compensation fund or Insurance Commissioner as
required by chapter twenty-three of this code, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed two thousand five hundred dollars.
(5) False testimony or statements:
Any person, individually or as owner, partner, president, other officer, or manager of a
sole proprietorship, firm, partnership, company, corporation or association who, as a responsible
person as defined in this section, knowingly and willfully makes a false report or statement under
oath, affidavit, certification or by any other means respecting any information required to be provided under chapter twenty-three of this code shall be guilty of a felony and, upon conviction
thereof, shall be confined in a state correctional facility for a definite term of imprisonment which
is not less than one year nor more than three years or fined not less than one thousand dollars nor
more than ten thousand dollars, or both, in the discretion of the court. In addition to any other
penalty imposed, the court shall order any defendant convicted under this section to make full
restitution of all moneys paid by or due to the workers' compensation fund, Insurance
Commissioner or private carrier as the result of a violation of this section. The restitution ordered
shall constitute a judgment against the defendant and in favor of the state of West Virginia
workers' compensation commission, Insurance Commissioner or private carrier.
(6) Asset forfeiture:
(A) The court, in imposing sentence on a person or entity convicted of an offense under
this section, shall order the person or entity to forfeit property, real or personal, that constitutes
or is derived, directly or indirectly, from gross proceeds traceable to the commission, Insurance
Commissioner or private carrier of the offense. Any person or entity convicted under this section
shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A) of this subsection, the term "payment of the costs of
asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain, inventory, safeguard,
maintain, advertise, sell or dispose of property under seizure, detention, forfeiture or of any other
necessary expenses incident to the seizure, detention, forfeiture, or disposal of such property,
including payment for:
(I) Contract services;
(II) The employment of outside contractors to operate and manage properties or provide
other specialized services necessary to dispose of such properties in an effort to maximize the
return from such properties; and
(III) Reimbursement of any state or local agency for any expenditures made to perform the functions described in this subparagraph;
(ii) The compromise and payment of valid liens and mortgages against property that has
been forfeited, subject to the discretion of the workers' compensation fund to determine the
validity of any such lien or mortgage and the amount of payment to be made, and the employment
of attorneys and other personnel skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or mitigation procedures relating
to property forfeited; and
(iv) The payment of state and local property taxes on forfeited real property that accrued
between the date of the violation giving rise to the forfeiture and the date of the forfeiture order.
(7) Venue:
Venue for prosecution of any violation of this section shall be either the county in which
the defendant's principal business operations are located or in Kanawha County where the
workers' compensation fund is located.
§61-3-24f. Wrongfully seeking workers' compensation; false testimony or statements;
penalties; venue.
(1) Any person who shall knowingly and with fraudulent intent secure or attempt to
secure compensation from the workers' compensation fund, a private carrier or from a self-insured
employer:
(A) That is larger in amount than that to which he or she is entitled; or
(B) That is longer in term than that to which he or she is entitled; or
(C) To which he or she is not entitled, shall be guilty of a larceny and, if the amount is
one thousand dollars or more, such person shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than one nor more than ten years or, in
the discretion of the court, be confined in a county or regional jail not more than one year and
shall be fined not more than two thousand five hundred dollars. If the amount is less than one
thousand dollars, such person shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a term not to exceed one year or fined an amount not
to exceed two thousand five hundred dollars, or both, in the discretion of the court.
(2) Any person who shall knowingly and willfully make a false report or statement under
oath, affidavit, certification or by any other means respecting any information required to be
provided under chapter twenty-three of this code shall be guilty of a felony and, upon conviction
thereof, shall be confined in a state correctional facility for a definite term of imprisonment which
is not less than one year nor more than three years or fined not less than one thousand dollars nor
more than ten thousand dollars, or both, in the discretion of the court.
(3) In addition to any other penalty imposed, the court shall order any person convicted
under this section to make full restitution of all moneys paid by the workers' compensation fund,
private carrier or self-insured employer as the result of a violation of this section. The restitution
ordered shall constitute a judgment against the defendant and in favor of the state of West
Virginia workers' compensation commission, private carrier or self-insured employer.
(4) If the person so convicted is receiving compensation from such fund, private carrier
or employer, he or she shall, from and after such conviction, cease to receive such compensation
as a result of any alleged injury or disease.
Venue for prosecution of any violation of this section shall either be the county in which
the claimant resides, the county in which the claimant is employed or working, or in Kanawha
County where the workers' compensation fund is located.
§61-3-24g. Workers' compensation health care offenses; fraud;
theft or embezzlement; false statements; penalties; notice; prohibition against providing
future services; penalties; asset forfeiture; venue.
(1) Any person who knowingly and willfully executes, or attempts to execute, a scheme
or artifice:
(A) To defraud the workers' compensation fund, private carrier or a self-insured employer
in connection with the delivery of or payment for workers' compensation health care benefits, items or services;
(B) To obtain, by means of false or fraudulent pretenses, representations, or promises any
of the money or property owned by or under the custody or control of the workers' compensation
fund, private carrier or a self-insured employer in connection with the delivery of or payment for
workers' compensation health care benefits, items or services; or
(C) To make any charge or charges against any injured employee or any other person, firm
or corporation which would result in a total charge for the treatment or service rendered in excess
of the maximum amount set forth in the workers' compensation commission's schedule of
maximum reasonable amounts to be paid for the treatment or services issued pursuant to
subsection (a), section three article four, chapter twenty-three of this code is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year
nor more than ten years or, in the discretion of the court, be confined in a county or regional jail
not more than one year and shall be fined not more than two thousand five hundred dollars.
(2) Any person who, in any matter involving a health care program related to the workers'
compensation fund workers' compensation insurance, knowingly and willfully:
(A) Falsifies, conceals or covers up by any trick, scheme or device a material fact; or
(B) Makes any materially false, fictitious or fraudulent statement or representation, or
makes or uses any materially false writing or document knowing the same to contain any
materially false, fictitious or fraudulent statement or entry, is guilty of a felony and, upon
conviction thereof, shall be confined in a state correctional facility for a definite term of
imprisonment which is not less than one year nor more than three years or fined not less than one
thousand dollars nor more than ten thousand dollars, or both, in the discretion of the court.
(3) Any person who willfully embezzles, steals or otherwise unlawfully converts to the
use of any person other than the rightful owner, or intentionally misapplies any of the moneys,
funds, securities, premiums, credits, property or other assets of a health care program related to
the workers' compensation fund provision of workers' compensation insurance, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less
than one year nor more than ten years or fined not less than ten thousand dollars, or both, in the
discretion of the court.
(4) Any health care provider who fails, in violation of subsection (5) of this section to post
a notice, in the form required by the workers' compensation commission, in the provider's public
waiting area that the provider cannot accept any patient whose treatment or other services or
supplies would ordinarily be paid for from the workers' compensation fund, private carrier or by
a self-insured employer unless the patient consents, in writing, prior to the provision of the
treatment or other services or supplies, to make payment for that treatment or other services or
supplies himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be fined
one thousand dollars.
(5) Any person convicted under the provisions of this section shall, after such conviction,
be barred from providing future services or supplies to injured employees for the purposes of
workers' compensation and shall cease to receive payment for services or supplies. In addition
to any other penalty imposed, the court shall order any defendant convicted under this section to
make full restitution of all moneys paid by or due to the workers' compensation fund, private
carrier or self-insured employer as the result of a violation of this section. The restitution ordered
shall constitute a judgment against the defendant and in favor of the state of West Virginia
workers' compensation commission, Insurance Commissioner, private carrier or self-insured
employer.
(6) (A) The court, in imposing sentence on a person convicted of an offense under this
section, shall order the person to forfeit property, real or personal, that constitutes or is derived,
directly or indirectly, from gross proceeds traceable to the commission of the offense. Any person
convicted under this section shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A) of this subsection, the term "payment of the costs of
asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain, inventory, safeguard, maintain,
advertise, sell or dispose of property under seizure, detention or forfeiture, or of any other
necessary expenses incident to the seizure, detention, forfeiture or disposal of the property,
including payment for:
(I) Contract services;
(II) The employment of outside contractors to operate and manage properties or provide
other specialized services necessary to dispose of the properties in an effort to maximize the
return from the properties; and
(III) Reimbursement of any state or local agency for any expenditures made to perform the
functions described in this subparagraph;
(ii) The compromise and payment of valid liens and mortgages against property that has
been forfeited, subject to the discretion of the workers' compensation fund to determine the
validity of the lien or mortgage and the amount of payment to be made, and the employment of
attorneys and other personnel skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or mitigation procedures relating
to property forfeited; and
(iv) The payment of state and local property taxes on forfeited real property that accrued
between the date of the violation giving rise to the forfeiture and the date of the forfeiture order.
(7) Venue for prosecution of any violation of this section shall be either the county in
which the defendant's principal business operations are located or in Kanawha County where the
workers' compensation fund is located.
§61-3-24h. Providing false documentation to workers'
compensation to the Insurance Commissioner or a private carrier of workers' compensation
insurance; altering documents or certificates from workers' compensation; penalties; venue.
(1) Any person, firm, partnership, company, corporation association or medical provider
who submits false documentation to workers' compensation, the Insurance Commissioner or a private carrier of workers' compensation insurance with the intent to defraud the workers'
compensation commission, the Insurance Commissioner or a private carrier of workers'
compensation insurance shall be guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for a term not to exceed one year or fined an amount not to exceed two thousand
five hundred dollars, or both, in the discretion of the court.
(2) Any person, firm, partnership, company, corporation, association or medical provider
who alters, falsifies, defaces, changes or modifies any certificate or other document which would
indicate good standing with the workers' compensation commission, Insurance Commissioner or
private carrier concerning workers' compensation insurance coverage or endorsement by workers'
compensation for medical services shall be guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for a term not to exceed one year or fined an amount not to exceed two
thousand five hundred dollars, or both, in the discretion of the court.
(3) Venue for prosecution of any violation of this section shall be either the county in
which the claimant resides, a defendant's principal business operations are located, or in Kanawha
County where the workers' compensation fund is located."
Delegate Louisos moved to amend the committee amendment on page
three hundred forty-
seven, following line eight, by inserting the following:
"§33-3-2. Qualifications for license.
(a) To qualify for a license to transact insurance in West Virginia an insurer must be
otherwise in compliance with the provisions of this chapter and with its charter, and must be an
incorporated stock insurer, or an incorporated mutual insurer or a reciprocal insurer.
(b) No foreign insurer may be authorized to transact insurance in this state if it is
domiciled in a state that does not have reserve requirements that are equal to or greater than those
required by article seven of this chapter, as applicable to the kind or kinds of insurance transacted
by the insurer, wherever transacted in the United States of America, or which transacts business
anywhere in the United States of America on the assessment plan, the stipulated premium plan or any similar plan.
(c) No insurer may be authorized to transact a kind of insurance in this state unless duly
authorized or qualified to transact such insurance in the state or country of its domicile.
(d) No insurer may be authorized to transact in this state any kind of insurance which is
not defined in section ten, article one of this chapter.
(e) No authority to transact insurance may be granted or continued to any insurer that is
in arrears to the state for fees, licenses, taxes, assessments, fines or penalties accrued on insurance
previously transacted in this state.
(f) No insurer licensed under the provisions of section one, article three, chapter thirty-
three of this code may use credit scoring to set premium rates for applicants for insurance or in
determining premium rates for an insured person or business."
Delegate Varner arose to a point of order as to the germaneness of the amendment offered
by Delegate Louisos, which point of order the Speaker ruled was well taken and stated that the
fundamental purpose of the amendment related to all insurance rates being based upon credit
scoring and the primary amendment to which it applied, recommended by the Committee on
Finance, dealt with privatization of Workers' Compensation insurance coverage.
Delegates Trump, Blair and Frich moved to amend the committee amendment on page
eleven, section four, line eleven, after the word "be", by striking the words "fifty-six" and
inserting in lieu thereof the following: "fifty-one and three tenths"
On page twelve, section four, line seven, after the word "be", by striking the words "four
and seven tenths" and inserting in lieu thereof the following: "two and thirty one hundredths".
On page twelve, section four, line twenty-one, after the word "to", by striking the words
"two and seventy-eight" and inserting in lieu thereof the following: "one and thirty-nine".
On page three hundred and thirty-seven, after section ten-b, after line three, by inserting
a new section, designated section 29-22A-12a, to read as follows:
" §29-22A-12a. Video lottery terminal fee.
Beginning the first day of July, 2005, in addition to the license or permit fees imposed in
section eight of this article, for the privilege of holding a license that authorizes the licensee to
install and operate video lottery terminals, the video lottery licensee shall pay an annual fee of one
thousand dollars per video lottery terminal for which the license is issued. This fee shall initially
be paid at the time the license is issued or renewed for the number of video lottery terminals a
person is authorized to install and operate. Otherwise, this fee shall be due and payable each first
day of July while the person holds the license and the amount of the fee shall be determined by
the number of video lottery terminals the person is licensed to install and operate.
The fees imposed by this section shall be collected by the commission and deposited into
the worker's compensation debt reduction fund created in section five, article two-d, chapter
twenty-three of this code."
On the adoption of the amendment to the amendment, Delegate Trump demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 13), and there
were--yeas 29, nays 66, absent and not voting 5, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Armstead, Azinger, Blair, Border, Canterbury, Carmichael, Evans,
Frederick, Frich, Hall, Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts,
Romine, Rowan, Schadler, Schoen, Sobonya, Stevens, Sumner, Tansill, Trump and Walters.
Absent and Not Voting: Ashley, Duke, Ellem, Fragale and Perdue.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Carmichael moved to amend the committee amendment on page one hundred
fifty-seven, section fifteen, line twenty-six, after the word "so:" by striking the proviso, being the
remainder of line twenty-six through the end of the proviso on page one hundred and fifty-eight,
line five.
The question before the House being the amendment to the amendment, the same was put
and did not prevail.
Delegate Carmichael moves to amend the amendment on page one hundred and sixty-
three, section eighteen, line twenty-six, after the word "than" by striking the word "five", and
inserting in lieu thereof the following: "ten".
On page one hundred and sixty-four, section eighteen, line four, after the word "than" by
striking the word "ten", and inserting in lieu thereof the following: "twenty".
The question before the House being the amendment to the
amendment, the same was put and did not prevail.
Delegates Lane, Sobonya, Porter, Frich, Sumner and Overington moved to amend the
amendment on page six, section two, line seven, by striking all of subdivision (seven) in its
entirety.
On page eight, section three, line seven, after the following language "severance tax," by
striking the following: "additional severance taxes,".
On page nine, after section three, line ten, by striking all of Article 13V in its entirety.
On page three hundred and twenty-five, section ten, line nineteen, by striking all of
subdivision (seven) and inserting in lieu thereof the following:
"(7) Until and including the thirtieth day of June, two thousand five, a licensee shall
receive forty-seven percent of net terminal income, and beginning the first day of July, two
thousand five, a licensee shall receive twenty-seven and one fourth percent of net terminal income
and twenty and one fourth percent of net terminal income shall be deposited into the workers'
compensation debt reduction fund created in section five article two-d, chapter twenty-three of
this code; and".
On the adoption of the amendment to the amendment, Delegate Lane demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 14), and there
were--yeas 29, nays 66, absent and not voting 5, with the yeas and absent and not voting being
as follows:
Yeas: Anderson, Armstead, Azinger, Blair, Border, Canterbury, Carmichael, Evans,
Frederick, Frich, Hall, Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts,
Romine, Rowan, Schadler, Schoen, Sobonya, Stevens, Sumner, Tansill, Trump and Walters.
Absent and Not Voting: Ashley, Duke, Ellem, Fragale and Perdue.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
Delegate Canterbury moved to amend the amendment on page twelve, line twenty-one,
by striking out the words "two and seventy-eight hundredths" and insert in lieu thereof the words
"six hundred forty-four thousandths".
On page one hundred thirty-one, lines seventeen, by striking out the words "ten percent"
and inserting in lieu thereof the words "ten and three-tenths percent".
On page one hundred thirty-one, lines nineteen and twenty, delete the words "forty-five
million" and insert in lieu thereof the words "forty-six million three hundred fifty thousand".
On page one hundred thirty-one, line twenty-three and twenty-four, delete the words "nine
million" and insert in lieu thereof the words "nine million two hundred seventy thousand".
The question before the House being the amendment to the amendment, the same was put
and did not prevail.
Delegate Michael moved to amend the amendment to the bill on page one hundred fifty-
three, line twenty-one, section eleven, following the period, by inserting the following: "The
provisions of this subsection are not effective after the thirty-first day of December, two thousand
six."
The question before the House being the amendment to the amendment, the same was put
and prevailed.
Delegate Michael moves to amend the amendment to the bill on page three hundred
thirty-six, section ten-b, line two, by striking out subdivision nine and inserting in lieu thereof the
following:
"(9) On and after the first day of July, two thousand five, four percent of net terminal income shall be deposited into the workers' compensation debt reduction fund created in section
five, article two-d, chapter twenty-three of this code: Provided, That in any fiscal year when the
amount of money generated by this subdivision together with the total allocation transferred by
the operation of subdivision (9), subsection (c), section ten of this article totals eleven million
dollars, all subsequent distributions under this subdivision (9) shall be deposited in the special
fund established by the licensee, and used for payment of regular purses in addition to other
amounts provided for in article twenty-three, chapter nineteen of this code; and".
The question before the House being the amendment to the amendment, the same was put
and prevailed.
The question now before the House being the committee amendment, as amended, the
same was put and prevailed.
The bill was then read a third time.
(Speaker Pro Tempore Pino, in the Chair)
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 15),
and there were--yeas 87, nays 5, excused from voting 3, absent and not voting 8, with the nays,
excused from voting, and absent and not voting being as follows:
Nays: Armstead, Frederick, Overington, Stevens and Sumner.
Excused From Voting: Mr. Speaker, Mr. Kiss, and Leach, and Michael.
Absent and Not Voting: Ashley, Duke, Ellem, Fragale, and Perdue.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (S. B. 1004) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 1004 -- "A Bill to amend and reenact §4-11A-2 of the Code of West Virginia, 1931,
as amended; to amend and reenact §11-9-2 of said Code; to amend and reenact §11-10-3 of said
Code; to amend said Code by adding thereto a new article, designated §11-13V-1, §11-13V-2,
§11-13V-3, §11-13V-4, §11-13V-5, §11-13V-6, §11-13V-7, §11-13V-8, §11-13V-9,
§11-13V-10, §11-13V-11, §11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15, §11-13V-16 and §11-13V-17; to amend said Code by adding thereto a new section, designated §11-21-96; to
amend and reenact §23-1-1, §23-1-1a, §23-1-1b, §23-1-1c, §23-1-1e, §23-1-11, §23-1-13,
§23-1-14, §23-1-15, §23-1-17 and §23-1-19 of said Code; to amend said Code by adding thereto
a new section, designated §23-1-1g; to amend and reenact §23-2-1, §23-2-1d, §23-2-2, §23-2-3,
§23-2-4, §23-2-5, §23-2-5a and §23-2-9 of said Code; to amend and reenact §23-2A-1 of said
Code; to amend said Code by adding thereto a new article, designated §23-2C-1, §23-2C-2,
§23-2C-3, §23-2C-4, §23-2C-5, §23-2C-6, §23-2C-7, §23-2C-8, §23-2C-9, §23-2C-10,
§23-2C-11, §23-2C-12, §23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16, §23-2C-17, §23-2C-18,
§23-2C-19, §23-2C-20, §23-2C-21, §23-2C-22 and §23-2C-23; to amend said Code by adding
thereto a new article, designated §23-2D-1, §23-2D-2, §23-2D-3, §23-2D-4, §23-2D-5, §23-2D-
5a, §23-2D-6, §23-2D-7, §23-2D-8, §23-2D-9 and §23-2D-10; to amend and reenact §23-3-1 and
§23-3-4 of said Code; to amend and reenact §23-4-1b, §23-4-1c, §23-4-1d, §23-4-1e, §23-4-3,
§23-4-3b, §23-4-4, §23-4-6, §23-4-6a, §23-4-6b, §23-4-7, §23-4-7a, §23-4-7b, §23-4-8, §23-4-8a,
§23-4-8b, §23-4-8c, §23-4-9, §23-4-10, §23-4-11, §23-4-12, §23-4-14, §23-4-15, §23-4-15a,
§23-4-15b, §23-4-16, §23-4-16a, §23-4-17, §23-4-20, §23-4-24 and §23-4-25 of said Code; to
amend and reenact §23-4A-1 and §23-4A-4 of said Code; to amend said Code by adding thereto
a new section, designated §23-4A-9; to amend said Code by adding thereto a new section,
designated §23-4B-9; to amend and reenact §23-4C-5 of said Code; to amend said Code by
adding thereto a new section, designated §23-4C-6; to amend and reenact §23-5-1, §23-5-2,
§23-5-3, §23-5-4, §23-5-5, §23-5-7, §23-5-8, §23-5-9, §23-5-10, §23-5-11, §23-5-12 and
§23-5-15 of said Code; to amend and reenact §29-22A-10 and §29-22A-10b of said Code; to
amend and reenact §33-1-2 and §33-1-10 of said Code; to amend and reenact §33-2-10 and §33-
2-20 of said Code; to amend and reenact §33-41-2, §33-41-8 and §33-41-11 of said Code; and
to amend and reenact §61-3-24e, §61-3-24f, §61-3-24g and §61-3-24h of said Code, all relating
to workers' compensation generally; reducing the unfunded liability of the workers' compensation
fund; providing existing and new revenue sources therefore including new and existing taxes;
providing for dissolution of workers' compensation commission; converting state agency to
employer-owned mutual insurance company; providing for private carriers to offer workers' compensation insurance; providing for employees of the Commission to be exempt from
provisions of civil service coverage; providing for transfer of fraud investigation and prosecution
unit and assets necessary for its operation; providing for transfer of certain Workers'
Compensation Commission functions, rights, responsibilities, employees and assets, to the
Insurance Commissioner and the Industrial Council; providing certain civil remedies to
Commission, mutual company and private carriers; providing for exemption from required
coverage for certain employers who cover their employees under federal Longshore and Harbor
Workers' Compensation Act; providing for payment periods to be other than quarterly; providing
authority to enjoin employers from engaging in business when in default; requiring self-insured
employers to obtain insurance for catastrophic risks; providing for transfer of authority over
certain funds to the Insurance Commissioner; providing for statutory subrogation of medical and
indemnity benefits; providing for expedited appeals to the Office of Judges; authorizing
negotiation for subrogation claims; providing for capital and surplus requirements of employers'
mutual insurance company; providing for election of a board of directors of employers' mutual
insurance company; providing for establishment of claims index to assist insurers; providing for
establishment and administration of certain funds and accounts in state treasury; providing for
adverse risk assignment plan; providing, upon meeting of certain criteria, for issuance of
proclamation by the Governor; providing for preferential placement of any employee laid off after
transfer of functions; providing certain retraining and other benefits; providing for novation of
policies to new employers mutual insurance company; providing for requirements of a basic
policy of workers' compensation insurance; providing for setting of industrial insurance rates;
providing for collection of premiums; providing for transfer of Occupational Pneumoconiosis
Board; providing for limitation of liability for insurers providing workers' compensation
insurance and third-party administrators; providing for transfer of rules to be applicable to the
industrial insurance market; providing for transfer of certain assets to new mutual insurance
company; providing for termination of interdisciplinary examining board and health care advisory
panel; providing for selection of Occupational Pneumoconiosis Board members by Governor;
providing for transfer of authority over Occupational Pneumoconiosis Board; providing for negotiation of final settlement in workers' compensation claims; providing terms of employment
for chief administrative law judge; making technical corrections throughout; providing internal
effective dates; providing for civil administrative and criminal penalties; and making conforming
changes throughout."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 16), and there were--yeas 92,
nays none, excused from voting 3, absent and not voting 5, with the excused from voting and
absent and not voting being as follows:
Excused from voting: Mr. Speaker, Mr. Kiss and Delegates Leach, and Michael.
Absent and Not Voting: Ashley, Duke, Ellem, Fragale, and Perdue.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1004) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
At 12:30 p.m., on motion of Delegate Staton , the House of Delegates recessed until 1:00
p.m., and reconvened at that time.
* * * * * * * *
Afternoon Session
* * * * * * * *
Messages From The Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment,
with amendment, and the passage, as amended, of
S. B. 1002, Relating to reorganization of executive branch of state government.
On motion of Delegate Staton was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by
the Clerk:
On page two of the House amendment, by striking out everything after the article heading and inserting in lieu thereof the following:
§5-1-28. Prerequisites for bond issuance and refunding.
(a) On and after the first day of February, two thousand five, bonds may not be issued or
refunded by the state of West Virginia or any of its agencies, boards or commissions, without the
express written direction of the governor, if:
(1) The ultimate user of the proceeds of the bonds is the state of West Virginia or any of
its agencies, boards, commissions or departments; or
(2) The issuance or refunding of the bonds implicates the state's credit rating.
(b) Prior to any state agency, board or commission participating in any formal presentation
to any nationally recognized rating agency, with respect to the proposed issuance or refunding
of bonds where the ultimate user of the proceeds of the bonds is the state of West Virginia or any
of its agencies, boards, commissions or departments, or the issuance or refunding of the bonds
implicates the state's credit rating, the chair or director of the state agency, board or commission
shall provide written notice to the governor, the President of the Senate and the Speaker of the
House of Delegates, of the date, time and place of the formal presentation at least ten days in
advance.
(c) All bond sale requirements established in this code shall apply unless contrary to the
provisions of this section.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-1. Department of commerce; office of secretary of department of commerce.
(a) The secretary of commerce is the chief executive officer of the department. The
governor shall appoint the secretary, by and with the advice and consent of the Senate, for the
term for which the governor is elected. Any reference in this code to the bureau of commerce
means the department of commerce. Any reference in this code to the commissioner of the
department of commerce means the secretary of commerce. As used in this article, "secretary"
means the secretary of commerce, and "department" means department of commerce.
(b) The department may receive federal funds.
(c) The secretary serves at the will and pleasure of the governor. The annual salary of the
secretary is ninety thousand dollars.
§5B-1-2. Agencies, boards, commissions, divisions and offices comprising the
department of commerce.
The department of commerce consists of the following agencies, boards, commissions,
divisions and offices, including all of the allied, advisory, affiliated or related entities which are
incorporated in and shall be administered as part of the department of commerce:
(1) Division of labor provided in article one, chapter twenty-one of this code, which
includes:
(A) Occupational safety and health review commission provided in article three-a, chapter
twenty-one of this code; and
(B) Board of manufactured housing construction and safety provided in article nine,
chapter twenty-one of this code;
(2) Office of miners' health, safety and training provided in article one, chapter
twenty-two-a of this code. The following boards are transferred to the office of miners' health,
safety and training for purposes of administrative support and liaison with the office of the
governor:
(A) Board of coal mine health and safety and coal mine safety and technical review
committee provided in article six, chapter twenty-two-a of this code;
(B) Board of miner training, education and certification provided in article seven, chapter
twenty-two-a of this code; and
(C) Mine inspectors' examining board provided in article nine, chapter twenty-two-a of
this code;
(3) The West Virginia development office, which includes the division of tourism and the
tourism commission provided in article two, chapter five-b of this code;
(4) Division of natural resources and natural resources commission provided in article
one, chapter twenty of this code;
(5) Division of forestry provided in article one-a, chapter nineteen of this code; and
(6) Geological and economic survey provided in article two, chapter twenty-nine of this
code.
§5B-1-3. Powers and duties of secretary, administrators, division heads and employees.
(a) The secretary controls and supervises the department and is responsible for the work
of each department employee.
(b) The secretary has the power and authority specified in this article, in article two,
chapter five-f of this code, and as otherwise specified in this code.
(c) The secretary may assess agencies, boards, commissions, divisions and offices in the
department for the payment of expenses of the office of the secretary.
(d) The secretary may employ professional staff, including, but not limited to, certified
public accountants, economists and attorneys, assistants and other employees as necessary for the
efficient operation of the department.
(e) The secretary and administrators, division heads and other employees of the
department shall perform their duties as specified in this code and as may be prescribed by the
governor.
§5B-1-4. Reports by secretary.
The secretary shall report annually to the governor concerning the conduct of the
department and make other reports as the governor may require.
§5B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate his or her powers and duties to assistants and employees, but
the secretary is responsible for all official acts of the department.
§5B-1-6. Confidentiality of information.
(a) Information provided to secretary under expectation of confidentiality. -- Information
that would be confidential under the laws of this state when provided to a division, agency, board,
commission or office within the department is confidential when that information is provided to
the secretary or an employee in the office of the secretary. The confidential information may be
disclosed only: (1) To the applicable agency, board, commission or division of the department
to which the information relates; or (2) in the manner authorized by provisions of this code applicable to that agency, board, commission or division. This confidentiality rule is a specific
exemption from disclosure under article one, chapter twenty-nine-b of this code.
(b) Interdepartmental communication of confidential information. -- Notwithstanding any
provision of this code to the contrary, information that is confidential pursuant to this code in the
possession of any division, agency, board, commission or office of the department may be
disclosed to the secretary, or an employee in the office of the secretary. The secretary or
employee shall safeguard the information and may not further disclose the information except
under the same conditions, restrictions and limitations applicable to the administrator of the
agency, board, commission, division or office of the department in whose hands the information
is confidential. This subsection does not require disclosure of individually identifiable health care
or other information that is prohibited from disclosure by federal law. This subsection is a
specific exemption from the disclosure requirements of article one, chapter twenty-nine-b of this
code.
(c) The provisions of this section:
(1) Apply only to information that is actually disclosed by a division, agency, board,
commission or office within a department to the secretary, or an employee in the office of the
secretary, of that department;
(2) Do not authorize disclosure or exempt from the provisions of article one, chapter
twenty-nine-b of this code any confidential information of a division, agency, board, commission
or office within a department to any person or entity other than the secretary, or an employee in
the office of the secretary, of that department;
(3) Apply only to disclosure between a division, agency, board, commission or office
within a department and the secretary, or an employee in the office of the secretary, of that
department.
§5B-1-7. Right of appeal from interference with functioning of agency.
Any governmental entity may appeal to the governor for review upon a showing that
application of the secretary's authority may interfere with the successful functioning of that entity.
The governor's decision controls on appeal.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-2. Council for community and economic development; members, appointment and
expenses; meetings;
appointment and compensation of director.
(a) The council for community and economic development, within the West Virginia
development office, is a body corporate and politic, constituting a public corporation and
government instrumentality. Membership on the council consists of:
(1) No less than nine nor more than eleven members to be appointed by the governor, with
the advice and consent of the Senate, representing community or regional interests, including
economic development, commerce, banking, manufacturing, the utility industry, the mining
industry, the telecommunications/data processing industry, small business, labor, tourism or
agriculture. Provided, That One member appointed pursuant to this subsection One such
member shall be a member of a regional planning and development council. Of the members
representing community or regional interests there shall be at least Of these members at least
three members from shall represent each congressional district of the state and they shall be
appointed appointments shall be made in such a manner as to provide a broad geographical
distribution of members of the council;
(2) Four at-large members to be appointed by the governor with the advice and consent
of the Senate;
(3) One member to be appointed by the governor from a list of two persons recommended
by the speaker of the House of Delegates: Provided, That on and after the effective date of the
amendment and reenactment of this section in the year two thousand three, this subdivision shall
be of no force or effect and the term of the member previously appointed pursuant to this
subdivision shall expire;
(4) One member to be appointed by the governor from a list of two persons recommended
by the president of the Senate: Provided, That on and after the effective date of the amendment
and reenactment of this section in the year two thousand three, this subdivision shall be of no
force or effect and the term of the member previously appointed pursuant to this subdivision shall
expire;
(5) The president of the West Virginia economic development council; and
(4)(6) The chair, or his or her designee, of the tourism commission created pursuant to the
provisions of section eight of this article.
In addition, the president of the Senate and the speaker of the House of Delegates, or his
or her designee, shall serve as ex officio nonvoting members.
(b) The governor shall appoint appoints the appointed members of the council to four-year
terms. Any A member whose term has expired shall continues to serve until his or her the
successor has been is duly appointed and qualified. Any person appointed to fill a vacancy shall
serve only for the unexpired term. Except as otherwise provided in this section, any member is
eligible for reappointment. In cases of any vacancy in the office of a member, the vacancy shall
be filled by A vacancy is filled by appointment by the governor in the same manner as the original
appointment. A member appointed to fill a vacancy serves for the remainder of the unexpired
term.
(c) Members of the council are not entitled to compensation compensated for services
performed as members, but are entitled to reimbursement for all receive reasonable and necessary
expenses actually incurred in the performance of their duties in a manner consistent with
guidelines of the travel management office of the department of administration. A majority of
the voting members constitute a quorum for the purpose of conducting business. The council
shall elect its chair for a term to run concurrent with the term of office of the member elected as
chair. The chair is eligible for successive terms in that position.
(d) The council governor shall employ appoint an executive director of the West Virginia
development office who is qualified for the position by reason of his or her extensive education
and experience in the field of professional economic development. The executive director shall
serve at the will and pleasure of the council governor. The salary of the director shall annually
be fixed by the council. The director shall have overall management responsibility and
administrative control and supervision within the West Virginia development office. It is the
intention of the Legislature that the director provide professional and technical expertise in the
field of professional economic and tourism development in order to support the policy-making functions of the council, but that the director not be a public officer, agent, servant or contractor
within the meaning of section thirty-eight, article VI of the constitution of West Virginia and not
be a statutory officer within the meaning of section one, article two, chapter five-f of this code.
Subject to the provisions of the contract provided in section four of this article, the director may
hire and fire economic development representatives employed pursuant to the provisions of
section five of this article.
(e) The executive director of the West Virginia development office may promulgate rules
to carry out the purposes and programs of the West Virginia development office to include
generally the programs available, and the procedure and eligibility of applications relating to
assistance under the programs. These rules are not subject to the provisions of chapter
twenty-nine-a of this code, but shall be filed with the secretary of state. The executive director
may adopt any of the rules previously promulgated by the council for community and economic
development.
§5B-2-3. Powers and duties of council for community and economic development.
(a) The council for community and economic development shall enhance economic
growth and development through the development of a comprehensive economic development
strategy for West Virginia. "Comprehensive economic development strategy" means a plan that
outlines strategies and activities designed to continue, diversify or expand the economic base of
the state as a whole; create jobs; develop a highly skilled work force; facilitate business access
to capital, including venture capital; advertise and market the resources offered by the state with
respect to the needs of business and industry; facilitate cooperation among local, regional and
private economic development enterprises; improve infrastructure on a state, regional and
community level; improve the business climate generally; and leverage funding from sources
other than the state, including federal and private sources.
(b) The council shall develop a certified development community program and provide
funding assistance to the participating economic development corporations or authorities through
a matching grant program. The council shall establish criteria for awarding matching grants to
the corporations or authorities within the limits of funds appropriated by the Legislature for the program. The matching grants to corporations or authorities eligible under the criteria shall be
in the amount of thirty thousand dollars for each fiscal year, if sufficient funds are appropriated
by the Legislature. The West Virginia development office shall recognize existing county,
regional or multicounty corporations or authorities where appropriate.
In developing its plan, the West Virginia development office shall consider resources and
technical support available through other agencies, both public and private, including, but not
limited to, the state college and university systems; the West Virginia housing development fund;
the West Virginia economic development authority; the West Virginia parkways, economic
development and tourism authority; the West Virginia round table; the West Virginia chamber
of commerce; regional planning and development councils; regional partnership for progress
councils; and state appropriations.
(c) The council shall promulgate rules to carry out the purposes and programs of the West
Virginia development office to include generally the programs available, and the procedure and
eligibility of applications relating to assistance under the programs. These rules are not subject
to the provisions of chapter twenty-nine-a of this code, but shall be filed with the secretary of
state. Any new rules promulgated by the council shall be promptly submitted to the joint
commission created in article three of this chapter. The current rules shall be submitted to the
joint commission within thirty days of the effective date of this section.
§5B-2-8. Division of tourism and tourism commission created; members, appointment and
expenses.
(a) There is hereby created within the West Virginia development office the division of
tourism and an independent tourism commission, which is a body corporate and politic,
constituting a public corporation and government instrumentality. Membership on the council
shall consist The commission consists of thirteen members:
(1) Nine members to be appointed by the governor, with the advice and consent of the
Senate, representing participants in the state's tourism industry. At least seven of the members
shall be from the private sector. Of the nine members so appointed, one shall represent a
convention and visitors bureau and another shall be a member of a convention and visitors bureau. In making the appointments the governor may select from a list provided by the West
Virginia hospitality and travel association of qualified applicants. Of the nine members so
appointed, no more than three shall be from each congressional district within the state and shall
be appointed to provide the broadest geographic distribution which is feasible;
(2) One member to be appointed by the governor from the membership of the council for
community and economic development created pursuant to the provisions of section two of this
article;
(3) One member to be appointed by the governor to represent public sector nonstate
participants in the tourism industry within the state;
(4) The secretary of transportation or his or her designee, ex officio; and
(5) The director of the division of natural resources or his or her designee, ex officio.
(b) Each member appointed by the governor shall serve staggered terms of four years.
Any member whose term has expired shall serve until his or her successor has been appointed.
Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member shall
be eligible for reappointment. In cases of vacancy in the office of member, such vacancy shall
be filled by the governor in the same manner as the original appointment.
(c) Members of the commission shall not be entitled to compensation for services
performed as members. A majority of these members shall constitute a quorum for the purpose
of conducting business. The governor shall appoint a chair of the commission for a term to run
concurrent with the term of the office of the member appointed to be the chair. The chair is
eligible for successive terms in that position.
§5B-2-14. Certified development community program.
The certified development community program is continued and is transferred to,
incorporated in and administered as a program of the West Virginia development office. The
program shall provide funding assistance to the participating economic development corporations
or authorities through a matching grant program. The West Virginia development office shall
establish criteria for awarding matching grants to the corporations or authorities within the limits
of funds appropriated by the Legislature for the program. The matching grants to eligible corporations or authorities are in the amount of thirty thousand dollars for each fiscal year, if
sufficient funds are appropriated by the Legislature. The West Virginia development office shall
recognize existing county, regional or multicounty corporations or authorities where appropriate.
In developing its plan, the West Virginia development office shall consider resources and
technical support available through other agencies, both public and private, including, but not
limited to, the state college and university systems; the West Virginia housing development fund;
the West Virginia economic development authority; the West Virginia parkways, economic
development and tourism authority; the West Virginia round table; the West Virginia chamber
of commerce; regional planning and development councils; regional partnership for progress
councils; and state appropriations.
ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.
§5B-2E-3. Definitions.
As used in this article, unless the context clearly indicates otherwise:
(1) "Agreement" means a tourism development agreement entered into, pursuant to section
six of this article, between the development office and an approved company with respect to a
tourism development project.
(2) "Approved company" means any eligible company approved by the development
office pursuant to section five of this article seeking to undertake a tourism development project.
(3) "Approved costs" means:
(A) Included costs:
(i) Obligations incurred for labor and to vendors, contractors, subcontractors, builders,
suppliers, delivery persons and material persons in connection with the acquisition, construction,
equipping, installation or expansion of a tourism development project;
(ii) The costs of acquiring real property or rights in real property and any costs incidental
thereto;
(iii) The cost of contract bonds and of insurance of all kinds that may be required or
necessary during the course of the acquisition, construction, equipping, installation or expansion
of a tourism development project which is not paid by the vendor, supplier, delivery person, contractor or otherwise provided;
(iv) All costs of architectural and engineering services, including, but not limited to:
Estimates, plans and specifications, preliminary investigations and supervision of construction,
installation, as well as for the performance of all the duties required by or consequent to the
acquisition, construction, equipping, installation or expansion of a tourism development project;
(v) All costs required to be paid under the terms of any contract for the acquisition,
construction, equipping, installation or expansion of a tourism development project;
(vi) All costs required for the installation of utilities, including, but not limited to: Water,
sewer, sewer treatment, gas, electricity, communications and off-site construction of utility
extensions to the boundaries of the real estate on which the facilities are located, all of which are
to be used to improve the economic situation of the approved company in a manner that allows
the approved company to attract persons; and
(vii) All other costs comparable with those described in this subdivision;
(B) Excluded costs. -- The term "approved costs" does not include any portion of the cost
required to be paid for the acquisition, construction, equipping and installation or expansion of
a tourism development project that is financed with governmental incentives, grants or bonds or
for which the eligible taxpayer elects to qualify for other tax credits, including, but not limited
to, those provided by article thirteen-q, chapter eleven of this code.
(4) "Base tax revenue amount" means the average monthly amount of consumer sales and
service tax collected by an approved company, based on the twelve-month period ending
immediately prior to the opening of a new tourism development project for business, as certified
by the state tax commissioner.
(5) "Council" means the council for community and economic development as provided
in article two of this chapter.
(6) "Development office" means the West Virginia development office as provided in
article two of this chapter.
(7) (6) "Crafts and products center" means a facility primarily devoted to the display,
promotion and sale of West Virginia products and at which a minimum of eighty percent of the sales occurring at the facility are of West Virginia arts, crafts or agricultural products.
(8) (7) "Eligible company" means any corporation, limited liability company, partnership,
limited liability partnership, sole proprietorship, business trust, joint venture or any other entity
operating or intending to operate a tourism development project, whether owned or leased, within
the state that meets the standards required by the council development office. An eligible
company may operate or intend to operate directly or indirectly through a lessee.
(9) (8) "Entertainment destination center" means a facility containing a minimum of two
hundred thousand square feet of building space adjacent or complementary to an existing tourism
attraction, an approved tourism development project or a major convention facility and which
provides a variety of entertainment and leisure options that contain at least one major theme
restaurant and at least three additional entertainment venues, including, but not limited to, live
entertainment, multiplex theaters, large-format theaters, motion simulators, family entertainment
centers, concert halls, virtual reality or other interactive games, museums, exhibitions or other
cultural and leisure time activities. Entertainment and food and drink options shall occupy a
minimum of sixty percent of total gross area, as defined in the application, available for lease and
other retail stores shall occupy no more than forty percent of the total gross area available for
lease.
(10) (9) "Final approval" means the action taken by the council executive director of the
development office qualifying the eligible company to receive the tax credits provided in this
article.
(11) (10) "Preliminary approval" means the action taken by the executive director of the
development office conditioning final approval. by the council
(12) (11) "State agency" means any state administrative body, agency, department,
division, board, commission or institution exercising any function of the state that is not a
municipal corporation or political subdivision.
(13) (12) "Tourism attraction" means a cultural or historical site, a recreation or
entertainment facility, an area of natural phenomenon or scenic beauty, a West Virginia crafts and
products center or an entertainment destination center. A tourism development project or attraction shall does not include any of the following:
(A) Lodging facilities facility, unless:
(i) The facilities constitute facility constitutes a portion of a tourism development project
and represent represents less than fifty percent of the total approved cost of the tourism
development project, or the facilities are facility is to be located on recreational property owned
or leased by the state or federal government and the facilities have facility has received prior
approval from the appropriate state or federal agency.
(ii) The facilities involve facility involves the restoration or rehabilitation of a structure
that is listed individually in the national register of historic places or are is located in a national
register historic district and certified by the state historic preservation officer as contributing to
the historic significance of the district, and the rehabilitation or restoration project has been
approved in advance by the state historic preservation officer; or
(iii) The facilities involve facility involves the construction, reconstruction, restoration,
rehabilitation or upgrade of a full-service lodging facility or the reconstruction, restoration,
rehabilitation or upgrade of an existing structure into a full-service lodging facility having not less
than five hundred guest rooms, with construction, reconstruction, restoration, rehabilitation or
upgrade costs exceeding ten million dollars;
(B) Facilities that are A facility that is primarily devoted to the retail sale of goods, other
than an entertainment destination center, a West Virginia crafts and products center or a tourism
development project where the sale of goods is a secondary and subordinate component of the
project; and
(C) Recreational facilities that do A recreational facility that does not serve as a likely
destination where individuals who are not residents of the state would remain overnight in
commercial lodging at or near the new tourism development project or existing attraction.
(14) (13) "Tourism development project" means the acquisition, including the acquisition
of real estate by a leasehold interest with a minimum term of ten years, construction and
equipping of a tourism attraction; the construction and installation of improvements to facilities
necessary or desirable for the acquisition, construction, installation or expansion of a tourism attraction, including, but not limited to, surveys, installation of utilities, which may include water,
sewer, sewage treatment, gas, electricity, communications and similar facilities; and off-site
construction of utility extensions to the boundaries of the real estate on which the facilities are
located, all of which are to be used to improve the economic situation of the approved company
in a manner that allows the approved company to attract persons.
(15) (14) "Tourism development project tax credit" means the tourism development
project tax credit allowed by section seven of this article.
§5B-2E-4. Additional powers and duties of the development office.
The development office has the following powers and duties, in addition to those set forth
in this case, necessary to carry out the purposes of this article including, but not limited to:
(1) Make preliminary and final approvals of all applications for tourism development
projects and enter into agreements pertaining to tourism development projects with approved
companies;
(2) Employ fiscal consultants, attorneys, appraisers and other agents as the executive
director of the development office finds necessary or convenient for the preparation and
administration of agreements and documents necessary or incidental to any tourism development
project; and
(3) Impose and collect fees and charges in connection with any transaction.
§5B-2E-5. Tourism development project application; evaluation standards; consulting
services; preliminary and final approval of projects; limitation of
amount annual tourism development project tax credit.
(a) Each eligible company that seeks to qualify a tourism development project for the tax
credit provided by this article must file a written application for approval of the project with the
development office.
(b) With respect to each eligible company making an application to the development
office for the tourism development project tax credit, the development office shall make inquiries
and request documentation, including a completed application, from the applicant that shall
include: A description and location of the project; capital and other anticipated expenditures for the project and the sources of funding therefor; the anticipated employment and wages to be paid
at the project; business plans that indicate the average number of days in a year in which the
project will be in operation and open to the public; and the anticipated revenues and expenses
generated by the project.
(c) Based upon a review of the application and additional documentation provided by the
eligible company, if the executive director of the development office determines that the applicant
and the tourism development project may reasonably satisfy the criteria for final approval set
forth in subsection (d) of this section, then the director of the development office may grant a
preliminary approval of the applicant and the tourism development project.
(d) After preliminary approval by the executive director of the development office, the
development office shall engage the services of a competent consulting firm or firms to analyze
the data made available by the applicant and to collect and analyze additional information
necessary to determine that, in the independent judgment of the consultant, the tourism
development project:
(1) Likely will attract at least twenty-five percent of its visitors from outside of this state;
(2) Will have approved costs in excess of one million dollars;
(3) Will have a significant and positive economic impact on the state considering, among
other factors, the extent to which the tourism development project will compete directly with or
complement existing tourism attractions in the state and the amount by which increased tax
revenues from the tourism development project will exceed the credit given to the approved
company;
(4) Will produce sufficient revenues and public demand to be operating and open to the
public for a minimum of one hundred days per year; and
(5) Will provide additional employment opportunities in the state.
(e) The applicant shall pay to the development office, prior to the engagement of the
services of a competent consulting firm or firms pursuant to the provisions of subsection (d) of
this section, for the cost of the consulting report or reports and shall cooperate with the consulting
firm or firms to provide all of the data that the consultant considers necessary or convenient to make its determination under subsection (d) of this section.
(f) The executive director of the development office, within thirty days following receipt
of the consultant's report or reports, shall decide whether to recommend the tourism development
project to the council for final approval. If the director of the development office recommends
the tourism development project to the council, he or she shall submit the project application, the
consulting report or reports and other information regarding the project to the council.
(g) The council shall review all applications properly submitted to the council for
conformance to statutory and regulatory requirements, review, in light of the consultant's report
or reports, the reasonableness of the project's budget and timetable for completion, and, in
addition to the criteria for final approval set forth in subsection (d) of this section, the following
criteria:
(1) The quality of the proposed tourism development project and how it addresses
economic problems in the area in which the tourism development project will be located;
(2) Whether there is substantial and credible evidence that the tourism development
project is likely to be started and completed in a timely fashion;
(3) Whether the tourism development project will, directly or indirectly, improve the
opportunities in the area where the tourism development project will be located for the successful
establishment or expansion of other industrial or commercial businesses;
(4) Whether the tourism development project will, directly or indirectly, assist in the
creation of additional employment opportunities in the area where the tourism development
project will be located;
(5) Whether the project helps to diversify the local economy;
(6) Whether the project is consistent with the goals of this article;
(7) Whether the project is economically and fiscally sound using recognized business
standards of finance and accounting; and
(8) The ability of the eligible company to carry out the tourism development project.
(h) (g) The council development office may establish other criteria for consideration when
approving the applications.
(i) (h) The council executive director of the development office may give its final approval
to the applicant's application for a tourism development project and may grant to the applicant
the status of an approved company: Provided, That the total amount of tourism development
project tax credits for all approved companies may not exceed one million five hundred thousand
dollars each calendar year. The council executive director of the development office shall act to
approve or not approve any application within thirty sixty days following the receipt of the
application consultant's report or reports or the receipt of any additional information requested
by the council development office, whichever is later. The decision by the executive director of
the development office and the council is final.
§5B-2E-6. Agreement between development office and approved company.
The development office, upon grant of the council's final approval of an application by
the executive director, may enter into an agreement with any approved company with respect to
its tourism development project. The terms and provisions of each agreement shall include, but
not be limited to:
(1) The amount of approved costs of the project that qualify for the sales tax credit,
provided for in section seven of this article. Within three months of the completion date, the
approved company shall document the actual cost of the project through a certification of the
costs to the development office by an independent certified public accountant acceptable to the
development office; and
(2) A date certain by which the approved company shall have completed and opened the
tourism development project to the public. Any approved company that has received final
approval may request and the development office may grant an extension or change, however, in
no event shall the extension exceed three years from the date of final approval to the completion
date specified in the agreement with the approved company.
§5B-2E-9. Promulgation of rules.
The council executive director of the development office may promulgate rules to
implement the tourism development project application approval process and to describe the
criteria and procedures it has established in connection therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but shall be filed with the secretary of state.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-4. West Virginia public energy authority continued; West Virginia public energy
board continued; organization of authority and board; appointment of
board members; term, compensation and expenses; director of authority;
appointment.
(a)The West Virginia public energy authority heretofore created is hereby is
continued. The authority is a governmental instrumentality of the state and a body corporate. The
exercise by the authority of the powers conferred by this article and the carrying out of its
purposes and duties are determined to be essential governmental functions and for a public
purpose.
(b)The authority shall be is controlled, managed and operated by a nine seven
member board known as the West Virginia public energy authority board, which is hereby
continued. The seven members include the governor or designee; the secretary of the department
of environmental protection or designee; the director of the economic development authority or
designee; and four members representing the general public. The nine members of the board shall
be The public members are appointed by the governor, by and with the advice and consent of the
Senate, for terms of one, two, three and four years, respectively. Two members shall be appointed
to serve a term of two years; two members shall be appointed to serve a term of three years; two
members shall be appointed to serve a term of four years; two members shall be appointed to
serve a term of five years; and one member shall be appointed to serve a term of six years.
(c) On the thirty-first day of March, two thousand five, the terms of all appointed
members, appointed prior to the amendment of this section during the first extraordinary session
of the seventy-seventh Legislature, expire. Not later than the thirty-first day of March, two
thousand five, the governor appoints the public members required in subsection (b) of this
section, to assume the duties of the office immediately, pending the advice and consent of the
Senate.
(d) The successor of each such appointed member shall be is appointed for a four-year
term. term of five years, except that any person appointed to fill a vacancy occurring prior to the
expiration of the term for which his predecessor was appointed shall be appointed only for the
remainder of such term A vacancy is filled by appointment by the governor in the same manner
as the original appointment. A member appointed to fill a vacancy serves for the remainder of
the unexpired term. Each board member shall serve serves until a until the appointment of his
successor is appointed.
(e) No more than five three of the public board members shall may at any one time belong
to the same political party. No more than four two public members of the board shall may be
employed by or associated with any industry this the authority is empowered to affect. Two
members of the board One member shall be persons who have a person with significant
experience in the advocacy of environmental protection. Board members may be reappointed to
serve additional terms.
(f) All members of the board shall be citizens of the state. Before entering upon his or her
engaging in their duties, each member of the board shall comply with the requirements of article
one, chapter six of this code and give bond in the sum of twenty-five thousand dollars in the
manner provided in article two, chapter six of this code. The governor may remove any board
member for cause as provided in article six, chapter six of this code.
Annually (g) The governor serves as chair. The board shall elect annually elects one of
its public members as chairman and another as vice chairman vice chair, and shall appoint
appoints a secretary-treasurer who need not be a member of the board. Five
(h) Four members of the board shall constitute a quorum and the affirmative vote of the
majority of members present at any meeting shall be is necessary for any action taken by vote of
the board. No A vacancy in the membership of the board shall does not impair the rights of a
quorum by such vote to exercise all the rights and perform all the duties of the board and the
authority.
(i) The person appointed as secretary-treasurer, including a board member if he is so
appointed, shall give bond in the sum of fifty thousand dollars in the manner provided in article two, chapter six of this code.
(j) Each public member of the board shall receive receives the same compensation and
expense reimbursement as is paid to members of the Legislature for their interim duties as
recommended by the citizens legislative compensation commission and authorized by law for
each day or portion thereof engaged in the discharge of official duties. All such expenses incurred
by the board shall be shall be paid in a manner consistent with guidelines of the travel
management office of the department of administration and are payable solely from funds of the
authority or from funds appropriated to the authority for such purpose by the Legislature. and no
Liability or obligation shall be is not incurred by the authority beyond the extent to which moneys
are available from funds of the authority or from such appropriations.
There shall also be a director of the authority appointed by
(k) The governor may appoint an executive director, with the advice and consent of the
Senate, who shall serve serves at the governor's will and pleasure who shall be. The director is
responsible for managing and administering the daily functions of the authority and for
performing any and all other functions necessary or helpful to the effective functioning operation
of the authority. together with all other functions and powers as may be delegated by the board.
§5D-1-5. Powers, duties and responsibilities of authority generally; termination of certain
powers.
The West Virginia public energy authority is hereby granted has and may exercise all
powers necessary or appropriate to carry out and effectuate execute its corporate purpose. The
authority shall have the power and capacity to may:
(1) Adopt, and from time to time amend and repeal:
Bylaws bylaws necessary and proper for the regulation of its affairs and the conduct of
its business and rules to implement and make effective its powers and duties, such rules to be
promulgated in accordance with the provisions of chapter twenty-nine-a of this code.
(2) Adopt and use an official seal and alter the same at pleasure.
(3) Maintain a principal office and, if necessary, regional suboffices at locations properly
designated or provided.
(4) Sue and be sued in its own name and plead and be impleaded in its own name, and
particularly to enforce the obligations and covenants made under this article. Any actions against
the authority shall be brought in the circuit court of Kanawha County.
(5) Foster, encourage and promote the mineral development industry. The authority is
encouraged to maximize the use of the West Virginia mineral development industry, but is not
prohibited from utilizing non-state mineral resources.
(6) Represent the state with respect to national initiatives concerning the mineral
development industry, and international marketing activities affecting the mineral development
industry.
(7) Engage in strategic planning to enable the state to cope with changes affecting or
which may affect the mineral development industry.
(8) Acquire, whether by purchase, construction, gift, lease, lease-purchase or otherwise,
any electric power project or natural gas transmission project. In the event that an electric power
project to be constructed pursuant to this article is designed to utilize coal wastes for the
generation of electricity or the production of other energy, such project shall also be capable of
using coal as its primary energy input: Provided, That it shall be demonstrated to the authority's
satisfaction that quantities of coal wastes exist in amounts sufficient to provide energy input for
such project for the term of the bonds or notes issued by the authority to finance the project and
are accessible to the project.
(9) Lease, lease with an option by the lessee to purchase, sell, by installment sale or
otherwise, or otherwise dispose of, to persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for such rentals or amounts and upon
such terms and conditions as the public energy authority board may deem advisable.
(10) Finance one or more electric power projects or natural gas transmission projects by
making secured loans to persons other than governmental agencies to provide funds for the
acquisition, by purchase, construction or otherwise, of any such project or projects.
(11) Issue bonds for the purpose of financing the cost of acquisition and construction of
one or more electric power projects or natural gas transmission projects or any additions, extensions or improvements thereto which will be sold, leased with an option by the lessee to
purchase, leased or otherwise disposed of to persons other than governmental agencies or for the
purpose of loaning the proceeds thereof to persons other than governmental agencies for the
acquisition and construction of said projects or both. Such bonds shall be issued and the payment
of such bonds secured in the manner provided by the applicable provisions of sections seven,
eight, nine, ten, eleven, twelve, thirteen and seventeen, article two-c, chapter thirteen of this code:
Provided, That the principal and interest on such bonds shall be payable out of the revenues
derived from the lease, lease with an option by the lessee to purchase, sale or other disposition
of or from loan payments in connection with the electric power project or natural gas transmission
project for which the bonds are issued, or any other revenue derived from such electric power
project or natural gas transmission project.
(12) In the event that the electric power project or natural gas transmission project is to
be owned by a governmental agency, apply to the economic development authority for the
issuance of bonds payable solely from revenues as provided in article fifteen, chapter thirty-one
of this code: Provided, That the economic development authority shall not issue any such bonds
except by an act of general law: Provided, however, That the authority shall require that in the
construction of any such project, prevailing wages shall be paid as part of a project specific
agreement which also takes into account terms and conditions contained in the West Virginia -
Ohio valley market retention and recovery agreement or a comparable agreement.
(13) Acquire by gift or purchase, hold and dispose of real and personal property in the
exercise of its powers and the performance of its duties as set forth in this article.
(14) Acquire in the name of the state, by purchase or otherwise, on such terms and in such
manner as it deems proper, or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such real property or parts thereof or rights therein,
rights-of-way, property, rights, easements and interests it deems necessary for carrying out the
provisions of this article, and compensation shall be paid for public or private lands so taken; and
the authority may sell any of the real property or parts thereof or rights therein, rights-of-way,
property, rights, easements and interests acquired hereunder in such manner and upon such terms and conditions as the authority deems proper: Provided, That if the authority determines that land
or an interest therein acquired by the authority through the exercise of the power of eminent
domain for the purpose of this article is no longer necessary or useful for such purposes, and if
the authority desires to sell such land or interest therein, the authority shall first offer to sell such
land or interest to the owner or owners from whom it was acquired, at a price equal to its fair
market value: Provided, however, That if the prior owner or owners shall decline to reacquire the
land or interest therein, the authority shall be authorized to dispose of such property by direct sale,
auction, or competitive bidding. In no case shall such land or an interest therein acquired under
this subdivision be sold for less than its fair market value. This article does not authorize the
authority to take or disturb property or facilities belonging to any public utility or to a common
carrier, which property or facilities are required for the proper and convenient operation of such
public utility or common carrier, except for the acquisition of easements or rights-of-way which
will not unreasonably interfere with the operation of the property or facilities of such public utility
or common carrier, and in the event of the taking or disturbance of property or facilities of public
utility or common carrier, provision shall be made for the restoration, relocation or duplication
of such property or facilities elsewhere at the sole cost of the authority.
The term "real property" as used in this article is defined to include lands, structures,
franchises and interests in land, including lands under water and riparian rights, and any and all
other things and rights usually included within the said term, and includes also any and all
interests in such property less than full title, such as easements, rights-of-way, uses, leases,
licenses and all other incorporeal hereditaments and every estate, interest or right, legal or
equitable, including terms for years and liens thereon by way of judgments, mortgages or
otherwise, and also all claims for damages for such real estate.
For the purposes of this section "fair market value" shall be determined by an appraisal
made by an independent person or firm chosen by the authority. The appraisal shall be performed
using the principles contained in the "Uniform Appraisal Standards for Federal Land
Acquisitions" published under the auspices of the Interagency Land Acquisition Conference,
United States Government Printing Office, 1972.
(15) Make and enter into all contracts and agreements and execute all instruments
necessary or incidental to the performance of its duties and the execution of its powers: Provided,
That if any electric power project or natural gas transmission project is to be constructed by a
person other than a governmental agency, and with whom the authority has contracted to lease,
sell or finance such project upon its completion, then the authority shall not be required to comply
with the provisions of article twenty-two, chapter five of this code requiring the solicitation of
competitive bids for the construction of such a project.
(16) Employ managers, superintendents and other employees, and retain or contract with
consulting engineers, financial consultants, accountants, architects, attorneys, and such other
consultants and independent contractors as are necessary in its judgment to carry out the
provisions of this article, and fix the compensation or fees thereof. All expenses thereof shall be
payable solely from the proceeds of bonds issued by the economic development authority, from
the proceeds of bonds issued by or loan payments, lease payments or other payments received by
the authority, from revenues and from funds appropriated for such purpose by the Legislature.
(17) Receive and accept from any federal agency, or any other source, grants for or in aid
of the construction of any project or for research and development with respect to electric power
projects, natural gas transmission projects or other energy projects, and receive and accept aid or
contribution from any source of money, property, labor or other things of value to be held, used
and applied only for the purpose for which such grants and contributions are made.
(18) Purchase property coverage and liability insurance for any electric power project or
natural gas transmission project or other energy project and for the principal office and suboffices
of the authority, insurance protecting the authority and its officers and employees against liability,
if any, for damage to property or injury to or death of persons arising from its operations and any
other insurance which may be provided for under a resolution authorizing the issuance of bonds
or in any trust agreement securing the same.
(19) Charge, alter and collect transportation fees and other charges for the use or services
of any natural gas transmission project as provided in this article.
(20) Charge and collect fees or other charges from any energy project undertaken as a result of this article.
(21) When the electric power project is owned and operated by the authority, charge
reasonable fees in connection with the making and providing of electric power and the sale
thereof to corporations, states, municipalities or other entities in the furtherance of the purposes
of this article.
(22) Purchase and sell electricity or other energy produced by an electric power project
in and out of the state of West Virginia.
(23) Enter into wheeling contracts for the transmission of electric power over the
authority's or another party's lines.
(24) Make and enter into contracts for the construction of a project facility and joint
ownership with another utility, and the provisions of this article shall not constrain the authority
from participating as a joint partner therein.
(25) Make and enter into joint ownership agreements.
(26) Establish or increase reserves from moneys received or to be received by the authority
to secure or to pay the principal of and interest on the bonds issued by the economic development
authority pursuant to the provisions of article fifteen, chapter thirty-one of this code or bonds
issued by the authority.
(27) Broker the purchase of natural gas for resale to end-users: Provided, That whenever
there are local distribution company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by the public service commission
of West Virginia.
(28) Engage in market research, feasibility studies, commercial research, and other studies
and research pertaining to electric power projects and natural gas transmission projects or any
other functions of the authority pursuant to this article.
(29) Enter upon any lands, waters and premises in the state for the purpose of making
surveys and examinations as it may deem necessary or convenient for the purpose of this article,
and such entry shall not be deemed a trespass, nor shall an entry for such purposes be deemed an
entry under any condemnation proceedings which may be then pending, and the authority shall make reimbursement for any actual damages resulting to such lands, waters and premises as a
result of such activities.
(30) Participate in any reorganization proceeding pending pursuant to the United States
Code (being the act of Congress establishing a uniform system of bankruptcy throughout the
United States, as amended) or any receivership proceeding in a state or federal court for the
reorganization or liquidation of a responsible buyer or responsible tenant. The authority may file
its claim against any such responsible buyer or responsible tenant in any of the foregoing
proceedings, vote upon any question pending therein, which requires the approval of the creditors
participating in any reorganization proceeding or receivership, exchange any evidence of such
indebtedness for any property, security or evidence of indebtedness offered as a part of the
reorganization of such responsible buyer or responsible tenant or of any entity formed to acquire
the assets thereof and may compromise or reduce the amount of any indebtedness owing to it as
a part of any such reorganization.
(31) Make or enter into management contracts with a second party or parties to operate
any electric power project or any gas transmission project and associated facilities, or other
related energy project, either during construction or permanent operation.
(32) Do all acts necessary and proper to carry out the powers expressly granted to the
authority in this article.
(33) Nothing herein shall be construed to permit the transportation of gas produced
outside of this state through a natural gas transmission project.
(34) The authority shall, after consultation with other agencies of state government having
environmental regulatory functions, promulgate legislative rules pursuant to chapter
twenty-nine-a of this code, to establish standards and principles to be applied to all projects in
assessing the effects of projects on the environment: Provided, That when a proposed project
requires an environmental impact statement pursuant to the National Environmental Policy Act
of 1969, a copy of the environmental impact statement shall be filed with the authority and be
made available prior to any final decision or final approval of any project and prior to the
conducting of any public hearings regarding the project, and in any such case, no assessment pursuant to the legislative rule need be made.
(35) The power and authority granted to the public energy authority pursuant to this
section and section six of this article to initiate, acquire, construct, finance or issue bonds for
electric power projects and transmission facilities, or to exercise the power of eminent domain
with respect to any project, shall terminate on the effective date of this section: Provided, That
nothing herein shall be construed to affect the validity of any act of the public energy authority
prior to the effective date of this section or to impair the rights of bondholders with respect to
bonds or other evidence of indebtedness issued prior to the effective date of this section.
Following the effective date of this section, the public energy authority may exercise any power
expressly granted pursuant to this section or section six of this article with respect to any project
or facility previously constructed or acquired, any existing contractual obligations, and any
outstanding bonded indebtedness.
§5D-1-24. Continuation of board.
The West Virginia public energy authority board shall continue to exist, pursuant to the
provisions of article ten, chapter four of this code, until the first day of July, two thousand ten,
unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-2. Executive departments created; offices of secretary created.
(a) There are created, within the executive branch of the state government, the following
departments:
(1) Department of administration;
(2) Department of education and the arts;
(3) Department of environmental protection;
(4) Department of health and human resources;
(5) Department of military affairs and public safety;
(6) Department of tax and revenue; and
(7) Department of transportation; and
(8) Department of commerce.
(b) Each department will be headed by a secretary appointed by the governor with the
advice and consent of the Senate. Each secretary serves at the will and pleasure of the governor.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter five of this code;
(2) Public employees insurance agency and public employees insurance agency advisory
board provided for in article sixteen, chapter five of this code;
(3) Governor's mansion advisory committee provided for in article five, chapter five-a of
this code;
(4) Commission on uniform state laws provided for in article one-a, chapter twenty-nine
of this code;
(5) Education and state employees grievance board provided for in article twenty-nine,
chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in article twelve, chapter
twenty-nine of this code;
(7) Boundary commission provided for in article twenty-three, chapter twenty-nine of this
code;
(8) Public defender services provided for in article twenty-one, chapter twenty-nine of this
code;
(9) Division of personnel provided for in article six, chapter twenty-nine of this code;
(10) The West Virginia ethics commission provided for in article two, chapter six-b of this
code; and
(11) Consolidated public retirement board provided for in article ten-d, chapter five of this code.
(b) The department of commerce, labor and environmental resources and the office of
secretary of the department of commerce, labor and environmental resources are abolished. For
purposes of administrative support and liaison with the office of the governor, the following
agencies and boards, including all allied, advisory and affiliated entities, are grouped under two
bureaus and one commission as follows The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated with any agency or board, are
transferred to and incorporated in and administered as a part of the department of commerce:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter twenty-one of this code, which
includes:
(i)(A) Occupational safety and health review commission provided for in article three-a,
chapter twenty-one of this code; and
(ii)(B) Board of manufactured housing construction and safety provided for in article nine,
chapter twenty-one of this code;
(B)(2) Office of miners' health, safety and training provided for in article one, chapter
twenty-two-a of this code. The following boards are transferred to the office of miners' health,
safety and training for purposes of administrative support and liaison with the office of the
governor:
(i)(A) Board of coal mine health and safety and coal mine safety and technical review
committee provided for in article six, chapter twenty-two-a of this code;
(ii)(B) Board of miner training, education and certification provided for in article seven,
chapter twenty-two-a of this code; and
(iii)(C) Mine inspectors' examining board provided for in article nine, chapter
twenty-two-a of this code;
(C)(3) The West Virginia development office, provided for in article two, chapter five-b
of this code, which includes:
(i) Economic development authority provided for in article fifteen, chapter thirty-one of this code; and
(ii) Tourism the division of tourism and the tourism commission provided for in article
two, chapter five-b of this code; and the office of the tourism commissioner;
(D)(4) Division of natural resources and natural resources commission provided for in
article one, chapter twenty of this code. The Blennerhassett historical state park provided for in
article eight, chapter twenty-nine of this code is under the division of natural resources;
(E)(5) Division of forestry provided for in article one-a, chapter nineteen of this code; and
(F)(6) Geological and economic survey provided for in article two, chapter twenty-nine
of this code;.
(c) The economic development authority provided for in article fifteen, chapter thirty-one
of this code is continued as an independent agency within the executive branch.
(G)(d) The water development authority and board provided for in article one, chapter
twenty-two-c of this code is continued as an independent agency within the executive branch.
(2)(e) Bureau of employment programs provided for in article one, chapter twenty-one-a
of this code is continued as an independent agency within the executive branch.
(3)(f) Workers' compensation commission provided for in article one, chapter twenty-three
of this code is continued as an independent agency within the executive branch.
(c)(g) Bureau of environment is abolished and the following agencies and boards,
including all allied, advisory and affiliated entities, are transferred to the department of
environmental protection for purposes of administrative support and liaison with the office of the
governor:
(1) Air quality board provided for in article two, chapter twenty-two-b of this code;
(2) Solid waste management board provided for in article three, chapter twenty-two-c of
this code;
(3) Environmental quality board, or its successor board, provided for in article three,
chapter twenty-two-b of this code;
(4) Surface mine board provided for in article four, chapter twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for in article seven, chapter twenty-two-c of this code;
(6) Shallow gas well review board provided for in article eight, chapter twenty-two-c of
this code; and
(7) Oil and gas conservation commission provided for in article nine, chapter
twenty-two-c of this code.
(d)(h) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of education and the arts:
(1) Library commission provided for in article one, chapter ten of this code;
(2) Educational broadcasting authority provided for in article five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational education provided for in
article three-a, chapter eighteen-b of this code;
(4)(3) Division of culture and history provided for in article one, chapter twenty-nine of
this code;
(4)(5) Division of rehabilitation services provided for in section two, article ten-a, chapter
eighteen of this code.
(e)(i) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven, chapter five of this code;
(2) Division of human services provided for in article two, chapter nine of this code;
(3) Bureau for public health provided for in article one, chapter sixteen of this code;
(4) Office of emergency medical services and advisory council thereto provided for in
article four-c, chapter sixteen of this code;
(5) Health care authority provided for in article twenty-nine-b, chapter sixteen of this
code;
(6) Commission on mental retardation provided for in article fifteen, chapter twenty-nine
of this code;
(7) Women's commission provided for in article twenty, chapter twenty-nine of this code;
and
(8) The child support enforcement division provided for in chapter forty-eight of this code.
(f)(j) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of military affairs and public safety:
(1) Adjutant general's department provided for in article one-a, chapter fifteen of this
code;
(2) Armory board provided for in article six, chapter fifteen of this code;
(3) Military awards board provided for in article one-g, chapter fifteen of this code;
(4) West Virginia state police provided for in article two, chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board provided for in article five,
chapter fifteen of this code and emergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter fifteen of this code;
(7) Division of corrections provided for in chapter twenty-five of this code;
(8) Fire commission provided for in article three, chapter twenty-nine of this code;
(9) Regional jail and correctional facility authority provided for in article twenty, chapter
thirty-one of this code;
(10) Board of probation and parole provided for in article twelve, chapter sixty-two of this
code; and
(11) Division of veterans' affairs and veterans' council provided for in article one, chapter
nine-a of this code.
(g)(k) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven of this code;
(2) Racing commission provided for in article twenty-three, chapter nineteen of this code;
(3) Lottery commission and position of lottery director provided for in article twenty-two,
chapter twenty-nine of this code;
(4) Agency of insurance commissioner provided for in article two, chapter thirty-three of
this code;
(5) Office of alcohol beverage control commissioner provided for in article sixteen,
chapter eleven of this code and article two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for in article three, chapter
thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter thirty-one-a of this code.;
(9) The state budget office, formerly known as the budget section of the finance division,
department of administration, previously provided for in article two, chapter five-a of this code
and now provided for in article two of this chapter;
(10) The municipal bond commission provided for in article three, chapter thirteen of this
code;
(11) The office of tax appeals provided for in article ten-a, chapter eleven of this code; and
(12) The state athletic commission provided for in article five-a, chapter twenty-nine of
this code;
(h)(l) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a, chapter seventeen of this code;
(2) Parkways, economic development and tourism authority provided for in article
sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two, chapter seventeen-a of this
code;
(4) Driver's licensing advisory board provided for in article two, chapter seventeen-b of
this code;
(5) Aeronautics commission provided for in article two-a, chapter twenty-nine of this
code;
(6) State rail authority provided for in article eighteen, chapter twenty-nine of this code;
and
(7) Port authority provided for in article sixteen-b, chapter seventeen of this code.
(i)(m) Except for powers, authority and duties that have been delegated to the secretaries
of the departments by the provisions of section two of this article, the existence of the position
of administrator and of the agency and the powers, authority and duties of each administrator and
agency are not affected by the enactment of this chapter.
(j)(n) Except for powers, authority and duties that have been delegated to the secretaries
of the departments by the provisions of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications of members of the boards are
not affected by the enactment of this chapter and all boards which are appellate bodies or were
otherwise established to be independent decision makers will not have their appellate or
independent decision-making status affected by the enactment of this chapter.
(k)(o) Any department previously transferred to and incorporated in a department created
in section two, article one of this chapter by prior enactment of this section in chapter three, acts
of the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and
subsequent amendments means a division of the appropriate department. Wherever reference is
made to any department transferred to and incorporated in a department created in section two,
article one of this chapter, the reference means a division of the appropriate department and any
reference to a division of a department so transferred and incorporated means a section of the
appropriate division of the department.
(l)(p) When an agency, board or commission is transferred under a bureau or agency other
than a department headed by a secretary pursuant to this section, that transfer is solely for
purposes of administrative support and liaison with the office of the governor, a department
secretary or a bureau. The bureaus created by the Legislature upon the abolishment of the
department of commerce, labor and environmental resources in the year one thousand nine hundred ninety-four will be headed by a commissioner or other statutory officer of an agency
within that bureau Nothing in this section extends the powers of department secretaries under
section two of this article to any person other than a department secretary and nothing limits or
abridges the statutory powers and duties of statutory commissioners or officers pursuant to this
code.
(m) The amendments to this section effected by the enactment of Enrolled Senate Bill No.
2013 in the year two thousand three shall become operative on the first day of October, two
thousand three.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each
department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary such employees as may be
necessary to carry out the functions of the secretary, which employees shall serve at the will and
pleasure of the secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and
economically, and develop goals, objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions
of board members, and name a person to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or duties to or among employees,
other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the governor, and transfer
within the department funds appropriated to the various agencies of the department which are not
expended due to cost savings resulting from the implementation of the provisions of this chapter:
Provided, That no more than twenty-five percent of the funds appropriated to any one agency or
board may be transferred to other agencies or boards within the department: Provided, however,
That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or funds specifically exempted by the Legislature from
transfer, except that the use of appropriations from the state road fund transferred to the office of
the secretary of the department of transportation is not a use other than the purpose for which such
funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent
enactment consolidates agencies, boards or functions, the secretary may transfer the funds
formerly appropriated to such agency, board or function in order to implement such consolidation.
The authority to transfer funds under this section shall expire on the thirtieth day of June, one
thousand nine hundred eighty-nine two thousand six;
(7) Enter into contracts or agreements requiring the expenditure of public funds, and
authorize the expenditure or obligating of public funds as authorized by law: Provided, That the
powers granted to the secretary to enter into contracts or agreements and to make expenditures
or obligations of public funds under this provision shall not exceed or be interpreted as authority
to exceed the powers heretofore granted by the Legislature to the various commissioners,
directors or board members of the various departments, agencies or boards that comprise and are
incorporated into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character, and convey or
dispose of any property of whatever kind or character as authorized by law: Provided, That the
powers granted to the secretary to lease, purchase, convey or dispose of such property shall not
exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature
to the various commissioners, directors or board members of the various departments, agencies
or boards that comprise and are incorporated into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this
code, to implement and make effective the powers, authority and duties granted and imposed by
the provisions of this chapter, such promulgation to be in accordance with the provisions of
chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any rule, as defined in section two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within
the department, without which written consent no proposal of a rule shall have any force or effect;
(13) Delegate to administrators such duties of the secretary as the secretary may deem
appropriate from time to time to facilitate execution of the powers, authority and duties delegated
to the secretary; and
(14) Take any other action involving or relating to internal management not otherwise
prohibited by law.
(b) The secretaries of the departments hereby created shall engage in a comprehensive
review of the practices, policies and operations of the agencies and boards within their
departments to determine the feasibility of cost reductions and increased efficiency which may
be achieved therein, including, but not limited to, the following:
(1) The elimination, reduction and restrictions in the use of the state's vehicle or other
transportation fleet;
(2) The elimination, reduction and restrictions in the preparation of state government
publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in lease agreements between the
state and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an
accrual basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost effective purchasing
procedures, including consideration of means by which domestic businesses may be assisted to
compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the
powers granted to the secretaries herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law or regulation, any federal-state
program or federally delegated program or jeopardize the approval, existence or funding of any
such program, and the powers granted to the secretary shall be so construed.
(d) The layoff and recall rights of employees within the classified service of the state as
provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall
be limited to the organizational unit within the agency or board and within the occupational group
established by the classification and compensation plan for the classified service of the agency
or board in which the employee was employed prior to the agency or board's transfer or
incorporation into the department: Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights provided in this subsection shall be
limited to two years or the length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to abridge the rights of employees
within the classified service of the state as provided in sections ten and ten-a, article six, chapter
twenty-nine of this code or the right of classified employees of the board of regents to the
procedures and protections set forth in article twenty-six-b, chapter eighteen of this code.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic development established
in section two, article two, chapter five-b of this code;
(2) "County commission" means the governing body of a county of this state;
(3) (2) "Development expenditures" means payments for governmental functions,
programs, activities, facility construction, improvements and other goods and services which a
district board is authorized to perform or provide under section five of this article;
(4) (3) "District" means an economic opportunity development district created pursuant
to this article;
(5) (4) "District board" means a district board created pursuant to section ten of this
article; and
(6) (5) "Eligible property" means any taxable or exempt real property located in a district
established pursuant to this article.
§7-22-6. Notice; hearing.
(a) General. -- A county commission desiring to create an economic opportunity
development district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall be published as a Class I-0 legal
advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place of the hearing, the notice must
also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be included in the district; and
(5) The proposed method of financing any costs involved, including the base and rate of
special district excise tax that may be imposed upon sales of tangible personal property and
taxable services from business locations situated within the proposed district.
(c) Opportunity to be heard. -- At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owner of real property situated in the
proposed district and any residents of the county.
(d) Application to council West Virginia development office. -- If the county commission,
following the public hearing, determines it advisable and in the public interest to establish an
economic opportunity development district, it shall apply to the council for community and
economic development West Virginia development office for approval of the economic
opportunity development district project pursuant to the procedures provided in section seven of
this article.
§7-22-7. Application to development office for approval of an economic opportunity
development district project.
(a) General. -- The council for community and economic development office shall receive
and act on applications filed with it by county commissions pursuant to section six of this article.
Each application must include:
(1) A true copy of the notice described in section six of this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to complete the project;
(4) A general description of the capital improvements, additional or extended services and
other proposed development expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the development expenditures,
together with a description of the reserves to be established for financing ongoing development
or redevelopment expenditures necessary to permanently maintain the optimum economic
viability of the district following its inception: Provided, That the amounts of the reserves shall
not exceed the amounts that would be required by ordinary commercial capital market
considerations;
(6) A description of the sources and anticipated amounts of all financing, including, but
not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property taxes and fees;
(7) A description of the financial contribution of the county commission to the funding
of development expenditures;
(8) Identification of any businesses that the county commission expects to relocate their
business locations from the district to another place in the state in connection with the
establishment of the district or from another place in this state to the district: Provided, That for
purposes of this article, any entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting business in the proposed
economic opportunity development district that the county commission expects to continue doing
business there after the district is created;
(10) A good faith estimate of the aggregate amount of consumers sales and service tax that
was actually remitted to the tax commissioner by all business locations identified as provided in
subdivisions (8) and (9) of this subsection with respect to their sales made and services rendered
from their then current business locations that will be relocated from, or to, or remain in the
district, for the twelve full calendar months next preceding the date of the application: Provided, That for purposes of this article, the aggregate amount is designated as "the base tax revenue
amount";
(11) A good faith estimate of the gross annual district tax revenue amount;
(12) The proposed application of any surplus from all funding sources to further the
objectives of this article;
(13) The tax commissioner's certification of: (i) The amount of consumers sales and
service taxes collected from businesses located in the economic opportunity district during the
twelve calendar months preceding the calendar quarter during which the application will be
submitted to the council development office; (ii) the estimated amount of economic opportunity
district excise tax that will be collected during the first twelve months after the month in which
the tax commissioner would first begin to collect that tax; and (iii) the estimated amount of
economic opportunity district excise tax that will be collected during the first thirty-six months
after the month in which the tax commissioner would first begin to collect that tax; and
(14) Any additional information the council development office may require.
(b) Review of applications. -- The council development office shall review all project
proposals for conformance to statutory and regulatory requirements, the reasonableness of the
project's budget and timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses economic problems in the
area in which the project will be located;
(2) The merits of the project determined by a cost-benefit analysis that incorporates all
costs and benefits, both public and private;
(3) Whether the project is supported by significant private sector investment and
substantial credible evidence that, but for the existence of sales tax increment financing, the
project would not be feasible;
(4) Whether the economic opportunity district excise tax dollars will leverage or be the
catalyst for the effective use of private, other local government, state or federal funding that is
available;
(5) Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion;
(6) Whether the project will, directly or indirectly, improve the opportunities, in the area
where the project will be located, for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will, directly or indirectly, assist in the creation of additional
long-term employment opportunities in the area and the quality of jobs created in all phases of
the project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the area, or part of the area, in
which the economic opportunity district is located;
(9) Whether the county commission has a strategy for economic development in the
county and whether the project is consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this article;
(12) Whether the project is economically and fiscally sound using recognized business
standards of finance and accounting; and
(13) The ability of the county commission and the project developer or project team to
carry out the project: Provided, That no project may be approved by the council development
office unless the amount of all development expenditures proposed to be made in the first
twenty-four months following the creation of the district results in capital investment of more
than fifty million dollars in the district and the county submits clear and convincing information,
to the satisfaction of the council development office, that such investment will be made if the
council development office approves the project and the Legislature authorizes the county
commission to levy an excise tax on sales of goods and services made within the economic
opportunity district as provided in this article.
(c) Additional criteria. -- The council for community and economic development office
may establish other criteria for consideration when approving the applications.
(d) Action on the application. -- The council for community and economic development
executive director of the development office shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional
information requested by the council development office, whichever is the later.
(e) Certification of project. -- If the council for community and economic development
executive director of the development office approves a county's economic opportunity district
project application, it he or she shall issue to the county commission a written certificate
evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district
tax revenue amount and the estimated net annual district tax revenue amount which, for purposes
of this article, is the difference between the gross annual district tax revenue amount and the base
tax revenue amount, all of which the council development office has determined with respect to
the district's application based on any investigation it considers reasonable and necessary,
including, but not limited to, any relevant information the council for community and economic
development office requests from the tax commissioner and the tax commissioner provides to the
council development office: Provided, That in determining the net annual district tax revenue
amount, the council development office may not use a base tax revenue amount less than that
amount certified by the tax commissioner but, in lieu of confirmation from the tax commissioner
of the gross annual district tax revenue amount, the council development office may use the
estimate of the gross annual district tax revenue amount provided by the county commission
pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of previously certified district.
-- If the council for community and economic development executive director of the development
office approves a county's economic opportunity district project application to expand the
geographic boundaries of a previously certified district, it he or she shall issue to the county
commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district
tax revenue amount and the estimated net annual district tax revenue amount which, for purposes
of this article, is the difference between the gross annual district tax revenue amount and the base
tax revenue amount, all of which the council development office has determined with respect to the district's application based on any investigation it considers reasonable and necessary,
including, but not limited to, any relevant information the council development office requests
from the tax commissioner and the tax commissioner provides to the council development office:
Provided, That in determining the net annual district tax revenue amount, the council
development office may not use a base tax revenue amount less than that amount certified by the
tax commissioner but, in lieu of confirmation from the tax commissioner of the gross annual
district tax revenue amount, the council development office may use the estimate of the gross
annual district tax revenue amount provided by the county commission pursuant to subsection (a)
of this section.
(g) Promulgation of rules. -- The council for community and economic development
executive director of the development office may promulgate rules to implement the economic
opportunity development district project application approval process and to describe the criteria
and procedures it has established in connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be filed with the secretary of state.
§7-22-8. Establishment of the economic opportunity development district fund.
(a) General. -- There is hereby created a special revenue account in the state treasury
designated the "economic opportunity development district fund" which is an interest-bearing
account and shall be invested in the manner described in section nine-c, article six, chapter twelve
of this code with the interest income a proper credit to the fund.
(b) District subaccount. -- A separate and segregated subaccount within the account shall
be established for each economic opportunity development district that is approved by the council
executive director of the development office. In addition to the economic opportunity district
excise tax levied and collected as provided in this article, funds paid into the account for the
credit of any subaccount may also be derived from the following sources:
(1) All interest or return on the investment accruing to the subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received
from any governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for this purpose.
§7-22-10. Ordinance to create district as approved by development office and authorized
by the Legislature.
(a) General. -- If an economic opportunity development district project has been approved
by the council executive director of the development office and the levying of a special district
excise tax for the district has been authorized by the Legislature, all in accordance with this
article, the county commission may create the district by order entered of record as provided in
article one of this chapter: Provided, That the county commission may not amend, alter or change
in any manner the boundaries of the economic opportunity development district authorized by the
Legislature. In addition to all other requirements, the order shall contain the following:
(1) The name of the district and a description of its boundaries;
(2) A summary of any proposed services to be provided and capital improvements to be
made within the district and a reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that may be imposed upon sales by
businesses for the privilege of operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be imposed, administered and
collected, all of which shall be in conformity with the requirements of this article; and
(4) The district board members' terms, their method of appointment and a general
description of the district board's powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its organization and operations
not inconsistent with any applicable laws;
(B) To elect its own officers, to appoint committees and to employ and fix compensation
for personnel necessary for its operations;
(C) To enter into contracts with any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and not-for-profit organizations and
generally to do any and all things necessary or convenient for the purpose of promoting,
developing and advancing the purposes described in section two of this article;
(D) To amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon the terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the district board and any person,
agency, government entity, agency or instrumentality, firm, partnership, limited partnership,
limited liability company or corporation;
(E) To, unless otherwise provided in, and subject to the provisions of any contracts or
leases to operate, repair, manage and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use thereof and incidental thereto to
provide services, such as retail stores and restaurants, and to effectuate incidental purposes, grant
leases, permits, concessions or other authorizations to any person or persons upon the terms and
conditions for consideration and for the term of duration as agreed upon by the district board and
any person, agency, governmental department, firm or corporation;
(F) To delegate any authority given to it by law to any of its officers, committees, agents
or employees;
(G) To apply for, receive and use grants-in-aid, donations and contributions from any
source or sources and to accept and use bequests, devises, gifts and donations from any person,
firm or corporation;
(H) To acquire real property by gift, purchase or construction or in any other lawful
manner and hold title thereto in its own name and to sell, lease or otherwise dispose of all or part
of any real property which it may own, either by contract or at public auction, upon the approval
by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of
any personal property which it may own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that there exists a continuing need for
redevelopment expenditures and that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable notes and other evidences of
indebtedness therefor, on the terms as the district shall determine, and give security therefor as
is requisite, including, without limitation, a pledge of the district's rights in its subaccount of the
economic opportunity development district fund;
(K) To acquire (either directly or on behalf of the municipality) an interest in any entity
or entities that own any real property situate in the district, to contribute capital to any entity or
entities and to exercise the rights of an owner with respect thereto; and
(L) To expend its funds in the execution of the powers and authority given in this section,
which expenditures, by the means authorized in this section, are hereby determined and declared
as a matter of legislative finding to be for a public purpose and use, in the public interest and for
the general welfare of the people of West Virginia, to alleviate and prevent economic
deterioration and to relieve the existing critical condition of unemployment existing within the
state.
(b) Additional contents of order. -- The county commission's order shall also state the
general intention of the county commission to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order. -- Upon entry of an order establishing an
economic opportunity development district excise tax, a certified copy of the order shall be
mailed to the state auditor, as ex officio the chief inspector and supervisor of public offices, the
state treasurer and the tax commissioner.
§7-22-11. District board; duties.
(a) General. -- The county commission of a county that has been authorized by the
Legislature to establish an economic opportunity development district, in accordance with this
article, shall provide, by order entered of record, for the appointment of a district board to oversee
the operations of the district: Provided, That the county commission may, by order, in lieu of
appointing a separate district board, designate itself to act as the district board.
(b) Composition of board. -- If a separate district board is to be appointed, it shall be made
up of at least seven members, two of which shall be owners, or representatives of owners, of real
property situated in the economic opportunity development district and the other five shall be
residents of the county within which the district is located.
(c) Annual report. -- The district board, in addition to the duties prescribed by the order
creating the district, shall submit an annual report to the county commission and the council development office containing:
(1) An itemized statement of its receipts and disbursements for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal year;
(3) A recommended program of services to be performed and capital improvements to be
made within the district for the coming fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this article prohibits any member of the
district board from also serving on the board of directors of a nonprofit corporation with which
the county commission may contract to provide specified services within the district.
(e) Compensation of board members. -- Each member of the district board may receive
reasonable compensation for services on the board in the amount determined by the county
commission: Provided, That when a district board is not created for the district but the work of
the board is done by the county commission, the county commissioners shall receive no additional
compensation.
§7-22-12. Special district excise tax authorized.
(a) General. -- The county commission of a county, authorized by the Legislature to levy
a special district excise tax for the benefit of an economic opportunity development district, may,
by order entered of record, impose that tax on the privilege of selling tangible personal property
and rendering select services in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section
shall be identical to the base of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of
the district: Provided, That except for the exemption provided in section nine-f of said article,
all exemptions and exceptions from the consumers sales and service tax shall also apply to the
special district excise tax and sales of gasoline and special fuel shall not be subject to special
district excise tax but shall remain subject to the tax levied by said article.
(c) Tax rate. -- The rate of a special district excise tax levied pursuant to this section shall
be stated in an order entered of record by the county commission and equal to the general rate of tax on each dollar of gross proceeds from sales of tangible personal property and services subject
to the tax levied by section three, article fifteen, chapter eleven of this code. The tax on fractional
parts of a dollar shall be levied and collected in conformity with the provision of said section.
(d) Collection by tax commissioner. -- The order of the county commission imposing a
special district excise tax shall provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen, chapter eleven of this code is
administered, assessed, collected and enforced.
(e) Deposit of net tax collected. --
(1) The order of the county commission imposing a special district excise tax shall provide
that the tax commissioner deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the county commission's subaccount therein
for the economic opportunity development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this article except as provided in
subsection (f) of this section.
(2) The state treasurer shall withhold from the county commission's subaccount in the
economic opportunity development district fund and shall deposit in the general revenue fund of
this state, on or before the twentieth day of each calendar month next following the effective date
of a special district excise tax, a sum equal to one twelfth of the base tax revenue amount last
certified by the council development office pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the
authority of this section shall be effective on the first day of the calendar month that begins sixty
days after the date of adoption of an order entered of record imposing the tax or the first day of
any later calendar month expressly designated in the order.
(g) Copies of order. -- Upon entry of an order levying a special district excise tax, a
certified copy of the order shall be mailed to the state auditor, as ex officio the chief inspector and
supervisor of public offices, the state treasurer and the tax commissioner.
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity development district may not be amended to include additional contiguous property until after the amendment is approved by
the council executive director of the development office in the same manner as an application to
approve the establishment of the district is acted upon under section seven of this article and the
amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included in the district unless it is
situated within the boundaries of the county and is contiguous to the then current boundaries of
the district.
(c) Public hearing required. --
(1) The county commission of any county desiring to amend its order shall designate a
time and place for a public hearing upon the proposal to include additional property. The notice
shall meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county commission shall afford the
opportunity to be heard to any owners of real property either currently included in or proposed
to be added to the existing district and to any other residents of the county.
(d) Application to council West Virginia development office. -- Following the hearing,
the county commission may, by resolution, apply to the council for community and economic
development office to approve inclusion of the additional property in the district.
(e) Consideration by council the executive director of the development office. -- Before
the council for community and economic development executive director of the development
office approves inclusion of the additional property in the district, the council development office
shall determine the amount of taxes levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the county commission proposes to add to the district
in the same manner as the base amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this additional tax base amount into the
general revenue fund each month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council executive director of the development
office approves amending the boundaries of the district, the Legislature must amend section nine
of this article to allow levy of the special district excise tax on business located in geographic area to be included in the district. After the Legislature amends said section, the county commission
may then amend its order: Provided, That the order may not be effective any earlier than the first
day of the calendar month that begins sixty days after the effective date of the act of the
Legislature authorizing the levy on the special district excise tax on businesses located in the
geographic area to be added to the boundaries of the district for which the tax is levied or a later
date as set forth in the order of the county commission.
(g) Collection of special district excise tax. -- All businesses included in a district because
of the boundary amendment shall on the effective date of the order, determined as provided in
subsection (f) of this section, collect the special district excise tax on all sales on tangible property
or services made from locations in the district on or after the effective date of the county
commission's order or a later date as set forth in the order.
§7-22-15. Abolishment and dissolution of district; notice; hearing.
(a) General. -- Except upon the express written consent of the council for community and
economic development executive director of the development office and of all the holders or
obligees of any indebtedness or other instruments the proceeds of which were applied to any
development or redevelopment expenditures or any indebtedness the payment of which is secured
by revenues payable into the fund provided under section eight of this article or by any public
property, a district may only be abolished by the county commission when there is no outstanding
indebtedness, the proceeds of which were applied to any development or redevelopment
expenditures or the payment of which is secured by revenues payable into the fund provided
under section eight of this article, or by any public property, and following a public hearing upon
the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing required by subsection (a) of
this section shall be provided by first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in compliance with article three, chapter
fifty-nine of this code at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the abolishment of any economic
opportunity development district, any funds or other assets, contractual rights or obligations, claims against holders of indebtedness or other financial benefits, liabilities or obligations
existing after full payment has been made on all existing contracts, bonds, notes or other
obligations of the district are transferred to and assumed by the county commission. Any funds
or other assets transferred shall be used for the benefit of the area included in the district being
abolished.
(d) Reinstatement of district. -- Following abolishment of a district pursuant to this
section, its reinstatement requires compliance with all requirements and procedures set forth in
this article for the initial development, approval, establishment and creation of an economic
opportunity development district.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT
DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic development established
in section two, article two, chapter five-b of this code; (2) "Development expenditures" means
payments for governmental functions, programs, activities, facility construction, improvements
and other goods and services which a district board is authorized to perform or provide under
section five of this article;
(3) (2) "District" means an economic opportunity development district created pursuant
to this article;
(4) (3) "District board" means a district board created pursuant to section ten of this
article;
(5) (4) "Eligible property" means any taxable or exempt real property located in a district
established pursuant to this article; and
(6) (5) "Municipality" is a word of art and shall mean, for the purposes of this article, only
Class I and Class II cities as classified in section three, article one of this chapter.
§8-38-6. Notice; hearing.
(a) General. -- A municipality desiring to create an economic opportunity development
district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall be published as a Class I-0 legal
advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days
prior to the scheduled hearing. In addition to the time and place of the hearing, the notice must
also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be included in the district; and
(5) The proposed method of financing any costs involved, including the base and rate of
special district excise tax that may be imposed upon sales of tangible personal property and
taxable services from business locations situated within the proposed district.
(c) Opportunity to be heard. -- At the time and place set forth in the notice, the
municipality shall afford the opportunity to be heard to any owner of real property situated in the
proposed district and any residents of the municipality.
(d) Application to council West Virginia development office. -- If the municipality,
following the public hearing, determines it advisable and in the public interest to establish an
economic opportunity development district, it shall apply to the council for community and
economic development West Virginia development office for approval of the economic
opportunity development district project pursuant to the procedures provided in section seven of
this article.
§8-38-7. Application to development office for community and economic development for
approval of an economic opportunity development district project.
(a) General. -- The council for community and economic development office shall receive
and act on applications filed with it by municipalities pursuant to section six of this article. Each
application must include:
(1) A true copy of the notice described in section six of this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to complete the project;
(4) A general description of the capital improvements, additional or extended services and
other proposed development expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the development expenditures,
together with a description of the reserves to be established for financing ongoing development
or redevelopment expenditures necessary to permanently maintain the optimum economic
viability of the district following its inception: Provided, That the amounts of the reserves shall
not exceed the amounts that would be required by ordinary commercial capital market
considerations;
(6) A description of the sources and anticipated amounts of all financing, including, but
not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property taxes and fees;
(7) A description of the financial contribution of the municipality to the funding of
development expenditures;
(8) Identification of any businesses that the municipality expects to relocate their business
locations from the district to another place in the state in connection with the establishment of the
district or from another place in this state to the district: Provided, That for purposes of this
article, any entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting business in the proposed
economic opportunity development district that the municipality expects to continue doing
business there after the district is created;
(10) A good faith estimate of the aggregate amount of consumers sales and service tax that
was actually remitted to the tax commissioner by all business locations identified as provided in
subdivisions (8) and (9) of this subsection with respect to their sales made and services rendered
from their then current business locations that will be relocated from, or to, or remain in the
district, for the twelve full calendar months next preceding the date of the application: Provided,
That for purposes of this article, the aggregate amount is designated as "the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax revenue amount;
(12) The proposed application of any surplus from all funding sources to further the
objectives of this article;
(13) The tax commissioner's certification of: (i) The amount of consumers sales and
service taxes collected from businesses located in the economic opportunity district during the
twelve calendar months preceding the calendar quarter during which the application will be
submitted to the council development office; (ii) the estimated amount of economic opportunity
district excise tax that will be collected during the first twelve months after the month in which
the tax commissioner would first begin to collect that tax; and (iii) the estimated amount of
economic opportunity district excise tax that will be collected during the first thirty-six months
after the month in which the tax commissioner would first begin to collect that tax; and
(14) Any additional information the council development office may require.
(b) Review of applications. -- The council development office shall review all project
proposals for conformance to statutory and regulatory requirements, the reasonableness of the
project's budget and timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses economic problems in the
area in which the project will be located;
(2) The merits of the project determined by a cost-benefit analysis that incorporates all
costs and benefits, both public and private;
(3) Whether the project is supported by significant private sector investment and
substantial credible evidence that, but for the existence of sales tax increment financing, the
project would not be feasible;
(4) Whether the economic opportunity development district excise tax dollars will
leverage or be the catalyst for the effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that the project is likely to be started
and completed in a timely fashion;
(6) Whether the project will, directly or indirectly, improve the opportunities, in the area
where the project will be located, for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will, directly or indirectly, assist in the creation of additional
long-term employment opportunities in the area and the quality of jobs created in all phases of
the project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the area, or part of the area, in
which the economic opportunity district is located;
(9) Whether the municipality has a strategy for economic development in the municipality
and whether the project is consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this article;
(12) Whether the project is economically and fiscally sound using recognized business
standards of finance and accounting; and
(13) The ability of the municipality and the project developer or project team to carry out
the project: Provided, That no project may be approved by the council development office unless
the amount of all development expenditures proposed to be made in the first twenty-four months
following the creation of the district results in capital investment of more than fifty million dollars
in the district and the municipality submits clear and convincing information, to the satisfaction
of the council development office, that such investment will be made if the council development
office approves the project and the Legislature authorizes the municipality to levy an excise tax
on sales of goods and services made within the economic opportunity development district as
provided in this article.
(c) Additional criteria. -- The council for community and economic development office
may establish other criteria for consideration when approving the applications.
(d) Action on the application. -- The council for community and economic development
executive director of the development office shall act to approve or not approve any application
within thirty days following the receipt of the application or the receipt of any additional information requested by the council development office, whichever is the later.
(e) Certification of project. -- If the council for community and economic development
executive director of the development office approves a municipality's economic opportunity
district project application, it he or she shall issue to the municipality a written certificate
evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district
tax revenue amount and the estimated net annual district tax revenue amount which, for purposes
of this article, is the difference between the gross annual district tax revenue amount and the base
tax revenue amount, all of which the council for community and economic development office
has determined with respect to the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any relevant information the council for
community and economic development office requests from the tax commissioner and the tax
commissioner provides to the council development office: Provided, That in determining the net
annual district tax revenue amount, the council development office may not use a base tax
revenue amount less than that amount certified by the tax commissioner but, in lieu of
confirmation from the tax commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross annual district tax revenue amount
provided by the municipality pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of previously certified district.
-- If the council for community and economic development executive director of the development
office approves a municipality's economic opportunity district project application to expand the
geographic boundaries of a previously certified district, it he or she shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district
tax revenue amount and the estimated net annual district tax revenue amount which, for purposes
of this article, is the difference between the gross annual district tax revenue amount and the base
tax revenue amount, all of which the council development office has determined with respect to
the district's application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the council development office requests
from the tax commissioner and the tax commissioner provides to the council development office:
Provided, That in determining the net annual district tax revenue amount, the council
development office may not use a base tax revenue amount less than that amount certified by the
tax commissioner but, in lieu of confirmation from the tax commissioner of the gross annual
district tax revenue amount, the council development office may use the estimate of the gross
annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this
section.
(g) Promulgation of rules. -- The council for community and economic development
executive director of the development office may promulgate rules to implement the economic
opportunity development district project application approval process and to describe the criteria
and procedures it has established in connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be filed with the secretary of state.
§8-38-8. Establishment of the economic opportunity development district fund.
(a) General. -- There is hereby created a special revenue account in the state treasury
designated the "economic opportunity development district fund" which is an interest-bearing
account and shall be invested in the manner described in section nine-c, article six, chapter twelve
of this code with the interest income a proper credit to the fund.
(b) District subaccount. - A separate and segregated subaccount within the account shall
be established for each economic opportunity development district that is approved by the council
executive director of the development office. In addition to the economic opportunity district
excise tax levied and collected as provided in this article, funds paid into the account for the
credit of any subaccount may also be derived from the following sources:
(1) All interest or return on the investment accruing to the subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received
from any governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for this purpose.
§8-38-10. Ordinance to create district as approved by development office and authorized by the Legislature.
(a) General. -- If an economic opportunity development district project has been approved
by the council for community and economic development executive director of the development
office and the levying of a special district excise tax for the district has been authorized by the
Legislature, all in accordance with this article, the municipality may create the district by
ordinance entered of record as provided in article one of this chapter: Provided, That the
municipality may not amend, alter or change in any manner the boundaries of the economic
opportunity development district authorized by the Legislature. In addition to all other
requirements, the ordinance shall contain the following:
(1) The name of the district and a description of its boundaries;
(2) A summary of any proposed services to be provided and capital improvements to be
made within the district and a reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that may be imposed upon sales by
businesses for the privilege of operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be imposed, administered and
collected, all of which shall be in conformity with the requirements of this article; and
(4) The district board members' terms, their method of appointment and a general
description of the district board's powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its organization and operations
not inconsistent with any applicable laws;
(B) To elect its own officers, to appoint committees and to employ and fix compensation
for personnel necessary for its operations;
(C) To enter into contracts with any person, agency, government entity, agency or
instrumentality, firm, partnership, limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and not-for-profit organizations and
generally to do any and all things necessary or convenient for the purpose of promoting,
developing and advancing the purposes described in section two of this article;
(D) To amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon the terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the district board and any person,
agency, government entity, agency or instrumentality, firm, partnership, limited partnership,
limited liability company or corporation;
(E) To, unless otherwise provided in, and subject to the provisions of any contracts or
leases to operate, repair, manage, and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use thereof and incidental thereto to
provide services, such as retail stores and restaurants, and to effectuate incidental purposes, grant
leases, permits, concessions or other authorizations to any person or persons upon the terms and
conditions for consideration and for the term of duration as agreed upon by the district board and
any person, agency, governmental department, firm or corporation;
(F) To delegate any authority given to it by law to any of its officers, committees, agents
or employees;
(G) To apply for, receive and use grants-in-aid, donations and contributions from any
source or sources and to accept and use bequests, devises, gifts and donations from any person,
firm or corporation;
(H) To acquire real property by gift, purchase or construction or in any other lawful
manner and hold title thereto in its own name and to sell, lease or otherwise dispose of all or part
of any real property which it may own, either by contract or at public auction, upon the approval
by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of
any personal property which it may own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that there exists a continuing need for
redevelopment expenditures and that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable notes and other evidences of
indebtedness therefor, on the terms as the district shall determine, and give security therefor as
is requisite, including, without limitation, a pledge of the district's rights in its subaccount of the
economic opportunity development district fund;
(K) To acquire (either directly or on behalf of the municipality) an interest in any entity
or entities that own any real property situate in the district, to contribute capital to any entity or
entities and to exercise the rights of an owner with respect thereto; and
(L) To expend its funds in the execution of the powers and authority given in this section,
which expenditures, by the means authorized in this section, are hereby determined and declared
as a matter of legislative finding to be for a public purpose and use, in the public interest and for
the general welfare of the people of West Virginia, to alleviate and prevent economic
deterioration and to relieve the existing critical condition of unemployment existing within the
state.
(b) Additional contents of ordinance. -- The municipality's ordinance shall also state the
general intention of the municipality to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of ordinance. -- Upon enactment of an ordinance
establishing an economic opportunity development district excise tax, a certified copy of the
ordinance shall be mailed to the state auditor, as ex officio the chief inspector and supervisor of
public offices, the state treasurer and the tax commissioner.
§8-38-11. District board; duties.
(a) General. -- The council of a municipality that has been authorized by the council for
community and economic development office to establish an economic opportunity development
district, in accordance with this article, shall provide, by ordinance, for the appointment of a
district board to oversee the operations of the district: Provided, That the municipality may, in
the ordinance, in lieu of appointing a separate district board, designate itself to act as the district
board.
(b) Composition of board. -- If a separate district board is to be appointed, it shall be made
up of at least seven members, two of which shall be owners, or representatives of owners, of real
property situated in the economic opportunity development district and the other five shall be
residents of the municipality within which the district is located.
(c) Annual report. -- The district board, in addition to the duties prescribed by the ordinance creating the district, shall submit an annual report to the municipality and the council
development office containing:
(1) An itemized statement of its receipts and disbursements for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal year;
(3) A recommended program of services to be performed and capital improvements to be
made within the district for the coming fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this article prohibits any member of the
district board from also serving on the board of directors of a nonprofit corporation with which
the municipality may contract to provide specified services within the district.
(e) Compensation of board members. -- Each member of the district board may receive
reasonable compensation for services on the board in the amount determined by the municipality:
Provided, That when a district board is not created for the district but the work of the board is
done by the municipality, the members shall receive no additional compensation.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by the Legislature to levy a
special district excise tax for the benefit of an economic opportunity development district, may,
by ordinance, impose that tax on the privilege of selling tangible personal property and rendering
select services in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section
shall be identical to the base of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of
the district: Provided, That except for the exemption provided in section nine-f of said article,
all exemptions and exceptions from the consumers sales and service tax shall also apply to the
special district excise tax and sales of gasoline and special fuel shall not be subject to special
district excise tax but shall remain subject to the tax levied by said article.
(c) Tax rate. -- The rate of a special district excise tax levied pursuant to this section shall
be stated in an ordinance enacted by the municipality and equal to the general rate of tax on each dollar of gross proceeds from sales of tangible personal property and services subject to the tax
levied by section three, article fifteen, chapter eleven of this code. The tax on fractional parts of
a dollar shall be levied and collected in conformity with the provision of said section.
(d) Collection by tax commissioner. -- The ordinance of the municipality imposing a
special district excise tax shall provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen, chapter eleven of this code is
administered, assessed, collected and enforced.
(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special district excise tax shall provide
that the tax commissioner deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the municipality's subaccount therein for
the economic opportunity development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this article except as provided in
subsection (f) of this section.
(2) The state treasurer shall withhold from the municipality's subaccount in the economic
opportunity development district fund and shall deposit in the general revenue fund of this state,
on or before the twentieth day of each calendar month next following the effective date of a
special district excise tax, a sum equal to one twelfth of the base tax revenue amount last certified
by the council development office pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the
authority of this section shall be effective on the first day of the calendar month that begins at
least sixty days after the date of enactment of the ordinance imposing the tax or at any later date
expressly designated in the ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance levying a special district
excise tax, a certified copy of the ordinance shall be mailed to the state auditor, as ex officio the
chief inspector and supervisor of public offices, the state treasurer and the tax commissioner.
§8-38-14. Modification of included area; notice; hearing.
(a) General. -- The ordinance creating an economic opportunity development district may not be amended to include additional contiguous property until after the amendment is approved
by the council for community and economic development executive director of the development
office in the same manner as an application to approve the establishment of the district is acted
upon under section seven of this article.
(b) Limitations. -- Additional property may not be included in the district unless it is
situated within the boundaries of the municipality and is contiguous to the then current boundaries
of the district.
(c) Public hearing required. --
(1) The council of any municipality desiring to amend its ordinance shall designate a time
and place for a public hearing upon the proposal to include additional property. The notice shall
meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the municipality shall afford the
opportunity to be heard to any owners of real property either currently included in or proposed
to be added to the existing district and to any other residents of the municipality.
(d) Application to council West Virginia development office. -- Following the hearing,
the municipality may, by resolution, apply to the council for community and economic
development office to approve inclusion of the additional property in the district.
(e) Consideration by council the executive director of the development office. -- Before
the council for community and economic development executive director of the development
office approves inclusion of the additional property in the district, the council development office
shall determine the amount of taxes levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the municipality proposes to add to the district in the
same manner as the base amount of tax was determined when the district was first created. The
state treasurer shall also deposit one twelfth of this additional tax base amount into the general
revenue fund each month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council for community and economic
development executive director of the development office approves amending the boundaries of
the district, the Legislature must amend section nine of this article to allow levy of the special district excise tax on business located in geographic area to be included in the district. After the
Legislature amends said section, the municipality may then amend its ordinance: Provided, That
the ordinance may not be effective any earlier than the first day of the calendar month that begins
sixty days after the effective date of the amended ordinance imposing the levy of the special
district excise tax on businesses located in the geographic area to be added to the boundaries of
the district for which the tax is levied or the first day of a later calendar month as set forth in the
ordinance of the municipality.
(g) Collection of special district excise tax. -- All businesses included in a district because
of the boundary amendment shall on the effective date of the ordinance, determined as provided
in subsection (f) of this section, collect the special district excise tax on all sales on tangible
property or services made from locations in the district on or after the effective date of the
municipality's ordinance or a later date as set forth in the ordinance.
§8-38-15. Abolishment and dissolution of district; notice; hearing.
(a) General. -- Except upon the express written consent of the council for community and
economic development executive director of the development office and of all the holders or
obligees of any indebtedness or other instruments the proceeds of which were applied to any
development or redevelopment expenditures or any indebtedness, the payment of which is
secured by revenues payable into the fund provided under section eight of this article or by any
public property, a district may only be abolished by the municipality when there is no outstanding
indebtedness the proceeds of which were applied to any development or redevelopment
expenditures or the payment of which is secured by revenues payable into the fund provided
under section eight of this article, or by any public property, and following a public hearing upon
the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing required by subsection (a) of
this section shall be provided by first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in compliance with article three, chapter
fifty-nine of this code at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the abolishment of any economic opportunity development district, any funds or other assets, contractual rights or obligations,
claims against holders of indebtedness or other financial benefits, liabilities or obligations
existing after full payment has been made on all existing contracts, bonds, notes or other
obligations of the district are transferred to and assumed by the municipality. Any funds or other
assets transferred shall be used for the benefit of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a district pursuant to this
section, its reinstatement requires compliance with all requirements and procedures set forth in
this article for the initial development, approval, establishment and creation of an economic
opportunity development district.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment, term of private
members; chairman; quorum.
(a) The jobs investment trust board is continued. The board is a public body corporate and
established to improve and otherwise promote economic development in this state.
(b) The board consists of thirteen members, five of whom serve by virtue of their
respective positions. These five are the governor or designee; president of West Virginia
university or his or her designee; the president of Marshall university or his or her designee; the
chancellor of the higher education policy commission or his or her designee; and the executive
director of the West Virginia housing development fund; and the executive director of the West
Virginia development office. One member shall be is appointed by the governor from a list of two
names submitted by the board of directors of the housing development fund. One member shall
be is appointed by the governor from a list of two names submitted by the commissioner of the
division of tourism. The other six members shall be are appointed from the general public by the
governor. Of the members of the general public members appointed by the governor, one shall
be is an attorney with experience in finance and investment matters; one shall be is a certified
public accountant; one shall be is a representative of labor; one shall be is experienced or
involved in innovative business development; and two shall be are present or past executive officers of companies listed on a major stock exchange or large privately held companies.
Provided, That All appointments made pursuant to the provisions of this article shall be are by
and with the advice and consent of the Senate.
(c) A vacancy on the board shall be is filled by appointment by the governor for the
unexpired term in the same manner as the original appointment. Any person A member
appointed to fill a vacancy serves only for the remainder of the unexpired term.
(d) The governor may remove any appointed member in case of incompetency, neglect
of duty, moral turpitude or malfeasance in office and the governor may declare the office vacant
and fill fills the vacancy as provided in other cases of vacancy.
(e) The chairman of the board shall be elected by the board from among the members of
the board The governor or designee serves as the chair. The board annually elects one of its
public members as vice-chair, and appoints a secretary to keep records of its proceedings who
need not be a member of the board.
(f) Seven members of the board is a quorum. No Action may not be taken by the board
except upon the affirmative vote of at least a majority of those members present or participating
by any other means as described in subsection (g) of this section, but in no any event not fewer
than six of the members serving on the board.
(g) Members of the board may participate in a meeting of the board by means of
conference telephone or similar communication equipment by means of which all persons
participating in the meeting can hear each other. and Participation in a board meeting pursuant
to this subsection constitutes presence in person at the meeting.
(h) The members of the board, including the chairman, may receive no compensation are
not compensated for their services as members of the board, but are entitled to their receive
reasonable and necessary expenses actually incurred in discharging their duties under this article
in a manner consistent with guidelines of the travel management office of the department of
administration.
(i) The board shall meet meets on a quarterly basis or more often if necessary.
(j) The governor shall appoint a member for a four-year term. Any member whose term has expired serves until his or her a successor has been is duly appointed and qualified. Any
member is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of Delegates, to be appointed
by the Speaker of the House of Delegates, and one member of the West Virginia Senate, to be
appointed by the President of the Senate, shall serve as advisory members of the jobs investment
trust board and, as advisory members, shall be are ex officio, nonvoting members.
§12-7-5. Management and control of jobs investment trust vested in board; officers;
liability; authority of executive director to act on behalf of board;
relationship to higher education institutions.
(a) It is the duty of the board to manage and control the jobs investment trust. In order to
carry out the day-to-day management and control of the trust and effectuate the purposes of this
article, the board shall appoint an executive director who is or has been a senior executive of a
major financial institution, brokerage firm, investment firm or similar institution, with extensive
experience in capital market development. The board shall fix the executive director's duties.
The board shall fix the compensation of the executive director and the compensation shall, at least
in part, be incentive based. The executive director serves at the will and pleasure of the board
With the advice and consent of the Senate, the governor appoints an executive director of the jobs
investment trust who is or has been a senior executive of a major financial institution, brokerage
firm, investment firm or similar institution, with extensive experience in capital market
development. The director serves at the governor's will and pleasure and is responsible for
managing and administering the daily functions of the jobs investment trust and for performing
other functions necessary to the effective operation of the trust. The compensation of the director
is annually fixed by the board.
(b) The board shall elect a secretary annually elects a secretary to keep a record of the
proceedings of the board, who need not be a member of the board. to keep a record of the
proceedings of the board
(c) The members and officers of the board are not liable personally, either jointly or
severally, for any debt or obligation created by the board.
(d) The acts of the board are solely the acts of its corporation and are not those of an agent
of the state. No A debt or obligation of the board is not a debt or obligation of the state.
(e) Upon the affirmative vote of at least a majority of those members in attendance or
participating by such other means as described in subsection (g), section four of this article in a
meeting of the board, but in no any event not fewer than six of the members serving on the board,
the board may approve any action to be taken and authorize the executive director for and on
behalf of the board to execute and deliver all instruments, agreements or other documents that are
required or are reasonably necessary to effectuate the decisions or acts of the board.
(f) The West Virginia housing development fund shall provide office space and staff
support services for the director and the board shall act as fiscal agent for the board and, as such,
shall provide accounting services for the board, invest all funds as directed by the board, service
all investment activities of the board and shall make the disbursements of all funds as directed
by the board, for which the West Virginia housing development fund shall be reasonably
compensated as determined by the board.
(g) The board and the executive director shall involve students and faculty members of
state institutions of higher education in the board's activities in order to enhance the opportunities
at the institutions for learning and for participation in the board's investment activities and in the
economic development of the state, whether in research, financial analysis, management
participation or in such other ways as the board and the executive director may, in their discretion,
find appropriate.
CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL
DEVELOPMENT BOND ACT.
§13-2C-21. Ceiling on issuance of private activity bonds; establishing procedure for
allocation and disbursements; reservation of funds; limitations;
unused allocation; expirations and carryovers.
(a) Private activity bonds (as defined in Section 141(a) of the United States Internal
Revenue Code of 1986, other than those described in Section 146(g) of the Internal Revenue Code) issued pursuant to this article, including bonds issued by the West Virginia public energy
authority pursuant to subsection (11), section five, article one, chapter five-d of this code or under
article eighteen, chapter thirty-one of this code, during any calendar year may not exceed the
ceiling established by Section 146(d) of the United States Internal Revenue Code. It is hereby
determined and declared as a matter of legislative finding: (i) That, in an attempt to promote
economic revitalization of distressed urban and rural areas, certain special tax incentives will be
provided for empowerment zones and enterprise communities to be designated from qualifying
areas nominated by state and local governments, all as set forth by Section 1391, et seq., of the
United States Internal Revenue Code; (ii) that qualified businesses operating in enterprise
communities and empowerment zones will be eligible to finance property and provide other forms
of financial assistance as provided for in Section 1394 of the United States Internal Revenue
Code; and (iii) that it is in the best interest of this state and its citizens to facilitate the acquisition,
construction and equipping of projects within designated empowerment zones and enterprise
communities by providing an orderly mechanism for the commitment of the annual ceiling for
private activity bonds for these projects. It is hereby further determined and declared as a matter
of legislative finding: (i) That the production of bituminous coal in this state has resulted in coal
waste which is stored in areas generally referred to as gob piles; (ii) that gob piles are unsightly
and have the potential to pollute the environment in this state; (iii) that the utilization of the
materials in gob piles to produce alternative forms of energy needs to be encouraged; (iv) that
Section 142(a)(6) of the United States Internal Revenue Code of 1986 permits the financing of
solid waste disposal facilities through the issuance of private activity bonds; and (v) that it is in
the best interest of this state and its citizens to facilitate the construction of facilities for the
generation of power through the utilization of coal waste by providing an orderly mechanism for
the commitment of the annual ceiling for private activity bonds for these projects.
(b) On or before the first day of each calendar year, the executive director of the
development office shall determine the state ceiling for the year based on the criteria of the United
States Internal Revenue Code. The annual ceiling shall be allocated among the several issuers
of bonds under this article or under article eighteen, chapter thirty-one of this code as follows:
(1) For the calendar year two thousand one, fifty million dollars and for each subsequent
calendar year, forty percent of the state ceiling for that year shall be allocated to the West Virginia
housing development fund for the purpose of issuing qualified mortgage bonds, qualified
mortgage certificates or bonds for qualified residential rental projects;
(2) The amount remaining after the allocation to the West Virginia housing development
fund described in subdivision (1) of this subsection shall be retained by the West Virginia
development office and shall be referred to in this section as the "state allocation";
(3) Thirty-five percent of the state allocation shall be set aside by the development office
to be made available for lessees, purchasers or owners of proposed projects, hereafter in this
section referred to as "nonexempt projects", which do not qualify as exempt facilities as defined
by United States Internal Revenue Code. All reservations of private activity bonds for nonexempt
projects shall be approved and awarded by the committee based upon an evaluation of general
economic benefit and any rule that the council for community and economic development office
promulgates pursuant to section three two, article two, chapter five-b of this code: Provided, That
all requests or reservations of funds from projects described in this subsection are submitted to
the development office on or before the first day of November of each calendar year: Provided,
however, That on the fifteenth day of November of each calendar year, the uncommitted portion
of this part of the state allocation shall revert to and become part of the state allocation portion
described in subsection (g) of this section; and
(4) Ten percent of the state allocation shall be made available for lessees, purchasers or
owners of proposed commercial or industrial projects which qualify as exempt facilities under
Section 1394 of the United States Internal Revenue Code. All reservations of private activity
bonds for the projects shall be approved and awarded by the committee based upon an evaluation
of general economic benefit and any rule that the council for community and economic
development office promulgates pursuant to section three two, article two, chapter five-b of this
code: Provided, That all requests for reservations of funds from projects described in this
subsection shall be submitted to the development office on or before the first day of November
of each calendar year: Provided, however, That on the fifteenth day of November of each calendar year the uncommitted portion of this part of the state allocation shall revert to and
become part of the state allocation portion described in subsection (g) of this section.
(c) The remaining fifty-five percent of the state allocation shall be made available for
lessees, purchasers or owners of proposed commercial or industrial projects which qualify as
exempt facilities as defined by Section 142(a) of the United States Internal Revenue Code. All
reservations of private activity bonds for exempt facilities shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and any rule that the council for
community and economic development office promulgates pursuant to section three two, article
two, chapter five-b of this code: Provided, That no reservation may be in an amount in excess
of fifty percent of this portion of the state allocation: Provided, however, That all requests for
reservations of funds from projects described in this subsection shall be submitted to the
development office on or before the first day of November of each calendar year: Provided
further, That on the fifteenth day of November of each calendar year the uncommitted portion of
this part of the state allocation shall revert to and become part of the state allocation portion
described in subsection (g) of this section.
(d) No reservation may be made for any project until the governmental body seeking the
reservation submits a notice of reservation of funds as provided in subsection (e) of this section.
The governmental body shall first adopt an inducement resolution approving the prospective
issuance of bonds and setting forth the maximum amount of bonds to be issued. Each
governmental body seeking a reservation of funds following the adoption of the inducement
resolution shall submit a notice of inducement signed by its clerk, secretary or recorder or other
appropriate official to the development office. The notice shall include information required by
the development office pursuant to any rule of the council for community and economic
development office. Notwithstanding the foregoing, when a governmental body proposes to issue
bonds for the purpose of (i) Constructing, acquiring or equipping a project described in
subdivision (3) or (4), subsection (b) of this section; or (ii) constructing an energy producing
project which relies, in whole or in part, upon coal waste as fuel, to the extent the project qualifies
as a solid waste facility under Section 142(a)(6) of the United States Internal Revenue Code of 1986, the project may be awarded a reservation of funds from the state allocation available for
three years subsequent to the year in which the notice of reservation of funds is submitted, at the
discretion of the executive director of the development office: Provided, That no discretionary
reservation may be made for any single project described in this subsection in an amount in
excess of thirty-five percent of the state allocation available for the year subsequent to the year
in which the request is made.
(e) Currently with or following the submission of its notice of inducement, the
governmental body at any time considered expedient by it may submit its notice of reservation
of funds which shall include the following information:
(1) The date of the notice of reservation of funds;
(2) The identity of the governmental body issuing the bonds;
(3) The date of inducement and the prospective date of issuance;
(4) The name of the entity for which the bonds are to be issued;
(5) The amount of the bond issue or, if the amount of the bond issue for which a
reservation of funds has been made has been increased, the amount of the increase;
(6) The type of issue; and
(7) A description of the project for which the bonds are to be issued.
(f) The development office shall accept the notice of reservation of funds no earlier than
the first calendar workday of the year for which a reservation of funds is sought: Provided, That
a notice of reservation of funds with respect to a project described in subdivision (4), subsection
(b) of this section or an energy producing project that is eligible for a reservation of funds for a
year subsequent to the year in which the notice of reservation of funds is submitted may contain
an application for funds from a subsequent year's state allocation. Upon receipt of the notice of
reservation of funds, the development office shall immediately note upon the face of the notice
the date and time of reception.
(g) If the bond issue for which a reservation has been made has not been finally closed
within one hundred twenty days of the date of the reservation to be made by the committee, or
the thirty-first of December following the date of reservation if sooner and a statement of bond closure which has been executed by the clerk, secretary, recorder or other appropriate official of
the governmental body reserving the bond issue has not been received by the development office
within that time, then the reservation shall expire and be considered to have been forfeited and
the funds reserved shall be released and revert to the portion of the state allocation from which
the funds were originally reserved and shall then be made available for other qualified issues in
accordance with this section and the Internal Revenue Code: Provided, That as to any reservation
for a nonexempt project or any reservation for a project described in subdivision (4), subsection
(b) of this section that is forfeited on or after the first day of November in any calendar year, the
reservation shall revert to the state allocation for allocation by the industrial revenue bond
allocation review committee: Provided, however, That as to any notice of reservation of funds
received by the development office during the month of December in any calendar year with
respect to any project qualifying as an elective carry forward pursuant to Section 146(f)(5) of the
Internal Revenue Code, the notice of reservation of funds and the reservation to which the notice
relates may not expire or be subject to forfeiture: Provided further, That any unused state ceiling
as of the thirty-first day of December in any year not otherwise subject to a carry forward pursuant
to Section 146(f) of the Internal Revenue Code shall be allocated to the West Virginia housing
development fund which shall be considered to have elected to carry forward the unused state
ceiling for the purpose of issuing qualified mortgage bonds, qualified mortgage credit certificates
or bonds for qualified residential rental projects, each as defined in the Internal Revenue Code.
All requests for subsequent reservation of funds upon loss of a reservation pursuant to this section
shall be treated in the same manner as a new notice of reservation of funds in accordance with
subsections (d) and (e) of this section.
(h) Once a reservation of funds has been made for a project described in subdivision (4),
subsection (b) of this section, notwithstanding the language of subsection (g) of this section, the
reservation shall remain fully available with respect to the project until the first day of October
in the year from which the reservation was made at which time, if the bond issue has not been
finally closed, the reservation shall expire and be considered forfeited and the funds reserved are
released as provided in said subsection.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 24. WASTE TIRE REMEDIATION.
§17-24-4. Division of highways to administer funds for wastetire remediation; rules
authorized; duties of commissioner.
(a) The division of highways shall administer all funds made available to the division for
remediation of waste tire piles and for the proper disposal of waste tires removed from waste tire
piles. The commissioner of the division of highways may: (i) Propose for legislative
promulgation in accordance with article three, chapter twenty-nine-a of this code emergency and
legislative rules necessary to implement the provisions of this article; and (ii) administer all funds
appropriated by the Legislature to carry out the requirements of this article and any other funds
from whatever source, including, but not limited to, federal, state or private grants.
(b) The commissioner also has the following powers: (1) To apply and carry out the
provisions of this article and the rules promulgated under this article. (2) To investigate, from
time to time, the operation and effect of this article and of the rules promulgated under this article
and to report his or her findings and recommendations to the Legislature and the governor.
(c) The provisions of articles two-a and four of this chapter and the policy, rules, practices
and procedures under those articles shall be followed by the commissioner in carrying out the
purposes of this article.
(d) On or before the first day of June, two thousand one, the commissioner shall determine
the location, approximate size and potential risk to the public of all waste tire piles in the state
and establish, in descending order, a waste tire remediation list. (e) The commissioner may
contract with the department of health and human resources or the division of corrections, or
both, to remediate or assist in remediation of waste tire piles throughout the state. Use of
available department of health and human resources and the division of corrections work
programs shall be given priority status in the contract process so long as such programs prove a
cost-effective method of remediating waste tire piles.
(f) Waste tire remediation shall be stopped and the division of environmental protection
notified upon the discovery of any potentially hazardous material at a remediation site. The division of environmental protection shall respond to the notification in accordance with the
provisions of article eighteen, chapter twenty-two of this code.
(g) The commissioner may establish a tire disposal program within the division to provide
for a cost effective and efficient method to accept passenger car and light truck waste tires at such
division of highways county headquarters as have sufficient space for temporary storage of waste
tires and personnel to accept and handle waste tires. The commissioner may pay a fee for each
tire an individual West Virginia resident or West Virginia business brings to the division. The
commissioner may establish a limit on the number of tires an individual or business may be paid
for during any calendar month. The commissioner may in his or her discretion authorize
commercial businesses to participate in the collection program: Provided, That no person or
business who has a waste tire pile subject to remediation under this article may participate in this
program.
(h) The commissioner may pledge not more than two and one-half million dollars annually
of the moneys appropriated, deposited or accrued in the A. James Manchin fund created by
section six of this article, to the payment of debt service, including the funding of reasonable
reserves, on bonds issued by the water development authority pursuant to section seventeen-a,
article fifteen-a, chapter thirty-one of this code to finance infrastructure projects relating to waste
tire processing facilities located in this state: Provided, That a waste tire processing facility shall
be determined by the solid waste management board, established pursuant to the provisions of
article three, chapter twenty-two-c of this code, to meet all applicable federal and state
environmental laws and rules and regulations and to aid the state in efforts to promote and
encourage recycling and use of constituent component parts of waste tires in an environmentally
sound manner: Provided, however, That the waste tire processing facility shall have a capital cost
of not less than three hundred million dollars, and the council for community and economic West
Virginia development office shall determine that the waste tire processing facility is a viable
economic development project of benefit to the state's economy.
CHAPTER 18. EDUCATION.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-1. School building authority; powers.
(a) The school building authority shall consist consists of ten persons, eleven members,
including the governor or designee; of whom one shall be the state superintendent of schools, ex
officio; three shall be members of the state board of education, elected by the state board; and six
shall be citizens of the state, appointed by the governor, by and with the advice and consent of
the Senate, who are knowledgeable in matters relevant to the issues addressed by the authority,
one of whom shall be is representative of the interests of the construction trades.
(b) The citizen appointments shall be made as soon as possible after the effective date of
this section, and no two citizen appointees shall be residents within the same region. Two of the
initial appointments shall be for two-year terms, and two shall be for four-year terms, with all
successive appointments being for four-year terms. Until such appointments take effect, the state
board as constituted under the provisions of section one, article two of this chapter may act as the
authority with such power as was granted them under the prior enactment of this section. Citizen
members are appointed for three-year terms, which are staggered in accordance with the initial
appointments under prior enactment of this section. State board of education members are elected
for three-year terms, and may not be elected to serve additional consecutive terms or portions
thereof.
(c) The governor or designee serves as chair. The authority shall annually elect one of its
public members as vice chair, and shall appoint a secretary, who need not be a member of the
authority and who shall keep records of its proceedings.
(d) The governor appoints an executive director of the authority, with the advice and
consent of the Senate, who serves at the governor's will and pleasure. The director is responsible
for managing and administering the daily functions of the authority and for performing all other
functions necessary to the effective operation of the authority.
(e) The governor may remove any appointed member for incompetency, neglect of duty,
moral turpitude or malfeasance in office. If the governor removes a member, the governor shall
fill the vacancy for the remainder of the unexpired term in the same manner as the original
appointment.
(f) The school building authority shall meet at least quarterly, and the citizen members
shall be reimbursed for reasonable and necessary expenses actually incurred in the performance
of their official duties in a manner consistent with guidelines of the travel management office of
the department of administration from funds appropriated or otherwise made available for such
purpose upon submission of an itemized statement. therefor. The state superintendent of schools
shall serve as president of the authority.
(g) The acts performed by the members of the state board of education in their capacity
as members of the school building authority are solely the acts of the authority.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 3D. WORKFORCE DEVELOPMENT INITIATIVE.
§18B-3D-1. Legislative findings and intent.
(a) The Legislature finds that a recent statewide study of the workforce training needs of
employers throughout the state provided a clear message from the business community:
(1) The needs of employers are rapidly changing and training providers must be more
responsive or the state economy will suffer;
(2) Information specific to West Virginia, once again emphasizes the critical link between
education and economic development that empowering youth and adults with the knowledge and
skills they need to succeed in the competitive work world also results in a workforce which
enables businesses and communities to prosper;
(3) Although employers are generally satisfied with the quality of the West Virginia
workforce and the study provides additional support that the measures adopted in the Jobs
Through Education Act will bring continued improvement, workforce needs are not static, critical
skill shortages currently exist, and the establishment of a workforce development system that
responds more quickly to the evolving skill requirements of employers is needed.
(b) The Legislature further finds that a study of community and technical education in
West Virginia performed by the national center for higher education management systems called
attention to problems in providing needed workforce education and found that there is a need to:
(1) Jump-start development of community and technical college and postsecondary workforce development initiatives;
(2) Provide incentives for existing public postsecondary providers to respond jointly to
both short and long-term needs of employers and other clients;
(3) Provide funding for explicit incentives for partnerships between employers and public
postsecondary institutions to develop comprehensive community and technical college and
workforce development services; and
(4) Allocate funds competitively on the basis of proposals submitted by providers.
(c) It is further the intent of the Legislature that the granting of funds under this article will
promote the development of comprehensive community and technical colleges as set forth in
article three-c of this chapter.
(d) It is the intent of the Legislature through the grant of funds under this article to provide
limited seed money to address some of the specific areas where improvement is needed,
including:
(1) Improving employer awareness and access to services available through the state's
education institutions;
(2) Providing designated professionals and resources to support workforce education
through the state's education institutions;
(3) Assisting with the modernization and procurement of equipment needed for workforce
training programs: Provided, That any equipment purchased or upgraded with grant funds
awarded under the provisions of this article may not be sold, disposed of or used for purposes
other than those specified in the grant without prior approval of the council development office;
(4) Increasing the capacity of the state's education institutions to respond rapidly to
employer needs for workforce education, and training on an on-going basis through the
development of a client-focused, visible point of contact for program development and delivery,
service referral and needs assessment, such as a workforce development center; and
(5) Maximizing the use of available resources for workforce education and training
through partnerships with public vocational, technical and adult education centers and private
training providers.
(e) It is further the intent of the Legislature that consideration and partnering opportunities
be given to small businesses on an equal basis with larger businesses for the purposes of this
article and that the seed money will assist providers in becoming self-sustaining through
partnerships with business and industry which will include cost-sharing initiatives and fees
charged for the use of services.
(f) The Legislature intends that grants of funds made under the provisions of this article
will be competitive among applicants who meet all of the criteria established in this article and
such other criteria as may be specified by the council development office. Subject to the
availability of funds, more than one competition may be held during the same fiscal year and the
dollar range of awards granted in successive competitions shall be prorated based on the number
of months remaining in the fiscal year. Subject to annual review and justification, it is the intent
of the Legislature to renew grant awards made under this article each year for not more than five
years following the initial grant award.
§18B-3D-2. Workforce development initiative program created; program administration.
(a) For the purposes of this article "Council Development office" means the council for
community and economic development as defined in section two, West Virginia development
office provided in article two, chapter five-b of this code.
(b) There is hereby created under the council development office a workforce
development initiative program to administer and oversee grants to community and technical
colleges to achieve the purposes of this article in accordance with legislative intent. The primary
responsibility of the council development office as it relates to the workforce development
initiative program is to administer the state fund for community and technical college and
workforce development including setting criteria for grant applications, receiving applications
for grants, making determinations on distribution of funds, and evaluating the performance of
workforce development initiatives.
(c) The council executive director of the development office shall review and approve the
expenditure of all grant funds, including development of application criteria, the review and
selection of applicants for funding, and the annual review and justification of applicants for grant renewal.
(1) To aid in decision making, the council shall appoint executive director of the
development office appoints an advisory committee consisting of the vice chancellor for
community and technical colleges chancellor of the West Virginia council for community and
technical college education; the secretary of education and the arts or a designee; the assistant
state superintendent for technical and adult education; the chair of the West Virginia council for
community and technical college education; and the chair of the West Virginia workforce
investment council. The advisory committee shall review all applications for workforce
development initiative grants and make a report including recommendations for distributing grant
funds to the council executive director of the development office. The advisory committee also
shall make recommendations on methods to share among the community and technical colleges
any curricula developed as a result of a workforce development initiative grant.
(2) When determining which grant proposals will be funded, the council executive
director of the development office shall give special consideration to proposals by community and
technical colleges that involve businesses with fewer than fifty employees.
(3) The council executive director of the development office also shall weigh each
proposal to avoid awarding grants which will have the ultimate effect of providing unfair
advantage to employers new to the state who will be in direct competition with established local
businesses.
(d) The council executive director of the development office may allocate a reasonable
amount, not to exceed five percent up to a maximum of fifty thousand dollars of the funds
available for grants on an annual basis, for general program administration.
(e) The head of the council executive director of the development office shall report to the
legislative oversight commission on workforce investment for economic development on the
status of the workforce development initiative program annually by the first day of December.
two thousand four, and annually thereafter by the first day of December
(f) Moneys appropriated or otherwise available for the workforce development initiative
program shall be allocated by line item to an appropriate account. Any moneys remaining in the fund at the close of a fiscal year shall be are carried forward for use in the next fiscal year.
(g) Nothing in this article requires a specific level of appropriation by the Legislature.
§18B-3D-3. Mission of the workforce development initiative program.
(a) The statewide mission of the workforce development initiative program is to develop
a strategy to strengthen the quality of the state's workforce by linking the existing postsecondary
education capacity to the needs of business, industry and other employers. Available funding will
be used to provide explicit incentives for partnerships between employers and community and
technical colleges to develop comprehensive workforce development services. Funds will be
granted on the basis of proposals developed according to criteria established by the council
development office.
(b) The mission of any community and technical college accepting a workforce
development initiative grant is to:
(1) Become client-focused and develop programs that meet documented employer needs;
(2) Involve and collaborate with employers in the development of programs;
(3) Develop customized training programs that provide for the changing needs of
employers and that are offered at flexible times and locations to accommodate employer
scheduling;
(4) Develop partnerships with other public and private providers, including small business
development centers and, vocational, technical and adult education centers, and with business and
labor, to fulfill the workforce development needs of the service area;
(5) Establish cooperative arrangements with the public school system for the seamless
progression of students through programs of study that begin at the secondary level and conclude
at the community and technical college level, particularly with respect to career and technical
education certificates, associate of applied science and selected associate of science degree
programs for students seeking immediate employment, individual entrepreneurship skills,
occupational development, skill enhancement and career mobility.
(6) Assist in the on-going assessment of the workforce development needs of the service
area; and
(7) Serve as a visible point of contact and referral for services to meet the workforce
development needs of the service area.
§18B-3D-4. Grant application procedures.
(a) In order to participate in the workforce development initiative grant program, a
community and technical college must meet the following conditions:
(1) Establish a consortia committee Participate in a community and technical college
consortia as required by section seven article three-c of this chapter. The consortia committee
or a subcommittee thereof Consortia representatives shall participate in the development of and
approve applications for funding grants under the provisions of this article, and shall approve the
workforce development initiative budget;
(2) Develop a plan to achieve measurable improvements in the quality of the workforce
within its service area over a five-year period. The plan must be developed in partnership with
employers, local vocational schools, and other workforce education providers;
(3) Establish a special revolving fund under the jurisdiction of the consortia committee
community and technical college consortia dedicated solely to workforce development initiatives
for the purposes provided in this article. Any fees or revenues generated from workforce
development initiatives funded by a competitive grant shall be deposited into this fund.
(b) To be eligible to receive a workforce development initiative grant, a community and
technical college must provide at least the following information in its application:
(1) Identification of the specific business or business sector training needs that will be met
if a workforce development initiative grant is received;
(2) A commitment from the private sector to provide a match of one dollar, cash and
in-kind, for each dollar of state grant money received except in cases where the community and
technical college can demonstrate in the grant application that it would be a hardship for the
business being served to provide such a match. In those cases only, the match required may be
reduced to one private dollar, cash and in-kind, for every three dollars of state grant money
provided. In the case of awards for the modernization of procurement of equipment, the council
development office may establish a separate match requirement of up to one dollar, cash and in-kind, for each dollar of state grant money received;
(3) An agreement to share with other community and technical colleges any curricula
developed using funds from a workforce development initiative grant;
(4) A specific plan showing how the community and technical college will collaborate
with local postsecondary vocational institutions to maximize the use of existing facilities,
personnel and equipment;
(5) An acknowledgment that acceptance of a grant under the provisions of this article
commits the community and technical college and its consortia committee to such terms,
conditions and deliverables as is specified by the council development office in the request for
applications, including, but not limited to, the measures by which the performance of the
workforce development initiative will be evaluated.
(c) Applications submitted by community and technical colleges may be awarded funds
for programs which meet the requirements of this article that are operated on a collaborative basis
at facilities under the jurisdiction of the public schools and utilized by both secondary and
post-secondary students.
§18B-3D-5. Legislative rules.
The council executive director of the development office shall propose a legislative rule
pursuant to article three-a, chapter twenty-nine-a of this code to implement the provisions of this
article and shall file the rule with the legislative oversight commission on education
accountability no later than the first day of September, one thousand nine hundred ninety-nine two
thousand five.
Any rule in effect as of the effective date of the amendment and reenactment of this
section in the year two thousand five will remain in effect until amended, modified, repealed or
replaced.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-4. Water development authority; water development board; organization of authority and board; appointment of board members; their term of
office, compensation and expenses; director of authority;
compensation.
(a) The water development authority is continued. The authority is a governmental
instrumentality of the state and a body corporate. The exercise by the authority of the powers
conferred by this article and the carrying out of its purposes and duties are essential governmental
functions and for a public purpose.
(b) The authority is controlled, managed and operated by the a seven-member board
known as the water development board. The governor or designee, the secretary of the
department director of the division of environmental protection or designee, and the
commissioner of the bureau for public health and the state officer or employee who, in the
judgment of the governor, is most responsible for economic or community development or
designee are members ex officio of the board. The governor shall designate annually the member
who is the state officer or employee most responsible for economic or community development.
The other four members of the board Four members are appointed by the governor, by and with
the advice and consent of the Senate, for six-year terms, which are staggered in accordance with
the initial appointments under prior enactment of this section. of two, three, four and six years,
respectively. The successor of each such appointed member shall be appointed for a term of six
years in the same manner the original appointments were made except that any person appointed
to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was
appointed shall be appointed only for the remainder of such term. Each board member serves In
the event of a vacancy, appointments are filled in the same manner as the original appointment
for the remainder of the unexpired term. A member continues to serve until the appointment and
qualification of his or her the successor. No More than two of the appointed board members shall
may not at any one time belong to the same political party. Appointed board members may be
reappointed to serve additional terms.
(c) All members of the board shall be citizens of the state. Each appointed member of the
board, before entering upon his or her duties, shall comply with the requirements of article one, chapter six of this code and give bond in the sum of twenty-five thousand dollars in the manner
provided in article two of said chapter. The governor may remove any board member for cause
as provided in article six of said chapter.
(d) Annually The governor or designee serves as chair. The board shall elect annually
elects one of its appointed members as chair and another as vice chair and shall appoint appoints
a secretary-treasurer, who need not be a member of the board. Four members of the board is a
quorum and the affirmative vote of four members is necessary for any action taken by vote of the
board. No A vacancy in the membership of the board impairs does not impair the rights of a
quorum by such vote to exercise all the rights and perform all the duties of the board and the
authority. The person appointed as secretary-treasurer, including a board member if he or she is
so appointed, shall give bond in the sum of fifty thousand dollars in the manner provided in article
two, chapter six of this code.
(e) The governor or designee, the secretary of the division department of environmental
protection and the commissioner of the bureau for public health and the state officer or employee
most responsible for economic or community development shall do not receive any compensation
for serving as board members. Each of the four appointed members of the board shall receive
appointed member receives an annual salary of twelve thousand dollars, payable in monthly
installments. Each of the seven board members shall be is reimbursed for all reasonable and
necessary expenses actually incurred in the performance of his or her duties as a member of the
board in a manner consistent with guidelines of the travel management office of the department
of administration. All expenses incurred by the board are payable solely from funds of the
authority or from funds appropriated for that purpose by the Legislature. and no Liability or
obligation shall be is not incurred by the authority beyond the extent to which moneys are
available from funds of the authority or from such appropriations.
(f) There shall also be is a director of the authority appointed by the board governor, with
the advice and consent of the Senate, who serves at the governor's will and pleasure. The director
is responsible for managing and administering the daily functions of the authority and for
performing other functions necessary to the effective operation of the authority.
The compensation of the director shall be fixed is fixed annually by the board.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 8. BLENNERHASSETT ISLAND HISTORICAL STATE PARK
COMMISSION.
\§29-8-2. Blennerhassett Island historical state park commission established; members;
terms; meeting; quorum; compensation; expenses.
(a) There is continued within the bureau of commerce division of natural resources the
Blennerhassett Island historical state park commission. All assets, real and personal property,
debts, liabilities, duties, powers and authority previously transferred to the bureau of commerce
from the Blennerhassett Island historical state park commission are continued in the bureau of
commerce are the property of the division of natural resources. The Blennerhassett Island
historical state park commission is maintained as an advisory commission as hereinafter provided.
The commission is composed of ten members who must be citizens and residents of this state,
appointed by the governor for terms of four years, by and with the advice and consent of the
Senate: Provided, That the terms of all members previously appointed to the Blennerhassett
Island historical state park commission prior to any amendment and reenactment of this section
shall continue for the periods originally specified, and no member serving as of the effective date
of the amendment and reenactment need be reappointed.
(b) Each member must be qualified to carry out the functions of the commission under this
article by reason of his or her special interest, training, education or experience.
No person may be eligible to appointment as a member who is an officer or member of
any political party executive committee; or the holder of any other public office or public
employment under the United States government or the government of this state or a political
subdivision of this state. Not more than six members may belong to the same political party.
(c) The commission shall elect a chairman from among its members on the second
Monday in September of each year.
(d) All members are eligible for reappointment once by the governor. A member shall,
unless sooner removed, continue to serve until his or her term expires and his or her successor has been appointed and has qualified. A vacancy caused by the death, resignation or removal of
a member prior to the expiration of his or her term shall be filled only for the remainder of term.
(e) For the purpose of carrying out its powers, duties and responsibilities under this article,
six members of the commission constitute a quorum for the transaction of business. Each
member is entitled to one vote. The commission shall meet at a time and place designated by the
chairman at least four times each fiscal year. Additional meetings may be held when called by
the chairman or when requested by five members of the commission or by the governor. All
meetings shall comply with the provisions of article nine-a, chapter six of this code. Each
member shall be reimbursed for all reasonable and necessary expenses actually incurred in the
performance of his or her duties under this article.
(f) The commission shall advise the bureau of commerce division of natural resources in
all matters relating to the development, establishment and maintenance of the Blennerhassett
Island historical state park.
(g) All employee positions in the former Blennerhassett Island historical state park
commission transferred to the division of commerce by a previous amendment and reenactment
of this section are continued in the classified service of the civil service system pursuant to article
six of this chapter. Any person included in the classified service by the provisions of this section
who is employed in any of these positions as of the effective date of any amendment and
reenactment of this section shall not be required to take and pass qualifying or competitive
examinations upon or as a condition to being added to the classified service: Provided, That no
person included in the classified service by the provisions of this section who is employed in any
of these positions as of the effective date of any amendment and reenactment of this section, be
thereafter severed, removed or terminated from such employment prior to his or her entry into the
classified service except for cause as if the person had been in the classified service when severed,
removed or terminated.
(i) Notwithstanding any provision of this code to the contrary, the bureau of commerce
division of natural resources is vested with exclusive regulatory authority over watercraft
transport of visitors to the Blennerhassett Island portion of the Blennerhassett Island historical state park, and the watercraft transport of these visitors is not subject to the provisions of article
eighteen, chapter seventeen of this code.
(j) Notwithstanding the provisions of section fifty-eight, article two, chapter twenty of this
code, the natural resources commission shall promulgate rules pursuant to the provisions of
section seventeen, article one, chapter twenty and section three, article one, chapter twenty-nine-a
of this code to permit and regulate the hunting of white-tailed deer at Blennerhassett Island
historical state park.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State excess lottery revenue fund.
(a) There is continued a special revenue fund within the state lottery fund in the state
treasury which is designated and known as the "state excess lottery revenue fund." The fund
consists of all appropriations to the fund and all interest earned from investment of the fund and
any gifts, grants or contributions received by the fund. All revenues received under the provisions
of sections ten-b and ten-c, article twenty-two-a of this chapter and under article twenty-two-b
of this chapter, except the amounts due the commission under section 29-22B-1408(a)(1) of this
chapter, shall be deposited in the state treasury and placed into the "state excess lottery revenue
fund." The revenue shall be disbursed in the manner provided in this section for the purposes
stated in this section and shall not be treated by the auditor and the state treasurer as part of the
general revenue of the state.
(b) For the fiscal year beginning the first day of July, two thousand two, the commission
shall deposit: (1) Sixty-five million dollars into the subaccount of the state excess lottery revenue
fund hereby created in the state treasury to be known as the "general purpose account" to be
expended pursuant to appropriation of the Legislature; (2) ten million dollars into the education
improvement fund for appropriation by the Legislature to the "promise scholarship fund" created
in section seven, article seven, chapter eighteen-c of this code; (3) nineteen million dollars into
the economic development project fund created in subsection (d) of this section for the issuance
of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) twenty
million dollars into the school building debt service fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) forty million dollars into the
West Virginia infrastructure fund created in section nine, article fifteen-a, chapter thirty-one of
this code to be spent in accordance with the provisions of said article; (6) ten million dollars into
the higher education improvement fund for higher education; and (7) five million dollars into the
state park improvement fund for park improvements. For the fiscal year beginning the first day
of July, two thousand three, the commission shall deposit: (1) Sixty-five million dollars into the
general purpose account to be expended pursuant to appropriation of the Legislature; (2)
seventeen million dollars into the education improvement fund for appropriation by the
Legislature to the "promise scholarship fund" created in section seven, article seven, chapter
eighteen-c of this code; (3) nineteen million dollars into the economic development project fund
created in subsection (d) of this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) twenty million dollars into the school
building debt service fund created in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the West Virginia infrastructure fund
created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance
with the provisions of said article; (6) ten million dollars into the higher education improvement
fund for higher education; and (7) five million dollars into the state park improvement fund for
park improvements.
(c) For the fiscal year beginning the first day of July, two thousand four, and subsequent
fiscal years, the commission shall deposit: (1) Sixty-five million dollars into the general purpose
account to be expended pursuant to appropriation of the Legislature; (2) twenty-seven million
dollars into the education improvement fund for appropriation by the Legislature to the "promise
scholarship fund" created in section seven, article seven, chapter eighteen-c of this code; (3)
nineteen million dollars into the economic development project fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in accordance with the provisions
of said subsection; (4) nineteen million dollars into the school building debt service fund created
in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5)
forty million dollars into the West Virginia infrastructure fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said
article; (6) ten million dollars into the higher education improvement fund for higher education;
and (7) five million dollars into the state park improvement fund for park improvements. No
portion of the distributions made as provided in this subsection and subsection (b) of this section,
except distributions made in connection with bonds issued under subsection (d) of this section,
may be used to pay debt service on bonded indebtedness until after the Legislature expressly
authorizes issuance of the bonds and payment of debt service on the bonds through statutory
enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until
subsequent legislative enactment or adoption of a resolution that expressly authorizes issuance
of the bonds and payment of debt service on the bonds with funds distributed under this
subsection and subsection (b) of this section, except distributions made in connection with bonds
issued under subsection (d) of this section, the distributions may be used only to fund capital
improvements that are not financed by bonds and only pursuant to appropriation of the
Legislature.
(d) The Legislature finds and declares that in order to attract new business, commerce and
industry to this state, to retain existing business and industry providing the citizens of this state
with economic security and to advance the business prosperity of this state and the economic
welfare of the citizens of this state, it is necessary to provide public financial support for
constructing, equipping, improving and maintaining economic development projects, capital
improvement projects and infrastructure which promote economic development in this state.
(1) The West Virginia economic development authority created and provided for in article
fifteen, chapter thirty-one of this code shall, by resolution, in accordance with the provisions of
this article and article fifteen, chapter thirty-one of this code, and upon direction of the governor,
issue revenue bonds of the economic development authority in no more than two series to pay for
all or a portion of the cost of constructing, equipping, improving or maintaining projects under
this section or to refund the bonds at the discretion of the authority. Any revenue bonds issued
on or after the first day of July, two thousand two, which are secured by state excess lottery
revenue proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on, the bonds shall be
payable solely from the special fund provided in this section for the payment.
(2) There is continued in the state treasury a special revenue fund named the "economic
development project fund" into which shall be deposited on and after the first day of July, two
thousand two, the amounts to be deposited in said fund as specified in subsections (b) and (c) of
this section. The economic development project fund shall consist of all such moneys, all
appropriations to the fund, all interest earned from investment of the fund and any gifts, grants
or contributions received by the fund. All amounts deposited in the fund shall be pledged to the
repayment of the principal, interest and redemption premium, if any, on any revenue bonds or
refunding revenue bonds authorized by this section, including any and all commercially
customary and reasonable costs and expenses which may be incurred in connection with the
issuance, refunding, redemption or defeasance thereof. The West Virginia economic
development authority may further provide in the resolution and in the trust agreement for
priorities on the revenues paid into the economic development project fund as may be necessary
for the protection of the prior rights of the holders of bonds issued at different times under the
provisions of this section. The bonds issued pursuant to this subsection shall be separate from
all other bonds which may be or have been issued from time to time under the provisions of this
article.
(3) After the West Virginia economic development authority has issued bonds authorized
by this section and after the requirements of all funds have been satisfied, including any coverage
and reserve funds established in connection with the bonds issued pursuant to this subsection, any
balance remaining in the economic development project fund may be used for the redemption of
any of the outstanding bonds issued under this subsection which, by their terms, are then
redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the
price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately
canceled and shall not again be issued.
(4) Bonds issued under this subsection shall state on their face that the bonds do not
constitute a debt of the state of West Virginia; that payment of the bonds, interest and charges thereon cannot become an obligation of the state of West Virginia; and that the bondholders'
remedies are limited in all respects to the "special revenue fund" established in this subsection
for the liquidation of the bonds.
(5) The West Virginia economic development authority shall expend the bond proceeds
from the revenue bond issues authorized and directed by this section for such projects as may be
certified under the provision of this subsection: Provided, That the bond proceeds shall be
expended in accordance with the requirements and provisions of article five-a, chapter twenty-one
of this code and either article twenty-two or twenty-two-a, chapter five of this code, as the case
may be: Provided, however, That if such bond proceeds are expended pursuant to article
twenty-two-a, chapter five of this code and if the design-build board created under said article
determines that the execution of a design-build contract in connection with a project is
appropriate pursuant to the criteria set forth in said article and that a competitive bidding process
was used in selecting the design builder and awarding such contract, such determination shall be
conclusive for all purposes and shall be deemed to satisfy all the requirements of said article.
(6) For the purpose of certifying the projects that will receive funds from the bond
proceeds, a committee is hereby established and comprised of the governor, or his or her
designee, the secretary of the department of tax and revenue, the executive director of the West
Virginia development office and six persons appointed by the governor: Provided, That at least
one citizen member must be from each of the state's three congressional districts. The committee
shall meet as often as necessary and make certifications from bond proceeds in accordance with
this subsection. The committee shall meet within thirty days of the effective date of this section.
(7) Applications for grants submitted on or before the first day of July, two thousand two,
shall be considered refiled with the committee. Within ten days from the effective date of this
section as amended in the year two thousand three, the lead applicant shall file with the committee
any amendments to the original application that may be necessary to properly reflect changes in
facts and circumstances since the application was originally filed with the committee.
(8) When determining whether or not to certify a project, the committee shall take into
consideration the following:
(A) The ability of the project to leverage other sources of funding;
(B) Whether funding for the amount requested in the grant application is or reasonably
should be available from commercial sources;
(C) The ability of the project to create or retain jobs, considering the number of jobs, the
type of jobs, whether benefits are or will be paid, the type of benefits involved and the
compensation reasonably anticipated to be paid persons filling new jobs or the compensation
currently paid to persons whose jobs would be retained;
(D) Whether the project will promote economic development in the region and the type
of economic development that will be promoted;
(E) The type of capital investments to be made with bond proceeds and the useful life of
the capital investments; and
(F) Whether the project is in the best interest of the public.
(9) No grant may be awarded to an individual or other private person or entity. Grants
may be awarded only to an agency, instrumentality or political subdivision of this state or to an
agency or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may be certified to receive a low-interest
loan paid from bond proceeds. The terms and conditions of the loan, including, but not limited
to, the rate of interest to be paid and the period of the repayment, shall be determined by the
economic development authority after considering all applicable facts and circumstances.
(10) Prior to making each certification, the committee shall conduct at least one public
hearing, which may be held outside of Kanawha County. Notice of the time, place, date and
purpose of the hearing shall be published in at least one newspaper in each of the three
congressional districts at least fourteen days prior to the date of the public hearing.
(11) The committee may not certify a project unless the committee finds that the project
is in the public interest and the grant will be used for a public purpose. For purposes of this
subsection, projects in the public interest and for a public purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports and sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater treatment facilities, pumping
facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and facilities;
(F) Industrial parks, including construction of roads, sewer, water, lighting and other
facilities;
(G) Improvements at state parks, such as construction, expansion or extensive renovation
of lodges, cabins, conference facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs on public or private land
necessary to retain existing businesses or attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking and hiking trails, bike trails,
picnic facilities, restrooms, boat docking and fishing piers, basketball and tennis courts, and
baseball, football and soccer fields;
(J) State-owned buildings that are registered on the national register of historic places;
(K) Retail facilities, including related service, parking and transportation facilities,
appropriate lighting, landscaping and security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic development, educational
opportunities or tourism opportunities thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection, the committee shall certify to
the economic development authority a list of those certified projects that will receive funds from
the proceeds of the bonds. Once certified, the list may not thereafter be altered or amended other
than by legislative enactment.
(13) If any proceeds from sale of bonds remain after paying costs and making grants and
loans as provided in this subsection, the surplus may be deposited in an account created in the
state treasury to be known as the "economic development project bridge loan fund" to be
administered by the council for community and economic development economic development
authority created in section two, article two fifteen, chapter five-b thirty-one of this code. Expenditures from the fund are not authorized from collections but are to be made only in
accordance with appropriation by the Legislature and in accordance with the provisions of article
three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter
five-a of this code. Loan repayment amounts, including the portion attributable to interest shall
be paid into the fund created in this subdivision.
(e) If the commission receives revenues in an amount that is not sufficient to fully comply
with the requirements of subsections (b), (c) and (h) of this section, the commission shall first
make the distribution to the economic development project fund; second, make the distribution
or distributions to the other funds from which debt service is to be paid; third, make the
distribution to the education improvement fund for appropriation by the Legislature to the
promise scholarship fund; and fourth, make the distribution to the general purpose account:
Provided, That, subject to the provisions of this subsection, to the extent such revenues are not
pledged in support of revenue bonds which are or may be issued from time to time under this
section, the revenues shall be distributed on a pro rata basis.
(f) For the fiscal year beginning on the first day of July, two thousand two, and each fiscal
year thereafter, the commission shall, after meeting the requirements of subsections (b), (c) and
(h) of this section and after transferring to the state lottery fund created under section eighteen of
this article an amount equal to any transfer from the state lottery fund to the excess lottery fund
pursuant to subsection (f), section eighteen of this article, deposit fifty percent of the amount by
which annual gross revenue deposited in the state excess lottery revenue fund exceeds two
hundred twenty-five million dollars in a fiscal year in a separate account in the state lottery fund
to be available for appropriation by the Legislature.
(g) When bonds are issued for projects under subsection (d) of this section or for the
school building authority, infrastructure, higher education or park improvement purposes
described in this section that are secured by profits from lotteries deposited in the state excess
lottery revenue fund, the lottery director shall allocate first to the economic development project
fund an amount equal to one tenth of the projected annual principal, interest and coverage
requirements on any and all revenue bonds issued, or to be issued, on or after the first day of July, two thousand two, as certified to the lottery director; and second, to the fund or funds from which
debt service is paid on bonds issued under this section for the school building authority,
infrastructure, higher education and park improvements an amount equal to one tenth of the
projected annual principal, interest and coverage requirements on any and all revenue bonds
issued, or to be issued, on or after the first day of April, two thousand two, as certified to the
lottery director. In the event there are insufficient funds available in any month to transfer the
amounts required pursuant to this subsection, the deficiency shall be added to the amount
transferred in the next succeeding month in which revenues are available to transfer the
deficiency.
(h) In fiscal year two thousand four and thereafter, prior to the distributions provided in
subsection (c) of this section, the lottery commission shall deposit into the general revenue fund
amounts necessary to provide reimbursement for the refundable credit allowable under section
twenty-one, article twenty-one, chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities in the expenditure of any
surplus revenue funds:
(A) Providing salary and/or increment increases for professional educators and public
employees;
(B) Providing adequate funding for the public employees insurance agency; and
(C) Providing funding to help address the shortage of qualified teachers and substitutes
in areas of need, both in number of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by any court to require any
appropriation or any specific appropriation or level of funding for the purposes set forth in this
subsection.
(j) The Legislature further directs the governor to focus resources on the creation of a
prescription drug program for senior citizens by pursuing a medicaid waiver to offer prescription
drug services to senior citizens; by investigating the establishment of purchasing agreements with
other entities to reduce costs; by providing discount prices or rebate programs for seniors; by
coordinating programs offered by pharmaceutical manufacturers that provide reduced cost or free drugs; by coordinating a collaborative effort among all state agencies to ensure the most efficient
and cost effective program possible for the senior citizens of this state; and by working closely
with the state's congressional delegation to ensure that a national program is implemented. The
Legislature further directs that the governor report his progress back to the joint committee on
government and finance on an annual basis beginning in November of the year two thousand one
until a comprehensive program has been fully implemented.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-3. West Virginia infrastructure and jobs development council continued;
members of council; staff of council.
(a) The West Virginia infrastructure and jobs development council is hereby continued.
The council is a governmental instrumentality of the state. The exercise by the council of the
powers conferred by this article and the carrying out of its purpose and duties shall be considered
and held to be, and are hereby determined to be, essential governmental functions and for a public
purpose.
(b) The council shall consist of eleven members, including the governor or designee, the
executive director of the housing development fund or his or her designee, the director of the
division of environmental protection or his or her designee, the director of the economic
development authority or his or her designee, the director of the water development authority or
his or her designee, the executive director of the state development office or his or her designee,
the director of the division of health or his or her designee, the chairman of the public service
commission or his or her designee, and four members representing the general public: Provided,
That there shall be at least one member representing the general public from each congressional
district: Provided, however, That after the expiration of the term of office of the members first
appointed as representatives of the general public, no more than one member representing the
general public may be a resident of the same county. The governor shall appoint the public
members of the council who shall serve three-year staggered terms. The commissioner of the division of highways, the executive director of the state rail authority, two members of the West
Virginia Senate, two members of the West Virginia House of Delegates, one representative of the
board of directors of the state college system and one representative of the board of trustees of
the university of West Virginia shall the chancellor of the higher education policy commission
and the chancellor of the West Virginia council for community and technical college education
serve as advisory members of the council. The governor shall appoint the legislative members
of the council: Provided further, That no more than three of the legislative members may be of
the same political party. The governor shall appoint the representatives of the governing boards
from a list of three names submitted by each governing board. The advisory members shall be
ex officio, nonvoting members of the council.
(c) The council shall annually elect one of its members governor or designee shall serve
as chairman, and the council shall annually appoint a vice-chairperson, and shall appoint a
secretary, who need not be a member of the council and who shall keep records of its
proceedings. Six members of the council shall constitute a quorum and the affirmative vote of
at least the majority of those members present shall be necessary for any action taken by vote of
the council. No A vacancy in the membership of the council impairs does not impair the rights
of a quorum by such vote to exercise all the rights and perform all the duties of the council.
(d) No A member of the council who serves by virtue of his or her office shall receive any
does not receive compensation or reimbursement of expenses for serving as a member. The
public members of the council who represent the general public shall receive reimbursement are
reimbursed for actual expenses incurred in the service of the council in a manner consistent with
guidelines of the travel management office of the department of administration.
(e) The council shall meet meets at least monthly to review projects and infrastructure
projects requesting funding assistance and otherwise to conduct its business, and shall may meet
more frequently if necessary. Notwithstanding any other provision of this article to the contrary,
the economic development authority shall not be is not subject to council review with regard to
any action taken pursuant to the authority established in article fifteen, chapter thirty-one of this
code. nor shall The governor's civil contingent fund be is not subject to council review with regard to projects or infrastructure projects funded through the governor's civil contingent fund.
(f) The water development authority shall provide office space for the council, and each
governmental agency represented on the council shall provide staff support for the council in the
manner determined appropriate by the council. from time to time
(g) The council shall invite to all its meetings each meeting one or more representatives
of the United States department of agriculture, rural economic community development, the
United States economic development agency and the United States army corps of engineers or
any successors thereto. The council shall also invite such other appropriate parties as may be is
necessary to effectuate the purposes of this article.
§31-15A-11. Reservation of funds for projects and infrastructure projects.
Eighty percent of the funds deposited in the West Virginia infrastructure fund shall be
dedicated for the purpose of providing funding for the cost of projects as defined in subsection
(n), section two of this article. Twenty percent of the funds deposited in the West Virginia
infrastructure fund shall be dedicated for the purpose of providing funding for costs of
infrastructure projects as defined in subsection (l), section two of this article. Project sponsors
of infrastructure projects shall follow the application process as established by this article:
Provided, That notwithstanding any provision of this article to the contrary, all applications for
any infrastructure project shall be submitted to the council for community and economic
development, or its successor, executive director of the West Virginia development office for
review, recommendation and approval regarding infrastructure project funding.
ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.
§31-18-4. Composition; board of directors; appointment, term, etc., of private members;
chairman and vice chairman; quorum.
(a) There is continued as a governmental instrumentality of the state of West Virginia, a
public body corporate to be known as the West Virginia housing development fund.
(b) The housing development fund is created and established to serve a public corporate
purpose and to act for the public benefit and as a governmental instrumentality of the state of
West Virginia, to act on behalf of the state and its people in improving and otherwise promoting their health, welfare and prosperity.
(c) The housing development fund shall be governed by a board of directors, consisting
of eleven members, four of whom shall be the governor, the attorney general, the commissioner
of agriculture, and the state treasurer, or their designated representatives as public directors, and
seven of whom shall be chosen from the general public residing in the state, as private directors.
No more than four of the private directors shall be from the same political party.
(d) Upon organization of the housing development fund, the governor shall appoint, by
and with the advice and consent of the Senate, the seven private directors to take office and to
exercise all powers thereof immediately, with two each appointed for terms of two years and three
years, and with three each appointed for terms of four years, respectively, as the governor shall
designate; at the expiration of said terms and for all succeeding terms, the governor shall appoint
a successor to the office of private director for a term of four years in each case.
(e) In cases of any A vacancy in the office of a private director such vacancy shall be is
filled by appointment by the governor for the remainder of the unexpired term.
(f) The governor may remove any private director whom he may appoint in case for reason
of incompetency, neglect of duty, gross immorality, or malfeasance in office, and he may declare
his office vacant and may appoint a person for such appoint a director to fill the vacancy as
provided in other cases of vacancy.
(g) The chairman and The governor or designee serves as chair. The board of directors
shall annually elect one of its public members as vice chair vice chairman, of the board of
directors shall be designated by the governor from among the directors and appoint a secretary
to keep records of its proceedings, who need not be a member of the board.
(h) Six members of the board of directors shall constitute constitutes a quorum. No A
vacancy in the membership of the board shall does not impair the right of a quorum to exercise
all the rights and perform all the duties of the board of directors.
(i) No action shall Action may not be taken by the board of directors except upon the
affirmative vote of at least six of the directors.
(j) The directors, including the chairman, vice chairman and the chair, vice chair and treasurer, of the board of directors and the secretary of the board of directors shall receive no
compensation are not compensated for their services but shall be entitled to their receive
reasonable and necessary expenses actually incurred in discharging their duties under this article
in a manner consistent with guidelines of the travel management office of the department of
administration.
§31-18-5. Management and control of housing development fund vested in board; officers;
liability.
(a) The management and control of the housing development fund shall be vested solely
in the board of directors in accordance with the provisions of this article.
(b) The chairman shall be the chief executive officer of the housing development fund,
and, in his or her absence, the vice chairman shall act as chief executive officer.
(c) The board of directors may appoint a chief administrative officer and may fix his title,
duties and compensation. The governor appoints an executive director of the housing
development fund, with the advice and consent of the Senate, who serves at the governor's will
and pleasure. The director is responsible for managing and administering the daily functions of
the housing development fund and for performing other functions necessary to the effective
operation of the housing development fund.
The executive director's compensation is fixed
annually by the board of directors.
(d) The board of directors of the housing development fund shall annually elect from its
membership a treasurer, and shall annually elect a secretary, who need not be a member of the
board, to keep a record of the proceedings of the housing development fund.
(e) The treasurer of the housing development fund shall be custodian of all funds of the
housing development fund, and shall be bonded in such amount as the other members of the
board of directors may designate.
(f) The directors and officers of the West Virginia housing development fund shall not be
liable personally, either jointly or severally, for any debt or obligation created by the West
Virginia housing development fund.;
On pages one and two, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §
5-1-28; that said code be amended by adding thereto a new article,
designated §5B-1-1, §5B-1-2, §5B-1-3, §5B-1-4, §5B-1-5, §5B-1-6 and §5B-1-7; that §5B-2-2,
§5B-2-3 and §5B-2-8 of said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §5B-2-14; that §5B-2E-3, §5B-2E-4, §5B-2E-5,
§5B-2E-6 and §5B-2E-9 of said code be amended and reenacted; that §5D-1-4 and §5D-1-5 of
said code be amended and reenacted; that said code be amended by adding thereto a new section,
designated §5D-1-24; that §5F-1-2 of said code be amended and reenacted; that §5F-2-1 and
§5F-2-2 of said code be amended and reenacted; that §7-22-3, §7-22-6, §7-22-7, §7-22-8,
§7-22-10, §7-22-11, §7-22-12, §7-22-14 and §7-22-15 of said code be amended and reenacted;
that §8-38-3, §8-38-6, §8-38-7, §8-38-8, §8-38-10, §8-38-11, §8-38-12, §8-38-14 and §8-38-15
of said code be amended and reenacted; that §12-7-4 and §12-7-5 of said code be amended and
reenacted; that §13-2C-21 of said code be amended and reenacted; that §17-24-4 of said code be
amended and reenacted; that §18-9D-1 of said code be amended and reenacted; that §18B-3D-1,
§18B-3D-2, §18B-3D-3, §18B-3D-4 and 18B-3D-5 of said code be amended and reenacted; that
§22C-1-4 of said code be amended and reenacted; that
§29-8-2 of said code be
amended and reenacted;
that §29-22-18a of said code be amended and reenacted; that
§31-15A-3 and §31-15A-11 of said code be amended and reenacted; that §31-18-4 and §31-18-5
of said code be amended and reenacted, all to read as follows:;
And,
On pages one through five, by striking out the title and substituting therefor a new title,
to read as follows:
Eng. S. B. 1002 -"A Bill to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5-1-28; to amend said code by adding thereto a new
article, designated §5B-1-1, §5B-1-2, §5B-1-3, §5B-1-4, §5B-1-5, §5B-1-6 and §5B-1-7; to
amend and reenact §5B-2-2, §5B-2-3 and §5B-2-8 of said code; to amend said code by adding
thereto a new section, designated §5B-2-14; to amend and reenact §5B-2E-3, §5B-2E-4, §5B-2E-5, §5B-2E-6 and §5B-2E-9 of said code; to amend and reenact §5D-1-4 and §5D-1-5 of
said code; to amend said code by adding thereto a new section, designated §5D-1-24; to amend
and reenact §5F-1-2 of said code; to amend and reenact §5F-2-1 and §5F-2-2 of said code; to
amend and reenact §7-22-3, §7-22-6, §7-22-7, §7-22-8, §7-22-10, §7-22-11, §7-22-12, §7-22-14
and §7-22-15 of said code; to amend and reenact §8-38-3, §8-38-6, §8-38-7, §8-38-8, §8-38-10,
§8-38-11, §8-38-12, §8-38-14 and §8-38-15 of said code; to amend and reenact §12-7-4 and
§12-7-5 of said code; to amend and reenact §13-2C-21 of said code; to amend and reenact
§17-24-4 of said code; to amend and reenact §18-9D-1 of said code; to amend and reenact
§18B-3D-1, §18B-3D-2, §18B-3D-3, §18B-3D-4 and §18B-3D-5 of said code; to amend and
reenact §22C-1-4 of said code; to amend and reenact §29-8-2 of said code; to amend and reenact
§29-22-18a of said code; to amend and reenact §31-15A-3 and §31-15A-11 of said code; to
amend and reenact §31-18-4 and §31-18-5 of said code, all relating to the reorganization of the
executive branch of state government; establishing prerequisites for bond issuance and refunding;
creating a new department of commerce in the executive branch of state government; creating the
office of secretary as the chief executive officer of the department of commerce; providing for
the transfer to and incorporation into the department of commerce of the bureau of commerce and
numerous state divisions, agencies and boards and allied, advisory, affiliated and related entities
and funds; describing the powers, duties, and authority of the secretary, administrators, division
heads and employees of the department of commerce; providing for annual reports by the
secretary of the department of commerce to the governor; providing for the delegation of powers
and duties for the secretary of the department of commerce; extending authority of executive
agencies to transfer funds; providing for interdepartmental communication of certain confidential
information in certain cases; providing for an appeal in instances relating to the interference of
government by the department of commerce; establishing the economic development authority
as an independent agency within the executive branch; providing for the appointment and duties
of the executive director of the development office; transferring authority from the council for
community and economic development to the development office in certain cases; transferring
rulemaking authority from the council for community and economic development to the development office or its executive director; transferring the certified development community
program to the economic development office; revising the powers and duties of the development
office; transferring authority to approve tourism development projects from the council for
community and economic development to the executive director of the development office;
transferring authority to approve county and municipal economic opportunity development
district projects from the council for community and economic development to the development
office; authorizing the development office to determine economic viability of waste tire
processing facilities; transferring authority to approve disposal of equipment purchased with
workforce development grant funds from council for community and economic development to
development office; transferring authority to administer the state fund for community and
technical college and workforce development from council for community and economic
development to development office; authorizing executive director of development office to
approve expenditure of grant funds; authorizing executive director of development office to
appoint advisory committee to review applications for workforce development grants; transferring
authority to administer economic development project bridge loan fund from the council for
community and economic development to the economic development authority; expiring terms
of members of public energy authority board; reconstituting composition of public energy
authority board; providing for governor to chair the public energy authority board; restoring
authority of public energy authority to initiate, acquire, construct, finance or issue bonds for
electric power projects and transmission facilities; restoring authority of public energy authority
to exercise powers of eminent domain; providing for sunset review of public energy authority;
modifying membership of the jobs investment trust board; providing for the composition and
appointment of the jobs investment trust fund board; providing for governor to chair the jobs
investment trust board; authorizing the governor to appoint an executive director of the jobs
investment trust board; establishing the water development authority as an independent agency
within the executive branch; modifying composition of the water development authority;
providing for governor to chair the water development authority; authorizing the governor to
appoint an executive director of the water development authority; modifying composition of school building authority; decreasing terms of certain members of school building authority;
providing for governor to chair the school building authority; authorizing the governor to appoint
an executive director of the school building authority; authorizing governor to remove members
of school building authority for cause; providing for governor to chair the infrastructure and jobs
development council; providing applications for infrastructure projects to be submitted to the
executive director of the development office; providing for governor to chair the housing
development fund board; authorizing the governor to appoint an executive director of the housing
development fund board; clarifying that the Blennerhassett Island historical state park is within
the division of natural resources; clarifying division of tourism in West Virginia development
office; and making technical corrections.
On motion of Delegate Staton, the House of Delegates concurred in the Senate
amendments to the House amendments.
The bill, as amended by the House, and as further amended by the Senate, was then put
upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 17), and there
were--yeas 92, nays 1, absent and not voting 7, with the nays and absent and not voting being as
follows:
Nays: Frich.
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue and Romine.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1002) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 18), and there were--yeas 93,
nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1002) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment,
with amendment, and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 1003, Relating generally to ethical standards of governmental
officials and employees.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by
the Clerk:
On page one of the House amendment, by striking out everything after the article heading
and inserting in lieu thereof the following:
§6B-1-3. Definitions.
As used in this chapter, unless the context in which used clearly requires otherwise:
(a) "Review Board" means the Probable Cause Review Board created by section two-a,
article two of this chapter.
(b) "Compensation" means money, thing of value or financial benefit. The term
"compensation" does not include reimbursement for actual reasonable and necessary expenses
incurred in the performance of one's official duties.
(b) (c) "Employee" means any person in the service of another under any contract of hire,
whether express or implied, oral or written, where the employer or an agent of the employer or
a public official has the right or power to control and direct such person in the material details of
how work is to be performed and who is not responsible for the making of policy nor for
recommending official action.
(c) (d) "Ethics Commission", "Commission on ethics" or "Commission" means the West
Virginia Ethics Commission.
(d) (e) "Immediate family", with respect to an individual, means a spouse residing in the
individual's household and with whom the individual is living as husband and wife, and any
dependent child or children, dependent grandchild or grandchildren, and dependent parent or parents.
(e) (f) "Ministerial functions" means actions or functions performed by an individual
under a given state of facts in a prescribed manner in accordance with a mandate of legal
authority, without regard to, or without the exercise of, such the individual's own judgment as
to the propriety of the action being taken.
(f) (g) "Person" means an individual, corporation, business entity, labor union,
association, firm, partnership, limited partnership, committee, club or other organization or group
of persons, irrespective of the denomination given such organization or group.
(g) (h) "Political contribution" means and has the same definition as is given that term
under the provisions of article eight, chapter three of this code.
(h) (i) "Public employee" means any full-time or part-time employee of any state, county
or municipal governmental body or any political subdivision thereof, including county school
boards.
(i) (j) "Public official" means any person who is elected or appointed to any state, county
or municipal office or position and who is responsible for the making of policy or takes official
action which is either ministerial or nonministerial, or both, with respect to: (i) (1) Contracting
for, or procurement of, goods or services; (ii) (2) administering or monitoring grants or subsidies;
(iii) (3) planning or zoning; (iv) (4) inspecting, licensing, regulating or auditing any person; or
(v) (5) any other activity where the official action has an economic impact of greater than a de
minimis nature on the interest or interests of any person.
(j) (k) "Respondent" means a person who is the subject of an investigation by the
Commission or against whom a complaint has been filed with the Commission.
(k) (l) "Thing of value", "other thing of value" or "anything of value" means and includes:
(i) (1) Money, bank bills or notes, United States treasury notes, and other bills, bonds or notes
issued by lawful authority and intended to pass and circulate as money; (ii) (2) goods and chattels;
(iii) (3) promissory notes, bills of exchange, orders, drafts, warrants, checks, bonds given for the
payment of money or the forbearance of money due or owing; (iv) (4) receipts given for the
payment of money or other property; (v) (5) any right or chose in action; (vi) (6) chattels real or personal or things which savor of realty and are, at the time taken, a part of a freehold, whether
they are of the substance or produce thereof or affixed thereto, although there may be no interval
between the severing and the taking away thereof; (vii) (7) any interest in realty, including, but
not limited to, fee simple estates, life estates, estates for a term or period of time, joint tenancies,
cotenancies, tenancies in common, partial interests, present or future interests, contingent or
vested interests, beneficial interests, leasehold interests or any other interest or interests in realty
of whatsoever nature; (viii) (8) any promise of employment, present or future; (ix) (9) donation
or gift; (x) (10) rendering of services or the payment thereof; (xi) (11) any advance or pledge; (xii)
(12) a promise of present or future interest in any business or contract or other agreement; or (xiii)
(13) every other thing or item, whether tangible or intangible, having economic worth. "Thing of
value", "other thing of value" or "anything of value" shall not include anything which is de
minimis in nature nor a lawful political contribution reported as required by law.
§6B-1-6. Special revenue account.
All moneys collected pursuant to this chapter, except fines imposed pursuant to subsection
(r)(1)(D), section four, article two of this chapter, shall be deposited in a special account in the
state treasury to be known as the West Virginia Governmental Ethics Commission Fund."
Expenditures from the fund shall be for the purposes set forth in this chapter and are not
authorized from collections but are to be made only in accordance with appropriation by the
Legislature and in accordance with the provisions of article three, chapter twelve of this code and
upon the fulfillment of the provisions set forth in article two, chapter five-a of this code:
Provided, That for the fiscal year ending the thirtieth day of June, two thousand five, expenditures
are authorized from collections rather than pursuant to an appropriation by the Legislature.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE
PUBLIC AGENCIES; CODE OF CONDUCT FOR
ADMINISTRATIVE LAW JUDGES.
§6B-2-1. West Virginia Ethics Commission created; members; appointment, term of office and oath; compensation and reimbursement for expenses; meetings and
quorum.
(a) There is hereby created the West Virginia Ethics Commission,
consisting of twelve members, no more than seven of whom shall be members of the same
political party. The members of the Commission shall be appointed by the Governor with the
advice and consent of the Senate. Within thirty days of the effective date of this section, the
Governor shall make the initial appointments to the Commission. No person may be appointed
to the Commission or continue to serve as a member of the Commission who holds elected or
appointed office under the government of the United States, the state of West Virginia or any of
its political subdivisions, or who is a candidate for any of or who is a candidate for any of such
those offices, who is employed as a registered lobbyist, or who is otherwise subject to the
provisions of this chapter other than by reason of his or her appointment to or service on the
Commission. A member may contribute to a political campaign, but no member shall hold any
political party office or participate in a campaign relating to a referendum or other ballot issue.
(b) At least two members of the Commission shall have served as a
member of the West Virginia Legislature; at least two members of the Commission shall have
been employed in a full-time elected or appointed office in state government; at least one member
shall have served as an elected official in a county or municipal government or on a county school
board; at least one member shall have been employed full time as a county or municipal officer
or employee; and at least two members shall have served part time as a member or director of a
state, county or municipal board, commission or public service district and at least four members
shall be selected from the public at large. No more than four members of the Commission shall
reside in the same congressional district.
(c) Of the initial appointments made to the Commission, two shall be for
a term ending one year after the effective date of this section, two for a term ending two years
after the effective date of this section, two for a term ending three years after the effective date
of this section, three for a term ending four years after the effective date of this section and three
shall be for terms ending five years after the effective date of this section. Thereafter, terms of office shall be for five years, each term ending on the same day of the same month of the year as
did the term which it succeeds. Each member shall hold office from the date of his or her
appointment until the end of the term for which he or she was appointed or until his or her
successor qualifies for office. When a vacancy occurs as a result of death, resignation or removal
in the membership of this Commission, it shall be filled by appointment within thirty days of the
vacancy for the unexpired portion of the term in the same manner as original appointments. No
member shall serve more than two consecutive full or partial terms and no person may be
reappointed to the Commission until at least two years have elapsed after the completion of a
second successive term.
(d) Each member of the Commission shall take and subscribe to the oath
or affirmation required pursuant to section 5, article IV of the constitution of West Virginia. A
member may be removed by the Governor for substantial neglect of duty, gross misconduct in
office or violation of this chapter, after written notice and opportunity for reply.
(e) The Commission shall meet within thirty days of the initial
appointments to the Commission at a time and place to be determined by the Governor, who shall
designate a member to preside at that meeting until a chairman is elected. At its first meeting,
the Commission shall elect a chairman and such other officers as are necessary. The Commission
shall within ninety days after its first meeting adopt rules for its procedures.
(f) Seven members of the Commission shall constitute a quorum, except
that when the Commission is sitting as a hearing board pursuant to section four of this article,
then five members shall constitute a quorum. Except as may be otherwise provided in this article,
a majority of the total membership shall be necessary to act at all times.
(g) Members of the Commission shall receive the same compensation and
expense reimbursement as is paid to members of the Legislature for their interim duties as
recommended by the Citizens Legislative Compensation Commission and authorized by law for
each day or portion thereof engaged in the discharge of official duties: Provided, That to be
eligible for compensation and expense reimbursement, the member must be in personal
attendance at the meeting in which the duties are performed.
(h) The Commission shall appoint an executive director to assist the
Commission in carrying out its functions in accordance with Commission rules and regulations
and with applicable law. Said The executive director shall be paid such a salary as may be fixed
by the Commission or as otherwise provided by law. The Commission shall appoint and
discharge counsel and employees and shall fix the compensation of employees and prescribe their
duties. Counsel to the Commission shall advise the Commission on all legal matters and on the
instruction of the Commission may commence such appropriate civil actions as may be
appropriate: Provided, That no counsel shall both advise the Commission and act in a
representative capacity in any proceeding.
(i) The Commission may delegate authority to the chairman or executive
director to act in the name of the Commission between meetings of the Commission, except that
the Commission shall not delegate the power to hold hearings and determine violations to the
chairman or executive director.
(j) The chairman shall have the authority to designate subcommittees of
three persons, no more than two of whom may be members of the same political party. Said
subcommittees shall be investigative panels which shall have the powers and duties set forth
hereinafter in this article.
(k) (j) The principal office of the Commission shall be in the seat of
government but it or its designated subcommittees may meet and exercise its power at any other
place in the state. Meetings of the Commission shall be public unless: such meetings or hearings
(1) They are required to be private in conformity with by the provisions of this chapter relating
to confidentiality; except that the Commission shall exclude the public from attendance at or (2)
they involve discussions of Commission personnel, planned or ongoing litigation and planned or
ongoing investigations.
(l) (l) Meetings of the Commission shall be upon the call of the chairman
chair and shall be conducted by the personal attendance of the Commission members and no
meeting shall may be conducted by telephonic or other electronic conferencing: nor shall any
member be allowed to vote by proxy Provided, That telephone or other electronic conferencing and voting may are not be held for the purpose of approving or rejecting any proposed advisory
opinions prepared by the Commission, or for voting on issues involving the administrative
functions of the Commission permitted when the Commission is acting as a hearing board under
section four of this article or when an investigative panel meets to receive an oral response as
authorized under subsection (d), section four of this article. Meetings Members shall be given
notice of meetings held by telephone or other electronic conferencing shall require notice to
members in the same manner as meetings to be personally attended at which the members are
required to attend in person. Telephone or other electronic conferences shall be electronically
recorded and the recordings shall be made a permanent part of the Commission records. Members
shall not be compensated for meetings other than those personally attended retained by the
Commission in accordance with its record retention policy.
§6B-2-2. Same -- General powers and duties.
(a) The Commission shall promulgate propose rules and regulations for promulgation in
accordance with the provisions of chapter twenty-nine-a of this Code, to carry out the purposes
of this article within six months of the effective date of this section. Such rules and regulations
shall be legislative rules subject to legislative rule-making review and subject to the provisions
of the administrative procedures act.
(b) The Commission may initiate or receive complaints and make investigations, as
provided in section four of this article, and upon complaint by an individual of an alleged
violation of this article by a public official or public employee, refer the complaint to the Review
Board as provided in section two-a of this article. Any person charged with a violation of this
chapter is entitled to the administrative hearing process contained in section four of this article.
(c) The Commission may subpoena witnesses, compel their attendance and testimony,
administer oaths and affirmations, take evidence and require by subpoena the production of
books, papers, records or other evidence needed for the performance of the Commission's duties
or exercise of its powers, including its duties and powers of investigation.
(c)(d) The Commission shall, in addition to its other duties:
(1) Prescribe forms for reports, statements, notices, and other documents required by law;
(2) Prepare and publish manuals and guides explaining the duties of individuals covered
by this law; and giving instructions and public information materials to facilitate compliance with,
and enforcement of, this act; and
(3) Provide assistance to agencies, officials and employees in administering the provisions
of this act.
(d) (e) The Commission may:
(1) Prepare reports and studies to advance the purpose of the law;
(2) Contract for any services which cannot satisfactorily be performed by its employees;
(3) Request Require the Attorney General to provide legal advice without charge to the
Commission, and the Attorney General shall comply with the request;
(4) Employ additional legal counsel; and
(5) Request appropriate agencies of state to provide such any professional assistance as
it the Commission may require in the discharge of its duties: Provided, That the Commission
shall reimburse any agency providing such assistance other than the Attorney General shall be
reimbursed by the West Virginia Ethics Commission the cost of such providing assistance.; and
(6) Share otherwise confidential documents, materials or information with appropriate
agencies of state government, provided that the recipient agrees to maintain the confidentiality
and privileged status of the document, material or information.
§6B-2-2a. Probable Cause Review Board.
(a) There is hereby established a Probable Cause Review Board that shall conduct
hearings to determine whether there is probable cause to believe that a violation of the West
Virginia Governmental Ethics Act has occurred, and if so, to refer that investigation to the Ethics
Commission. The Review Board is an autonomous board, not under the direction or control of
the Ethics Commission. The Review Board will review complaints received or initiated by the
Ethics Commission to make a threshold determination of whether probable cause exists to believe
that a violation of the West Virginia Governmental Ethics Act has occurred.
(b) The Governor, by and with the advice and consent of the Senate, shall appoint three
persons as members of the Review Board, each of whom shall be a resident and citizen of the state. Each member of the Review Board shall hold office until his successor has been appointed
and qualified. At least one member of the Board must be an attorney licensed by the state of West
Virginia, and no more than two members can belong to the same political party. The members
of the Review Board shall be appointed for overlapping terms of two years, except that the
original appointments shall be for terms of one, two, and three years, respectively. Any member
whose term expires may be reappointed by the Governor. In the event a Review Board member
is unable to complete his or her term, a Governor shall appoint a person with similar qualification
to complete that term. Each Review Board member shall receive the same compensation and
expense reimbursement as provided to Ethics Commission members pursuant to section one of
this article. These and all other costs incurred by the Review Board shall be paid from the budget
of the Ethics Commission.
(d) No person may be appointed to the Review Board or continue to serve as a member
of the Review Board who holds elected or appointed office under the government of the United
States, the state of West Virginia or any of its political subdivisions, or who is a candidate for any
of such offices, or who is a registered lobbyist, or who is otherwise subject to the provisions of
this chapter other than by reason of his or her appointment to or service on the Review Board.
A Review Board member may contribute to a political campaign, but no member shall hold any
political party office or participate in a campaign relating to a referendum or other ballot issue.
(e) The Ethics Commission shall propose, for approval by the Review Board, any
procedural and interpretative rules governing the operation of the Review Board. The
Commission shall propose these rules pursuant to article three, chapter twenty-nine-a of the code.
(f) The Ethics Commission shall provide staffing and a location for the Review Board to
conduct hearings. The Ethics Commission is authorized to employ and assign the necessary
professional and clerical staff to assist the Review Board in the performance of its duties, and
commission staff shall, as the Commission deems appropriate, also serve as staff to the Review
Board. All investigations and proceedings of the Review Board are deemed confidential as
provided in section four of this article, and members of the Review Board are bound to the same
confidentiality requirements applicable to the Ethics Commission pursuant to this article.
(g) The Review Board may subpoena witnesses, compel their attendance and testimony,
administer oaths and affirmations, take evidence and require by subpoena the production of
books, papers, records or other evidence needed for the performance of the Review Board's
duties.
(h) Upon decision by the Review Board that probable cause exists to believe that a
violation of this chapter has occurred, Commission staff shall send notice to the Commission
members of the Review Board's finding. After an ethics complaint has been submitted to the
Review Board in accordance with section four of this article, the Commission may take no further
action until it receives the Review Board's probable cause finding.
§6B-2-3a. Complaints.
(a) The Commission may commence an investigation, pursuant to section four of this
article, on the filing of a complaint duly verified by oath or affirmation, by any person.
(b) The Commission may order the executive director to prepare a complaint, upon a
majority affirmative vote of its members, if it receives or discovers credible information which,
if true, would merit an inquiry into whether a violation of this article has occurred.
(c) (1) No complaint may be accepted or initiated by the Commission against a public
official or public employee during the sixty days before a primary or general election at which the
public official or public employees is a candidate for elective office.
(2) The Commission shall stay any proceedings with regard to an ethics complaint filed
against a public official or public employee candidate more than sixty days prior to the election:
Provided, Where there has not yet been a probable cause determination with regard to the
allegations in the complaint, the public official or public employee candidate may waive the
postponement in writing, in which case the Commission and the Review Board shall process the
complaint and provide the candidate with a probable cause determination at least thirty days prior
to the election.
(3) For purposes of this subsection, any provisions of this chapter setting time periods for
initiating a complaint or for performing any other action are considered tolled until after the
election at which the public official or public employee candidate stands for elective office.
§6B-2-4. Processing complaints; dismissals; hearings; disposition; judicial review.
(a) Upon the filing by any person with the Commission of a complaint which is duly
verified by oath or affirmation, the executive director of the Commission or his or her designee
shall, within three working days, acknowledge the receipt of the complaint by first class mail,
unless the complaint was initiated by the Commission or the complainant or his or her
representative personally filed the complaint with the Commission and was given a receipt or
other acknowledgment evidencing the filing of the complaint. No political party or officer,
employee or agent of a political party acting in his or her official capacity may file a complaint
for a violation of this chapter with the Commission. Nothing in this section prohibits a private
citizen, acting in that capacity, from filing a verified complaint with the Commission under this
section. Within fourteen days after the receipt of a complaint, the executive director an shall refer
the complaint to the investigative panel Review Board created pursuant to section two-a of this
article. shall be appointed to investigate the substance of the allegations in the complaint and to
determine whether there is probable cause to believe that a violation of this chapter has occurred.
The Commission shall establish by legislative rule promulgated in accordance with chapter
twenty-nine-a of this code a rotation system for the selection of Commission members to sit on
investigative panels whereby the caseload of Commission investigations is distributed among
Commission members as evenly and randomly as possible.
(b) In the case of a filed complaint, Upon the referral of a complaint by the executive
director pursuant to subsection (a) of this section, the first inquiry of the investigative panel
Review Board shall determine be a question as to whether or not the allegations of the complaint,
if taken as true, would constitute a violation of law upon which the Commission could properly
act under the provisions of this chapter. If the complaint is determined by a majority vote of the
investigative panel Review Board to be insufficient in this regard, the investigative panel Review
Board shall dismiss the complaint.
(c) After the Commission receives a complaint found by the investigative panel Upon a
finding by the Review Board that the complaint is to be sufficient, the executive director shall
give notice of a pending investigation by the investigative panel to the complainant, if any, and to the respondent. The notice of investigation shall be mailed to the parties, and, in the case of
the respondent, shall be mailed as certified mail, return receipt requested, marked "Addressee
only, personal and confidential." The notice shall describe the conduct of the respondent which
is the basis for an alleged violation of to violate the law, and if a complaint has been filed a copy
of the complaint shall be appended to the notice mailed to the respondent. Each notice of
investigation shall inform the respondent that the purpose of the investigation is to determine
whether probable cause exists to believe that a violation of law has occurred which may subject
the respondent to administrative sanctions by the Commission, criminal prosecution by the state,
or civil liability. The notice shall further inform the respondent that he or she has a right to
appear before the investigative panel Review Board and that he or she may respond in writing to
the Commission within thirty days after the receipt of the notice, but that no fact or allegation
shall be taken as admitted by a failure or refusal to timely respond.
(d) Within the forty-five day period following the mailing of a notice of investigation, the
investigative panel Review Board shall proceed to consider: (1) The allegations raised in the
complaint; (2) any timely received written response of the respondent; and (3) any other
competent evidence gathered by or submitted to the Commission which has a proper bearing on
the issue of probable cause. A respondent shall be afforded the opportunity to may appear before
the investigative panel Review Board and make an oral response to the complaint. The
Commission shall, in promulgating legislative promulgate rules pursuant to the provisions of
subsection (a), section two of this article, prescribe prescribing the manner in which a respondent
may present his or her oral response to the investigative panel. The Commission may request ask
a respondent to disclose specific amounts received from a source, and request other detailed
information not otherwise required to be set forth in a statement or report filed under the
provisions of this chapter, if the information sought is deemed considered to be probative as to
the issues raised by a complaint or an investigation initiated by the Commission. Any
information thus received shall be confidential except as provided by subsection (f) (e) of this
section. If the person so requested asked to provide information fails or refuses to furnish the
information to the Commission, the Commission may exercise its subpoena power as provided for elsewhere in this chapter, and any subpoena issued thereunder by the Commission shall have
the same force and effect as a subpoena issued by a circuit court of this state. and enforcement
Enforcement of any such subpoena may be had upon application to a circuit court of the county
in which the investigative panel Review Board is conducting an investigation, through the
issuance of a rule or an attachment against the respondent as in cases of contempt.
(e)(1) All No person who has filed a complaint, provided information to the Commission
or has knowledge that the Commission is undertaking an investigation and no Commission
member or employee or former member or employee shall disclose:
(A) his or her knowledge that a complaint has been filed or an investigation has been
undertaken;
(B) any information he or she obtained as a result of having interacted with the
Commission in connection with a particular investigation;
(C) the fact that he or she has filed a complaint, provided information to or testified before
the Commission or otherwise participated in the Commission investigation; or
(D) the contents of any investigations, complaints, reports, records, proceedings, and other
information received by the Commission and related to complaints made to the Commission or
investigations conducted by the Commission pursuant to this section, including the identity of the
complainant or respondent, shall be confidential and shall not be knowingly and improperly
disclosed by any member or former member of the commission or its staff, except as follows:
(A) Upon Once there has been a finding that probable cause exists to believe that a
respondent has violated the provisions of this chapter and the respondent has been served by the
Commission with a copy of the Review Board's order and the statement of charges prepared
pursuant to the provisions of subsection (g) of this section, the complaint and all reports, records,
non-privileged and nondeliberative material introduced at any probable cause hearing held
pursuant to the complaint are thereafter not cease to be confidential: Provided, That
confidentiality of such information shall remain in full force and effect until the respondent has
been served by the Commission with a copy of the investigative panel's order finding probable
cause and with the statement of charges prepared pursuant to the provisions of subsection (g) of this section.
(B) After a finding of probable cause as aforesaid, any subsequent hearing held in the
matter for the purpose of receiving evidence or the arguments of the parties or their
representatives shall be open to the public and all reports, records and nondeliberative materials
introduced into evidence at such subsequent the hearing, as well as the Commission's orders, are
not confidential.
(C) The Commission may release any information relating to an investigation at any time
if the release has been agreed to in writing by the respondent.
(D) The complaint as well as and the identity of the complainant shall be disclosed to a
person named as respondent in any such complaint filed with the Commission immediately upon
such the respondent's request.
(E) Where the Commission is otherwise required by the provisions of this chapter to
disclose such information or to proceed in such a manner that disclosure is necessary and required
to fulfill such those requirements.
(2) If, in a specific case, the Commission finds that there is a reasonable likelihood that
the dissemination of information or opinion in connection with a pending or imminent proceeding
will interfere with a fair hearing or otherwise prejudice the due administration of justice, the
Commission shall order that all or a portion of the information communicated to the Commission
to cause an investigation and all allegations of ethical misconduct or criminal acts contained in
a complaint shall be confidential, and the person providing such the information or filing a
complaint shall be bound to confidentiality until further order of the Commission.
(3) If a complainant knowingly discloses confidential information in violation of this
subsection, the Commission may impose the sanctions specified in subsection (r) of this section
and in addition, or in lieu thereof, dismiss the complaint.
(f) If a majority of the members of the investigative panel Review Board fail to find
probable cause, the proceedings shall be dismissed by the Commission in an order signed by the
majority members of the panel Review Board and copies. Copies of the order of dismissal shall
be sent to the complainant and served upon the respondent forthwith. If the investigative panel Review Board decides by a majority unanimous vote that there is probable cause to believe that
a violation under this chapter has occurred, the majority members of the investigative panel
Review Board shall sign an order directing the Commission staff to prepare a statement of
charges, to assign the matter for hearing to the Commission or a hearing examiner as the
Commission may subsequently direct. The Commission shall then schedule a hearing, to be held
within ninety days after the date of the order, to determine the truth or falsity of the charges, such
hearing to be held within ninety days after the date of the order. The Commission's review of the
evidence presented shall be de novo. For the purpose of this section, service of process upon the
respondent is obtained at the time the respondent or the respondent's agent physically receives the
process, regardless of whether the service of process is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing, the Commission shall serve the
respondent shall be served by certified mail, return receipt requested, with the statement of
charges and a notice of hearing setting forth the date, time and place for the hearing. The
scheduled hearing may be continued only upon a showing of good cause by the respondent or
under such other circumstances as the Commission shall, by legislative rule, direct directs.
(h) The Commission members who have not served as members of an investigative panel
in a particular case may sit as a hearing board to adjudicate the case or may permit an assigned
hearing examiner employed by the Commission to preside at the taking of evidence. The
Commission shall, by legislative rule, establish the general qualifications for hearing examiners.
Such The legislative rule shall also contain provisions which seek to ensure that the functions of
a hearing examiner will be conducted in an impartial manner, and shall describe the
circumstances and procedures for disqualification of hearing examiners.
(i) A member of the Commission or a hearing examiner presiding at a hearing may:
(1) Administer oaths and affirmations, compel the attendance of witnesses and the
production of documents, examine witnesses and parties, and otherwise take testimony and
establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends of justice may will be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of issues by consent of the
parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the Ethics Commission consistent with the provisions
of this chapter.
(j) With respect to allegations of a violation under this chapter, the complainant has the
burden of proof. The West Virginia Rules of Evidence as used to govern governing proceedings
in the courts of this state shall be given like effect in hearings held before the Commission or a
hearing examiner. The Commission shall, by legislative rule, regulate the conduct of hearings
so as to provide full procedural due process to a respondent. Hearings before a hearing examiner
shall be recorded electronically. When requested by either of the parties, the presiding officer
shall make order a transcript, verified by oath or affirmation, of each hearing held and so
recorded. In the discretion of the Commission, a record of the proceedings may be made by a
certified court reporter. Unless otherwise ordered by the Commission, the cost of preparing a
transcript shall be paid by the party requesting the transcript. Upon a showing of indigency, the
Commission may provide a transcript without charge. Within fifteen days following the hearing,
either party may submit to the hearing examiner that party's proposed findings of fact. The
hearing examiner shall thereafter prepare his or her own proposed findings of fact and make
copies of the findings available to the parties. The hearing examiner shall then submit the entire
record to the Commission for final decision.
(k) The recording of the hearing or the transcript of testimony, as the case may be, and the
exhibits, together with all papers and requests filed in the proceeding, and the proposed findings
of fact of the hearing examiner and the parties, constitute the exclusive record for decision by the
Commission members who have not served as members of the investigative panel, unless by
leave of the Commission a party is permitted to submit additional documentary evidence or take and file depositions or otherwise exercise discovery.
(l) The Commission shall set a time and place for the hearing of arguments by the
complainant and respondent, or their respective representatives, and shall notify the parties
thereof, and briefs. Briefs may be filed by the parties in accordance with procedural rules
promulgated by the Commission. The Commission shall issue a final decision of the
Commission shall be made by the Commission members who have not served as members of the
investigative panel in writing within forty-five days of the receipt of the entire record of a hearing
held before a hearing examiner or, in the case of an evidentiary hearing held by the Commission,
acting as a hearing board in lieu of a hearing examiner, within twenty-one days following the
close of the evidence.
(m) A decision on the truth or falsity of the charges against the respondent and a decision
to impose sanctions must be approved by at least six seven members of the Commission who
have not served as members of the investigative panel.
(n) Members of the Commission shall recuse themselves from a particular case upon their
own motion with the approval of the Commission or for good cause shown upon motion of a
party. The remaining members of the Commission shall, by majority vote, select a temporary
member of the Commission to replace a recused member: Provided, That the temporary member
selected to replace a recused member shall be a person of the same status or category, provided
by subsection (b), section one of this article, as the recused member.
(o) Except for statements made in the course of official duties to explain Commission
procedures, no member or employee or former member or employee of the Commission may
make any public or nonpublic comment about any proceeding previously or currently before the
Commission. Any member or employee or former member or employee of the Commission who
violates this subsection is subject to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current member or employee of the
Commission is grounds for immediate removal from office or termination of employment.
(o) (p) A complainant may be assisted by a member of the Commission staff assigned by
the Commission after a determination of probable cause.
(p) (q) No member employee of the Commission staff assigned to prosecute a complaint
may participate in the Commission deliberations or communicate with Commission members or
the public concerning the merits of a complaint. after being assigned to prosecute a complaint
(q) (r)(1) If the Commission finds by evidence beyond a reasonable doubt that the facts
alleged in the complaint are true and constitute a material violation of this article, it may impose
one or more of the following sanctions:
(1) (A) Public reprimand;
(2) (B) Cease and desist orders;
(3) (C) Orders of restitution for money, things of value, or services taken or received in
violation of this chapter; or
(4) (D) Fines not to exceed one five thousand dollars per violation; or
(E) Reimbursement to the Commission for the actual costs of investigating and
prosecuting a violation. Any reimbursement ordered by the Commission for its costs under this
paragraph shall be collected by the Commission and deposited into the special revenue account
created pursuant to section six, article one of this chapter.
(2) In addition to imposing such the above-specified sanctions, the Commission may
recommend to the appropriate governmental body that a respondent be terminated from
employment or removed from office.
(3) The Commission may institute civil proceedings in the circuit court of the county
wherein in which a violation occurred for the enforcement of sanctions.
(t) (s) At any stage of the proceedings under this section, the Commission may enter into
a conciliation agreement with a respondent if such the agreement is deemed by a majority of the
members of the Commission to be in the best interest of the state and the respondent. Any
conciliation agreement must be disclosed to the public: Provided, That negotiations leading to
a conciliation agreement, as well as information obtained by the Commission during such the
negotiations, shall remain confidential except as may be otherwise set forth in the agreement.
(s) (t) Decisions of the Commission involving the issuance of sanctions may be appealed
to the Circuit Court of Kanawha County, West Virginia, or to the circuit court of the county where the violation is alleged to have occurred, only by the respondent, and only upon the
grounds set forth in section four, article five, chapter twenty-nine-a of this code.
(t) (u)(1) In the event the Commission finds in favor of the person complained against,
the Commission shall order reimbursement of all actual costs incurred, including, but not limited
to, attorney fees to be paid to the person complained against by the complainant, if the
Commission finds that the complaint was brought or made in bad faith. In addition, the aggrieved
party shall have a cause of action and be entitled to compensatory damages, punitive damages,
costs and attorney fees for a complaint made or brought in bad faith. Any person who in good
faith files a verified complaint or any person, official, or agency who gives credible information
resulting in a formal complaint filed by Commission staff is immune from any civil liability that
otherwise might result by reason of such actions.
(2) If the Commission determines, by clear and convincing evidence, that a person filed
a complaint or provided information which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the information provided were not true;
filed an unsubstantiated complaint or request for an investigation in reckless disregard of the truth
or falsity of the statements contained therein; or filed one or more unsubstantiated complaints
which constituted abuse of process, the Commission shall:
(A) Order the complainant or informant to reimburse the respondent for his or her
reasonable costs;
(B) Order the complainant or informant to reimburse the respondent for his or her
reasonable attorney fees; and
(C) Order the complainant or informant to reimburse the Commission for the actual costs
of its investigation.
In addition, the Commission may decline to process any further complaints brought by the
complainant, the initiator of the investigation or the informant.
(3) The sanctions authorized in this subsection are not exclusive and do not preclude any
other remedies or rights of action the respondent may have against the complainant or informant
under the law.
(u) (v)(1) If at any stage in the proceedings under this section, it appears to an
investigative panel a Review Board, a hearing examiner or the Commission that there is credible
information or evidence that the respondent may have committed a criminal violation, may have
been committed by a respondent, such situation the matter shall be brought before referred to the
full Commission for its consideration. If, by a vote of two thirds of the members of the full
Commission, it is determined that probable cause exists to believe a criminal violation has
occurred, it may recommend the Commission shall refer the matter to the appropriate county
prosecuting attorney having jurisdiction over the case that for a criminal investigation be
commenced and possible prosecution. Deliberations of the Commission with regard to a
recommendation referring a matter for criminal investigation by a prosecuting attorney shall be
private and confidential. Notwithstanding any other provision of this article, once a referral for
criminal investigation is made under the provisions of this subsection, the ethics proceedings shall
be held in abeyance until action on the referred matter is concluded. If the referral of the matter
to the prosecuting attorney results in a criminal conviction of the respondent, the Commission
may resume its investigation or prosecution of the ethics violation, but may not impose a fine as
a sanction if a violation is found to have occurred.
(2) If fewer than two thirds of the full Commission determines determine that a criminal
violation has not occurred, the Commission shall remand the matter to the investigative panel,
Review Board, the hearing examiner or the Commission itself as a hearing board, as the case may
be, for further proceedings under this article.
(v) (x) The provisions of this section shall apply to violations of this chapter occurring
after the thirtieth day of September, one thousand nine hundred eighty-nine, and within one year
before the filing of a complaint under subsection (a) of this section: or the appointment of an
investigative panel by the Commission under subsection (b) of this section. Provided, That the
applicable statute of limitations for violations which occur on or after the first day of July, two
thousand five, is two years after the date on which the alleged violation occurred.
§6B-2-5. Ethical standards for elected and appointed officials and public employees.
(a) Persons subject to section. -- The provisions of this section apply to all elected and appointed public officials and public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies, departments and commissions and
in any other regional or local governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public official or public employee may
not knowingly and intentionally use his or her office or the prestige of his or her office for his or
her own private gain or that of another person. Incidental use of equipment or resources available
to a public official or public employee by virtue of his or her position for personal or business
purposes resulting in de minimis private gain does not constitute use of public office for private
gain under this subsection. The performance of usual and customary duties associated with the
office or position or the advancement of public policy goals or constituent services, without
compensation, does not constitute the use of prestige of office for private gain.
(2) The Legislature, in enacting this subsection (b), relating to the use of public office or
public employment for private gain, recognizes that there may be certain public officials or public
employees who bring to their respective offices or employment their own unique personal prestige
which is based upon their intelligence, education, experience, skills and abilities, or other
personal gifts or traits. In many cases, these persons bring a personal prestige to their office or
employment which inures to the benefit of the state and its citizens. Such Those persons may,
in fact, be sought by the state to serve in their office or employment because, through their
unusual gifts or traits, they bring stature and recognition to their office or employment and to the
state itself. While the office or employment held or to be held by such those persons may have
its own inherent prestige, it would be unfair to such those individuals and against the best
interests of the citizens of this state to deny such those persons the right to hold public office or
to be publicly employed on the grounds that they would, in addition to the emoluments of their
office or employment, be in a position to benefit financially from the personal prestige which
otherwise inheres to them. Accordingly, the Commission is directed, by legislative rule, to
establish categories of such public officials and public employees, identifying them generally by
the office or employment held, and offering persons who fit within such those categories the
opportunity to apply for an exemption from the application of the provisions of this subsection. Such exemptions Exemptions may be granted by the Commission, on a case-by-case basis, when
it is shown that: (A) The public office held or the public employment engaged in is not such that
it would ordinarily be available or offered to a substantial number of the citizens of this state; (B)
the office held or the employment engaged in is such that it normally or specifically requires a
person who possesses personal prestige; and (C) the person's employment contract or letter of
appointment provides or anticipates that the person will gain financially from activities which are
not a part of his or her office or employment.
(c) Gifts. -- (1) A public official or public employee may not solicit any gift unless the
solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family: Provided, That no public official or
public employee may solicit for a charitable purpose any gift from any person who is also an
official or employee of the state and whose position as such is subordinate to the soliciting official
or employee: Provided, however, That nothing herein shall prohibit a candidate for public office
from soliciting a lawful political contribution. No official or employee may knowingly accept
any gift, directly or indirectly, from a lobbyist or from any person whom the official or employee
knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his or her agency;
(B) Is engaged in activities which are regulated or controlled by his or her agency; or
(C) Has financial interests which may be substantially and materially affected, in a manner
distinguishable from the public generally, by the performance or nonperformance of his or her
official duties.
(2) Notwithstanding the provisions of subdivision (1) of this subsection, a person who is
a public official or public employee may accept a gift described in this subdivision, and there
shall be a presumption that the receipt of such gift does not impair the impartiality and
independent judgment of the person. This presumption may be rebutted only by direct objective
evidence that the gift did impair the impartiality and independent judgment of the person or that
the person knew or had reason to know that the gift was offered with the intent to impair his or
her impartiality and independent judgment. The provisions of subdivision (1) of this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant monetary value;
(C) Unsolicited gifts of nominal value or trivial items of informational value;
(D) Reasonable expenses for food, travel and lodging of the official or employee for a
meeting at which the official or employee participates in a panel or has a speaking engagement
at the meeting;
(E) Gifts of tickets or free admission extended to a public official or public employee to
attend charitable, cultural or political events, if the purpose of such gift or admission is a courtesy
or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member of the same household.
(3) The Commission shall, through legislative rule promulgated pursuant to chapter
twenty-nine-a of this code, establish guidelines for the acceptance of a reasonable honorarium by
public officials and elected officials. The rule promulgated shall be consistent with this section.
Any elected public official may accept an honorarium only when: (1) That official is a part-time
elected public official; (2) the fee is not related to the official's public position or duties; (3) the
fee is for services provided by the public official that are related to the public official's regular,
nonpublic trade, profession, occupation, hobby or avocation; and (4) the honorarium is not
provided in exchange for any promise or action on the part of the public official.
(4) Nothing in this section shall be construed so as to prohibit the giving of a lawful
political contribution as defined by law.
(5) The Governor or his designee may, in the name of the state of West Virginia, accept
and receive gifts from any public or private source. Any such gift so obtained shall become the
property of the state and shall, within thirty days of the receipt thereof, be registered with the
Commission and the division of culture and history.
(6) Upon prior approval of the joint committee on government and finance, any member
of the Legislature may solicit donations for a regional or national legislative organization conference or other legislative organization function to be held in the state for the purpose of
deferring costs to the state for hosting of the conference or function. Legislative organizations
are bipartisan regional or national organizations in which the joint committee on government and
finance authorizes payment of dues or other membership fees for the Legislature's participation,
and which assist this and other state legislatures and their staff through any of the following:
(i) Advancing the effectiveness, independence, and integrity of legislatures in the states
of the United States;
(ii) Fostering interstate cooperation and facilitating information exchange among state
legislatures;
(iii) Representing the states and their legislatures in the American federal system of
government;
(iv) Improving the operations and management of state legislatures and the effectiveness
of legislators and legislative staff, and to encourage the practice of high standards of conduct by
legislators and legislative staff;
(v) Promoting cooperation between state legislatures in the United States and legislatures
in other countries.
The solicitations may only be made in writing. The legislative organization may act as
fiscal agent for the conference and receive all donations. In the alternative, a bona fide banking
institution may act as the fiscal agent. The official letterhead of the Legislature may not be used
by the legislative member in conjunction with the fund raising or solicitation effort. The
legislative organization for which solicitations are being made shall file with the Joint Committee
on Government and Finance and with the Secretary of State for publication in the State Register
as provided in article two of chapter twenty-nine-a of the Code, copies of letters, brochures and
other solicitation documents, along with a complete list of the names and last known addresses
of all donors and the amount of donations received. Any solicitation by a legislative member
shall contain the following disclaimer:
"This solicitation is endorsed by [name of member]. This endorsement does not
imply support of the soliciting organization, nor of the sponsors who may respond to the solicitation. A copy of all solicitations are on file with the West Virginia
Legislature's Joint Committee on Government and Finance, and with the
Secretary of State, and are available for public review."
(7) Upon written notice to the Commission, any member of the Board of Public Works
may solicit donations for a regional or national organization conference or other function related
to the office of the member to be held in the state for the purpose of deferring costs to the state
for hosting of the conference or function. The solicitations may only be made in writing. The
organization may act as fiscal agent for the conference and receive all donations. In the
alternative, a bona fide banking institution may act as the fiscal agent. The official letterhead of
the office of the Board of Public Works member may not be used in conjunction with the fund
raising or solicitation effort. The organization for which solicitations are being made shall file
with the Joint Committee on Government and Finance, with the secretary of state for publication
in the state register as provided in article two of chapter twenty-nine-a of the code and with the
Commission, copies of letters, brochures and other solicitation documents, along with a complete
list of the names and last known addresses of all donors and the amount of donations received.
Any solicitation by a member of the Board of Public Works shall contain the following
disclaimer: "This solicitation is endorsed by (name of member of Board of Public Works.) This
endorsement does not imply support of the soliciting organization, nor of the sponsors who may
respond to the solicitation. Copies of all solicitations are on file with the West Virginia
Legislature's Joint Committee on Government and Finance, with the West Virginia Secretary of
State and with the West Virginia Ethics Commission, and are available for public review." Any
monies in excess of those donations needed for the conference or function shall be deposited in
the Capitol Dome and Capitol Improvement Fund established in section two, article four of
chapter five-a of this code.
(d) Interests in public contracts. -- (1) In addition to the provisions of section fifteen,
article ten, chapter sixty-one of this code, no elected or appointed public official or public
employee or member of his or her immediate family or business with which he or she is
associated may be a party to or have an interest in the profits or benefits of a contract which such the official or employee may have direct authority to enter into, or over which he or she may have
control: Provided, That nothing herein shall be construed to prevent or make unlawful the
employment of any person with any governmental body: Provided, however, That nothing herein
shall be construed to prohibit a member of the Legislature from entering into a contract with any
governmental body, or prohibit a part-time appointed public official from entering into a contract
which such the part-time appointed public official may have direct authority to enter into or over
which he or she may have control when such the official has not participated in the review or
evaluation thereof, has been recused from deciding or evaluating and has been
excused from
voting on such the contract and has fully disclosed the extent of such his or her interest in the
contract.
(2) In the absence of bribery or a purpose to defraud, an elected or appointed public
official or public employee or a member of his or her immediate family or a business with which
he or she is associated shall not be considered as having an interest in a public contract when such
a person has a limited interest as an owner, shareholder or creditor of the business which is the
contractor on the public contract involved. A limited interest for the purposes of this subsection
is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the outstanding shares of a corporation;
or
(ii) Not exceeding thirty thousand dollars interest in the profits or benefits of the contract;
or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of a business; or
(ii) Not exceeding thirty thousand dollars interest in the profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this subsection would result in the
loss of a quorum in a public body or agency, in excessive cost, undue hardship, or other
substantial interference with the operation of a state, county, municipality, county school board
or other governmental agency, the affected governmental body or agency may make written application to the Ethics Commission for an exemption from subdivisions (1) and (2) of this
subsection.
(e) Confidential information. -- No present or former public official or employee may
knowingly and improperly disclose any confidential information acquired by him or her in the
course of his or her official duties nor use such information to further his or her personal interests
or the interests of another person.
(f) Prohibited representation. -- No present or former elected or appointed public official
or public employee shall, during or after his or her public employment or service, represent a
client or act in a representative capacity with or without compensation on behalf of any person
in a contested case, rate-making proceeding, license or permit application, regulation filing or
other particular matter involving a specific party or parties which arose during his or her period
of public service or employment and in which he or she personally and substantially participated
in a decision-making, advisory or staff support capacity, unless the appropriate government
agency, after consultation, consents to such representation. A staff attorney, accountant or other
professional employee who has represented a government agency in a particular matter shall not
thereafter represent another client in the same or substantially related matter in which that client's
interests are materially adverse to the interests of the government agency, without the consent of
the government agency: Provided, That this prohibition on representation shall not apply when
the client was not directly involved in the particular matter in which such the professional
employee represented the government agency, but was involved only as a member of a class. The
provisions of this subsection shall not apply to legislators who were in office and legislative staff
who were employed at the time it originally became effective on the first day of July, one
thousand nine hundred eighty-nine, and those who have since become legislators or legislative
staff and those who shall serve hereafter as legislators or legislative staff.
(g) Limitation on practice before a board, agency, commission or department. -- (1) No
elected or appointed public official and no full-time staff attorney or accountant shall, during his
or her public service or public employment or for a period of six months one year after the
termination of his or her public service or public employment with a governmental entity authorized to hear contested cases or promulgate regulations or propose rules, appear in a
representative capacity before the governmental entity in which he or she serves or served or is
or was employed in the following matters:
(A) A contested case involving an administrative sanction, action or refusal to act;
(B) To support or oppose a proposed regulation rule;
(C) To support or contest the issuance or denial of a license or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any formal or informal appearance
before, or any written or oral communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall prohibit, during any period, a former
public official or employee from being retained by or employed to represent, assist, or act in a
representative capacity on behalf of the public agency by which he or she was employed or in
which he or she served. Nothing in this subsection shall be construed to prevent a former public
official or employee from representing another state, county, municipal or other governmental
entity before the governmental entity in which he or she served or was employed within six
months one year after the termination of his or her employment or service in the entity.
(3) A present or former public official or employee may appear at any time in a
representative capacity before the Legislature, a county commission, city or town council or
county school board in relation to the consideration of a statute, budget, ordinance, rule,
resolution or enactment.
(4) Members and former members of the Legislature and professional employees and
former professional employees of the Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of the state, or of county or
municipal governments including county school boards.
(5) An elected or appointed public official, full-time staff attorney or accountant who
would be adversely affected by the provisions of this subsection may apply to the Ethics
Commission for an exemption from the six months prohibition against appearing in a representative capacity, when the person's education and experience is such that the prohibition
would, for all practical purposes, deprive the person of the ability to earn a livelihood in this state
outside of the governmental agency. The Ethics Commission shall by legislative rule establish
general guidelines or standards for granting an exemption or reducing the time period, but shall
decide each application on a case-by-case basis.
(h) Employment by regulated persons. -- (1) No full-time official or full-time public
employee may seek employment with, be employed by, or seek to purchase, sell or lease real or
personal property to or from any person who:
(A) Had a matter on which he or she took, or a subordinate is known to have taken,
regulatory action within the preceding twelve months; or
(B) Has a matter before the agency to which he or she is working or a subordinate is
known by him or her to be working.
(2) Within the meaning of this section, the term "employment" includes professional
services and other services rendered by the public official or public employee, whether rendered
as employee or as an independent contractor; "seek employment" includes responding to
unsolicited offers of employment as well as any direct or indirect contact with a potential
employer relating to the availability or conditions of employment in furtherance of obtaining
employment; and "subordinate" includes only those agency personnel over whom the public
servant official or public employee has supervisory responsibility.
(3) A full-time public official or full-time public employee who would be adversely
affected by the provisions of this subsection may apply to the Ethics Commission for an
exemption from the prohibition contained in subsection (1). The Ethics Commission shall by
legislative rule establish general guidelines or standards for granting an exemption, but shall
decide each application on a case-by-case basis.
(4) A full-time public official or full-time public employee may not take personal
regulatory action on a matter affecting a person by whom he or she is employed or with whom
he or she is seeking employment or has an agreement concerning future employment.
(5) A full-time public official or full-time public employee may not receive private compensation for providing information or services that he or she is required to provide in
carrying out his or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members of the Legislature who have
asked to be excused from voting or who have made inquiry as to whether they should be excused
from voting on a particular matter and who are required by the presiding officer of the House of
Delegates or Senate of West Virginia to vote under the rules of the particular house shall not be
guilty of any violation of ethics under the provisions of this section for a vote so cast.
(j) Limitations on participation in licensing and rate-making proceedings. -- No public
official or employee may participate within the scope of his or her duties as a public official or
employee, except through ministerial functions as defined in section three, article one of this
chapter, in any license or rate-making proceeding that directly affects the license or rates of any
person, partnership, trust, business trust, corporation or association in which the public official
or employee or his or her immediate family owns or controls more than ten percent. No public
official or public employee may participate within the scope of his or her duties as a public
official or public employee, except through ministerial functions as defined in section three,
article one of this chapter, in any license or rate-making proceeding that directly affects the
license or rates of any person to whom the public official or public employee or his or her
immediate family, or a partnership, trust, business trust, corporation or association of which the
public official or employee, or his or her immediate family, owns or controls more than ten
percent, has sold goods or services totaling more than one thousand dollars during the preceding
year, unless the public official or public employee has filed a written statement acknowledging
such sale with the public agency and the statement is entered in any public record of the agency's
proceedings. This subsection shall not be construed to require the disclosure of clients of
attorneys or of patients or clients of persons licensed pursuant to articles three, eight, fourteen,
fourteen-a, fifteen, sixteen, twenty, twenty-one or thirty-one, chapter thirty of this code.
(k) Certain compensation prohibited. -- (1) A public employee may not receive additional
compensation from another publicly-funded state, county or municipal office or employment for
working the same hours, unless:
(A) The public employee's compensation from one public employer is reduced by the
amount of compensation received from the other public employer;
(B) The public employee's compensation from one public employer is reduced on a pro
rata basis for any work time missed to perform duties for the other public employer;
(C) The public employee uses earned paid vacation, personal or compensatory time or
takes unpaid leave from his or her public employment to perform the duties of another public
office or employment; or
(D) A part-time public employee who does not have regularly scheduled work hours or
a public employee who is authorized by one public employer to make up, outside of regularly
scheduled work hours, time missed to perform the duties of another public office or employment
maintains time records, verified by the public employee and his or her immediate supervisor at
least once every pay period, showing the hours that the public employee did, in fact, work for
each public employer. The public employer shall submit these time records to the Ethics
Commission on a quarterly basis.
(4) This section does not prohibit a retired public official or public employee from
receiving compensation from a publicly-funded office or employment in addition to any
retirement benefits to which the retired public official or public employee is entitled.
(k) (l)Certain expenses prohibited. -- No public official or public employee shall
knowingly request or accept from any governmental entity compensation or reimbursement for
any expenses actually paid by a lobbyist and required by the provisions of this chapter to be
reported, or actually paid by any other person.
(l) (m) Any person who is employed as a member of the faculty or staff of a public
institution of higher education and who is engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or private entities and thereby derives private
benefits from such activities shall be exempt from the prohibitions contained in subsections (b),
(c) and (d) of this section when the activity is approved as a part of an employment contract with
the governing board of such the institution or has been approved by the employees' employee's
department supervisor or the president of the institution by which the faculty or staff member is employed.
(m) (n) Except as provided in this section, a person who is a public official or public
employee may not solicit private business from a subordinate public official or public employee
whom he or she has the authority to direct, supervise or control. A person who is a public official
or public employee may solicit private business from a subordinate public official or public
employee whom he or she has the authority to direct, supervise or control when:
(A) The solicitation is a general solicitation directed to the public at large through the
mailing or other means of distribution of a letter, pamphlet, handbill, circular or other written or
printed media; or
(B) The solicitation is limited to the posting of a notice in a communal work area; or
(C) The solicitation is for the sale of property of a kind that the person is not regularly
engaged in selling; or
(D) The solicitation is made at the location of a private business owned or operated by the
person to which the subordinate public official or public employee has come on his or her own
initiative.
(n) (p) The Commission may, by legislative rule promulgated in accordance with chapter
twenty-nine-a of this Code, may define further exemptions from this section as necessary or
appropriate.
§6B-2-5b. Ethics training requirements.
An individual who, on or after the effective date of this subsection, is elected or appointed
to serve in the Legislature, as a member of the Board of Public Works, and those positions in the
executive branch of state government which the Governor designates by executive order, shall,
within six months of filling such position, attend a training course conducted by the Ethics
Commission on the requirements of the Ethics Act. The Commission shall offer the training
contemplated by this section once every four years and shall prescribe by legislative rule the
nature, duration and content of the training and the manner in which the training will be
conducted.
§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article shall contain the following
information:
(1) The name, residential and business addresses of the person filing the statement and all
names under which the person does business.
(2) The name and address of each employer of the person.
(3) The name and address of each business in which the person filing the statement has
or had in the last year an interest of ten thousand dollars at fair market value or five percent
ownership interest, if that interest is valued at more ten thousand dollars.
(3) (4) The identification, by category, of every source of income over five one thousand
dollars received during the preceding calendar year, in his or her own name or by any other person
for his or her use or benefit, by the person filing the statement and a brief description of the nature
of the services for which the income was received. This subdivision does not require a person
filing the statement who derives income from a business, profession or occupation to disclose the
individual sources and items of income that constitute the gross income of that business,
profession or occupation nor does this subdivision require a person filing the statement to report
the source or amount of income derived by his or her spouse.
(4) (5) If the person, profited or benefitted in the year prior to the date of filing from a
contract for the sale of goods or services to a state, county, municipal or other local governmental
agency either directly or through a partnership, corporation or association in which such the
person owned or controlled more than ten percent, the person shall describe the nature of the
goods or services and identify the governmental agencies which purchased the goods or services.
(5) (6) Each interest group or category listed below doing business in this state with which
the person filing the statement, did business or furnished services and from which the person
received more than twenty percent of the person's his or her gross income during the preceding
calendar year. The groups or categories are electric utilities, gas utilities, telephone utilities, water
utilities, cable television companies, interstate transportation companies, intrastate transportation
companies, oil or gas retail companies, banks, savings and loan associations, loan or finance
companies, manufacturing companies, surface mining companies, deep mining companies, mining equipment companies, chemical companies, insurance companies, retail companies, beer,
wine or liquor companies or distributors, recreation related companies, timbering companies,
hospitals or other health care providers, trade associations, professional associations, associations
of public employees or public officials, counties, cities or towns, labor organizations, waste
disposal companies, wholesale companies, groups or associations seeking to legalize gambling,
promoting gaming or lotteries, advertising companies, media companies, race tracks and
promotional companies.
(6) (7) The names of all persons, excluding that person's immediate family, parents, or
grandparents residing or transacting business in the state to whom the person filing the statement,
owes, on the date of execution of this statement in the aggregate in his or her own name or in the
name of any other person more than twelve five thousand five hundred dollars: Provided, That
nothing herein shall require the disclosure of a mortgage on the person's primary and secondary
residences or of automobile loans on automobiles maintained for the use of the person's
immediate family, or of a student loan, nor shall this section require the disclosure of debts which
result from the ordinary conduct of such the person's business, profession, or occupation or of
debts of the person filing the statement to any financial institution, credit card company, or
business, in which the person has an ownership interest: Provided, however, That the previous
proviso shall not exclude from disclosure loans obtained pursuant to the linked deposit program
provided for in article one-a, chapter twelve of this code or any other loan or debt incurred which
requires approval of the state or any of its political subdivisions.
(7) (8) The names of all persons except immediate family members, parents and
grandparents residing or transacting business in the state (other than a demand or savings account
in a bank, savings and loan association, credit union or building and loan association or other
similar depository) who owes on the date of execution of this statement, more, in the aggregate,
than twelve five thousand five hundred dollars to the person filing the statement, either in his or
her own name or to any other person for his or her use or benefit. This subdivision does not
require the disclosure of debts owed to the person filing the statement which debts result from the
ordinary conduct of such the person's business, profession or occupation or of loans made by the person filing the statement to any business in which the person has an ownership interest.
(9) The source of each gift, including those described in subdivision (2) of subsection (c)
section five of this article, having a value of over one hundred dollars, received from a person
having a direct and immediate interest in a governmental activity over which the person filing the
statement has control, shall be reported by the person filing the statement when such gift is given
to said person in his or her name or for his or her use or benefit during the preceding calendar
year: Provided, That, effective from passage of the amendments to this section enacted during
the First Extraordinary Session of the Legislature in two thousand five, any person filing a
statement required to be filed pursuant to this section on or after the first day of January, two
thousand five, is not required to report those gifts described in subdivision (2), subsection (c),
section five of this article that are otherwise required to be reported under section four, article
three of this chapter: Provided, further, That gifts received by will or by virtue of the laws of
descent and distribution, or received from one's spouse, child, grandchild, parents or
grandparents, or received by way of distribution from an inter vivos or testamentary trust
established by the spouse or child, grandchild, or by an ancestor of the person filing the statement
are not required to be reported. As used in this subdivision any series or plurality of gifts which
exceeds in the aggregate the sum of one hundred dollars from the same source or donor, either
directly or indirectly, and in the same calendar year, shall be regarded as a single gift in excess
of that aggregate amount.
(10) The signature of the person filing the statement.
§ 6B-2-9. Special prosecutor authorized
(a)(1) If after referral to the appropriate county prosecuting attorney under subsection (v),
section four of this article the Ethics Commission finds as the result of an investigation of a
complaint that a pattern of ethics violations or criminal violations has occurred under this chapter
or under article five-a, chapter sixty-one of this code, exists in a state, county or covered
municipal government, county school board or one of their respective departments, agencies,
boards or commissions, and also finds that the prosecuting attorney of the county in which the
violation occurred is, for some reason, due to ill health or conflict of interest, unable or unwilling to take appropriate action undertake a criminal investigation or prosecution, the chairman chair
of the Ethics Commission may, upon a two-thirds vote of the members of the Ethics Commission,
petition the appropriate circuit court for the appointment of a special prosecutor through the West
Virginia Prosecuting Attorneys Institute pursuant to the provisions of section six, article four,
chapter seven of this Code for the purpose of conducting an investigation to determine whether
a violation of the criminal law of this state has occurred.
(2) If the West Virginia Prosecuting Attorneys Institute is unable, due to a conflict of
interest of its Executive Director, to assign a special prosecuting attorney to a criminal
investigation or prosecution, the chair of the Ethics Commission may, upon a two-thirds vote of
the members of the Ethics Commission, petition the appropriate circuit court for the appointment
of a special prosecutor through communication with the Board of Directors of the West Virginia
Prosecuting Attorneys Institute.
(b) A special prosecutor shall have the same authority as a county prosecutor to investigate
and prosecute persons subject to this article for criminal violations committed in connection with
their public office or employment which constitute felonies. No person who is serving as a
prosecuting attorney or assistant prosecuting attorney of any county is required to take an
additional oath when appointed to serve as a special prosecuting attorney.
(c) The ethics committee shall be authorized to employ and assign the necessary
professional and clerical staff to assist any such special prosecutor in the performance of his or
her duties and to pay and to set the compensation to be paid to a special prosecutor in an amount
not to exceed seventy-five dollars per hour up to a maximum of fifty thousand dollars per annum.
(d) The special prosecutor shall be empowered to make a presentment to any regularly or
specially impaneled grand jury in the appointing circuit court. The special prosecutor shall be
empowered to prosecute any person indicted by such grand jury.
§6B-2-10. Violations and penalties.
(a) If any Any person who violates the provisions of subsection subsections (e), (f) or (g),
section five of this article, or and any person, other than a complainant, who violates the
provisions of subdivision (1), subsection (e), section four of this article, such person, upon conviction thereof, shall be is guilty of a misdemeanor, and, upon conviction, shall be punished
by confinement confined in the county or regional jail for a period not to exceed six months or
shall be fined not more than one thousand dollars, or both. such confinement and fine. If any
person violating the provisions of subdivision (1), subsection (e), section four of this article shall
be a A member or employee of the Commission or an employee thereof, he or she shall, upon
conviction, be convicted of violating subsection (e), section four of this article is subject to
immediate removal from office or discharge from employment.
(b) If any Any person who violates the provisions of subsection (f), section six of this
article by willfully and knowingly filing a false financial statement, such person or knowingly and
willfully concealing a material fact in filing the statement, is guilty of a misdemeanor and, shall,
upon conviction thereof, be deemed guilty of false swearing and shall be punished as provided
in section three, article five, chapter sixty-one of this code, shall be fined not more than one
thousand dollars, or confined in the county or regional jail not more than one year, or both.
(c) If any Any person who knowingly fails or refuses to file a financial statement required
by section six of this article, such person, upon conviction thereof, shall be is guilty of a
misdemeanor, and, upon conviction, shall be fined not less than one hundred dollars nor more
than one thousand dollars.
(d) If any complainant violates the provisions of subdivision (2), subsection (f), section
four, article two of this chapter by knowingly and willfully disclosing any information made
confidential by an order of the Commission, he or she shall be subject to administrative sanction
by the Commission as provided for in subsection (r), section four of this article. If any
Commission member or staff knowingly violates subsection (o), section four of this article, such
person, upon conviction thereof, shall be guilty of a misdemeanor, and shall be fined not less than
one hundred dollars nor more than one thousand dollars.
ARTICLE 3. LOBBYISTS.
§ 6B-3-1. Definitions.
As used in this article, unless the context in which used clearly indicates otherwise:
(1) "Compensation" means money or any other thing of value received or to be received by a lobbyist from an employer for services rendered.
(2) "Employer" or "lobbyist's employer" means any person who employs or retains a
lobbyist.
(3) "Expenditure" means payment, distribution, loan, advance deposit, reimbursement, or
gift of money, real or personal property or any other thing of value; or a contract, promise or
agreement, whether or not legally enforceable.
(4) "Government officer or employee" means a member of the Legislature, a legislative
employee, the Governor and other members of the Board of Public Works, heads of executive
departments, and any other public officer or public employee under the legislative or executive
branch of state government who is empowered or authorized to make policy and perform
non-ministerial functions. In the case of elected offices included herein, the term "government
officer or employee" shall include includes candidates who have been elected but who have not
yet assumed office.
(5) "Legislation" means bills, resolutions, motions, amendments, nominations, and other
matters pending or proposed in either house of the Legislature, and includes any other matters that
may be the subject of action by either house or any committee of the Legislature and all bills or
resolutions that, having passed both houses, are pending approval or veto by the Governor.
(6) "Lobbying" or "lobbying activity" means the act of communicating with a government
officer or employee to promote, advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto of any legislation which may
be considered by the Legislature of this state; or
(ii) The adoption or rejection of any rule, regulation, legislative rule, standard, rate, fee
or other delegated legislative or quasi-legislative action to be taken or withheld by any executive
department.
(7) "Lobbying firm" means any business entity, including an individual contract lobbyist,
which meets either of the following criteria:
(A) The business entity receives or becomes entitled to receive any compensation, other
than reimbursement for reasonable travel expenses, for the purpose of lobbying on behalf of any other person, and any partner, owner, officer, or employee of the business entity.
(B) The business entity receives or becomes entitled to receive any compensation, other
than reimbursement for reasonable travel expenses, to communicate directly with any elected
state official, agency official, or legislative official for the purpose of lobbying on behalf of any
other person.
(8)(A) "Lobbyist" means a person who, through communication with a government officer
or employee any individual employed by a lobbying firm or who is otherwise employed or
contracts for economic consideration, other than reimbursement for reasonable travel expenses,
to communicate directly or through his or her agents with any elective state official, agency
official or legislative official for the purpose of promotes, advocates or opposes promoting,
advocating, opposing or otherwise attempts attempting to influence:
(i) The passage or defeat or the executive approval or veto of any legislation which may
be considered by the Legislature of this state; or
(ii) The adoption or rejection of any rule, regulation legislative rule, standard, rate, fee or
other delegated legislative or quasi-legislative action to be taken or withheld by any executive
department.
(B) The term "lobbyist" shall does not include the following persons, who shall be are
exempt from the registration and reporting requirements set forth in this article, unless such
persons they engage in activities which would otherwise subject them to the registration and
reporting requirements:
(i) Persons who limit their lobbying activities to appearing before public sessions of
committees of the Legislature, or public hearings of state agencies, are exempt.
(ii) Persons who limit their lobbying activities to attending receptions, dinners, parties or
other group functions and make no expenditure in connection with such lobbying are exempt.
(iii) Persons who engage in news or feature reporting activities and editorial comment as
working members of the press, radio, or television and persons who publish or disseminate such
news, features or editorial comment through a newspaper, book, regularly published periodical,
radio station or television station, are exempt.
(iv) Persons who lobby without compensation or other consideration, other than
reimbursement for reasonable travel expenses, for acting as lobbyists, who are not employed by
a lobbying firm or lobbyist employer, and whose total expenditures in connection with such
lobbying activities do not exceed twenty-five one hundred and fifty dollars during any calendar
year, are exempt. The exemption exemptions contained in this subparagraph (iv) and in
subparagraph (ii) are intended to permit and encourage citizens of this state to exercise their
constitutional rights to assemble in a peaceable manner, consult for the common good, instruct
their representatives, and apply for a redress of grievances. Accordingly, such persons may lobby
without incurring any registration or reporting obligation under this article. Any person exempt
under this subparagraph (iv) or subparagraph (ii) may at his or her option register and report under
this article.
(v) Persons who lobby on behalf of a nonprofit organization with regard to legislation,
without compensation, and who restrict their lobbying activities to no more than twenty days or
parts thereof during any regular session of the Legislature, are exempt. The Commission may
promulgate a legislative rule to require registration and reporting by persons who would otherwise
be exempt under this subparagraph, if it determines that such a rule is necessary to prevent
frustration of the purposes of this article. Any person exempt under this subparagraph may, at
his or her option, register and report under this article.
(vi) The Governor, members of the Governor's staff, members of the Board of Public
Works, officers and employees of the executive branch who communicate with a member of the
Legislature on the request of that member, or who communicate with the Legislature, through the
proper official channels, requests for legislative action or appropriations which are deemed
necessary for the efficient conduct of the public business or which are made in the proper
performance of their official duties, are exempt.
(vii) Members of the Legislature are exempt.
(viii) Persons employed by the Legislature for the purpose of aiding in the preparation or
enactment of legislation or the performance of legislative duties are exempt.
(ix) Persons rendering professional services in drafting proposed legislation or in advising or rendering opinions to clients as to the construction and effect of proposed or pending
legislation are exempt.
(8) (9) "Person" means any individual, partnership, trust, estate, business trust, association,
or corporation; any department, commission, board, publicly supported college or university,
division, institution, bureau, or any other instrumentality of the state; or any county, municipal
corporation, school district or any other political subdivision of the state.
§6B-3-2. Registration of lobbyists.
(a) Before engaging in any lobbying activity, or within thirty days after being employed
as a lobbyist, whichever occurs first, a lobbyist shall register with the Ethics Commission by
filing a lobbyist registration statement. The registration statement shall contain information and
be in a form prescribed by the Ethics Commission by legislative rule, including, but not limited
to, the following information:
(1) The registrant's name, business address, telephone numbers and any temporary
residential and business addresses and telephone numbers used or to be used by the registrant
while lobbying during a legislative session;
(2) The name, address and occupation or business of the registrant's employer;
(3) A statement as to whether the registrant is employed or retained by his or her employer
solely as a lobbyist or is a regular employee performing services for the employer which include,
but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or retained by his or her employer
under any agreement, arrangement or understanding according to which the registrant's
compensation, or any portion of the registrant's compensation, is or will be contingent upon the
success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the registrant will lobby or employ
some other person to lobby in a manner which requires registration under this article; and
(6) An appended written authorization from each of the lobbyist's employers confirming
the lobbyist's employment and the subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation from more than one person for services as a lobbyist shall file a separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist. When a lobbyist whose fee for
lobbying with respect to the same subject is to be paid or contributed by more than one person,
then the lobbyist may file a single statement, in which he or she shall detail the name, business
address and occupation of each person paying or contributing to the fee.
(c) Whenever a change, modification or termination of the lobbyist's employment occurs,
the lobbyist shall, within one week of the change, modification or termination, furnish full
information regarding the change, modification or termination by filing with the Commission an
amended registration statement.
(d) Each lobbyist who has registered shall file a new registration statement, revised as
appropriate, on the Monday preceding the second Wednesday in January of each odd-numbered
year, and failure to do so terminates his or her registration authorization to lobby. Until the
registration is renewed, the person may not engage in lobbying activities unless he or she is
otherwise exempt under paragraph (B), subdivision (7), section one of this article.
§6B-3-3a. Registration fees.
(a) Each lobbyist shall, at the time he or she registers, pay the Commission a base
registration fee of sixty one hundred
dollars, plus one hundred dollars for each employer
represented, to be filed with the initial registration statement and with each new registration
statement filed by the lobbyist in subsequent odd numbered years: Provided, That if a lobbyist
files his or her initial registration after the first day of January during an even-numbered year, he
or she shall only be required to pay a reduced registration fee of thirty dollars for the balance of
that year Whenever a lobbyist modifies his or her registration to add additional employers an
additional registration fee of one hundred dollars for each additional employer represented shall
be paid to the Commission.
(b) The Commission shall collect the registration fees authorized by this section and pay
them into the state treasury to the credit of the state general fund. All fees authorized and
collected pursuant to this article shall be paid to the Ethics Commission and thereafter deposited
into the special revenue account created pursuant to section six, article one of this chapter.
§6B-3-3b. Conflict of interest.
A lobbyist or a lobbyist's immediate family member may not participate in any decision
as a member of a state or county board, council, commission, or public service district if the
lobbyist may receive direct, personal economic or pecuniary benefit from a decision of that state
or county board, council, commission, or public service district. The lobbyist's economic or
pecuniary benefit must affect him or her directly and not merely as a member of a class.
§6B-3-3c. Lobbyist training course.
The Commission shall provide a training course for registered lobbyists and prospective
lobbyists at least twice each year regarding the provisions of the ethics code relevant to lobbyists.
One such course shall be conducted during the month of January. In addition to the registration
fees authorized in section three-a of this article, the Commission may collect a reasonable fee
from those attending lobbyist training, which is to be collected by the Ethics Commission and
deposited in the special revenue account created pursuant to section six, article one of this
chapter. To maintain registration and engage in lobbying activities, a lobbyist must complete one
such training course per year.
§6B-3-4. Reporting by lobbyists.
(a) A registered lobbyist shall file with the Commission reports of his or her lobbying
activities, signed by the lobbyist. The reports shall be filed filed three times a year as follows:
(1) On or before the Monday preceding the second Wednesday in January of each year the
fifteenth day of May, a lobbyist shall file an annual report of all lobbying activities in which he
or she engaged in during the preceding calendar year; and from the first day of January through
the thirtieth day of April.
(2) If a lobbyist engages in lobbying with respect to legislation, then:
(A) Between the fortieth and forty-fifth days of any regular session of the Legislature in
which any lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying
activities which occurred since the beginning of the calendar year; and
(B) Within twenty-one days after the adjournment sine die of any regular or extraordinary
session of the Legislature in which any lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying activities which occurred since the beginning of the calendar
year or since the filing of the last report required by this section, whichever is later.
(2) On or before the fifteenth day of September, a lobbyist shall report all lobbying
activities in which he or she engaged from the first day of May through the thirty-first day of
August;
(3) On or before the fifteenth day of January, a lobbyist shall report all lobbying activities
in which he or she engaged from the first day of September through the thirty-first day of
December.
(b) If the date on which a lobbyist expenditure report is due falls on a Saturday, Sunday,
or legal holiday, the report will be considered timely filed if it is postmarked not later than the
next business day. If a registered lobbyist files a late report, the lobbyist shall pay the
Commission a fee of ten dollars for each late day, not to exceed a total of two hundred and fifty
dollars. If a registered lobbyist fails to file a report or to pay the required fee for filing an
untimely report, the Commission may, after written notice sent by registered mail, return receipt
requested, suspend the lobbyist's privileges as a registered lobbyist until the lobbyist has
satisfactorily complied with all reporting requirements and paid the required fee.
(b) (c) (1) Except as otherwise provided in this section, each report filed by a lobbyist
shall show the total amount of all expenditures for lobbying activities made or incurred by on
behalf of the lobbyist, or on behalf of the lobbyist, by the lobbyist's employer during the period
covered by the report. The report shall also show subtotals segregated according to financial
category, including meals and beverages; living accommodations; advertising; travel;
contributions; gifts to public officials or employees or to members of the immediate family of a
public official or employee; and other expenses or services.
(2) Lobbyists are not required to report the following:
(A) Unreimbursed personal living and travel expenses not incurred directly for lobbying;
(B) Any expenses incurred for his or her the lobbyist's own living accommodations;
(C) Any expenses incurred for his or her the lobbyist's own travel to and from public
meetings or hearings of the legislative and executive branches; or
(D) Any expenses incurred for telephone, and any office expenses, including rent and
salaries and wages paid for staff and secretarial assistance. and
(E) Separate expenditures to or on behalf of a public official or employee in an amount
of less than five dollars.
(c) (d) If a lobbyist is employed by more than one employer, the report shall show the
proportionate amount of the expenditures in each category incurred on behalf of each of his or
her employers.
(d) (e) The report shall describe the subject matter of the lobbying activities in which the
lobbyist has been engaged during the reporting period.
(e) (f) If, during the period covered by the report, the lobbyist made expenditures or
expenditures were made or incurred on behalf of the lobbyist in the reporting categories of meals
and beverages, living accommodations, travel, gifts or other expenditures, other than for those
expenditures governed by subsection (f) (g) of this section, which expenditures in any reporting
category total more than twenty-five dollars to or on behalf of any particular public official or
employee, the lobbyist shall report the name of the public official or employee to whom or on
whose behalf the expenditures were made, the total amount of the expenditures, and the subject
matter of the lobbying activity, if any.: Provided, That a registered lobbyist who entertains more
than one public official or public employee at a time with meals and beverages complies with the
provisions of this section if he or she reports the names of the public officials or public employees
entertained and the total amount expended for meals and beverages for all of the public officials
or public employees entertained: Provided, further, That where several lobbyists join in
entertaining one or more public officials or public employees at a time with meals and beverages,
each lobbyist complies with the provisions of this section by reporting the names of the public
officials or public employees entertained and his or her proportionate share of the total amount
expended for meals and beverages for all of the public officials or public employees entertained.
Under this subsection, no portion of the amount of an expenditure for a dinner, party or other
function sponsored by a lobbyist or a lobbyist's employer need be attributed to or counted toward
the reporting amount of twenty-five dollars for a particular public official or employee who attends the function if the sponsor has invited to the function all the members of: (1) The
Legislature; (2) either house of the Legislature; (3) a standing or select committee of either house;
or (4) a joint committee of the two houses of the Legislature. However, the amount spent for the
function shall be added to other expenditures for the purpose of determining the total amount of
expenditures reported under subsection (b) (c)(1) of this section. Provided, That if the expenditure
is for a function to which the entire membership of the Legislature has been invited, the lobbyist
need only report that fact, the total amount of the expenditure, and the subject matter of the
lobbying activity.
(f) (g) If, during the period covered by the report, the lobbyist made expenditures in the
reporting categories of meals and beverages, lodging, travel, gifts and scheduled entertainment,
which reporting expenditures in any reporting category total more than twenty-five dollars for or
on behalf of a particular public official or public employee in return for the participation of the
public official or employee in a panel or speaking engagement at the a meeting, the lobbyist shall
report the name of the public official or employee to whom or on whose behalf the expenditures
were made and the total amount of the expenditures.
§6B-3-7. Duties of lobbyists.
A person required to register as a lobbyist under this chapter shall article also have has the
following obligations, the violation of which shall constitute constitutes cause for revocation of
his or her registration and termination of his or her lobbying privileges, and may subject such the
person, and such the person's employer, if such employer aids, abets, ratifies, or confirms any
such act the violation, to other civil liabilities, as provided by this chapter.
(1) Such persons Any person required to register as a lobbyist shall obtain, and preserve,
and make available for inspection by the Commission at any time all accounts, bills, receipts,
books, papers and documents necessary to substantiate the financial reports required to be made
under this article for a period of at least five two years from the date of the filing of the statement
containing such to which those items relate, which accounts, bills, receipts, books, papers, and
documents shall be made available for inspection by the Commission at any time: Provided, That
if a lobbyist is required under the terms of his or her employment contract to turn any records over to his or her employer, responsibility for the preservation of such the records under this subsection
shall rest with such the employer.
(2) In addition, a person required to register as a lobbyist shall may not:
(A) Engage in any lobbying activity as a lobbyist before registering as such as a lobbyist;
(B) Knowingly deceive or attempt to deceive any government officer or employee as to
any fact pertaining to a matter which is the subject of lobbying activity;
(C) Cause or influence the introduction of any legislation for the purpose of thereafter
being employed to secure its defeat;
(D) Exercise any undue influence, extortion, or unlawful retaliation upon any government
officer or employee by reason of such the government officer or employee's position with respect
to, or his or her vote upon, any matter which is the subject of lobbying activity;
(E) Exercise undue influence upon any legislator or other privately employed government
officer or employee through communications with such the person's employer;
(F) Give a gift to any government officer or employee in excess of or in violation of any
limitations on gifts set forth in subsection (c), section five, article two of this chapter, or give any
gift, whether lawful or unlawful, to a government officer or employee without such the
government officer or employee's knowledge and consent.
§6B-3-11. Compliance audits.
(a) The Commission shall initiate, by lottery, random audits of lobbyist registration
statements and disclosure reports required to be filed under this chapter on or after the first day
of July, two thousand five: Provided, That the Commission may not conduct compliance audits
pursuant to this section until it has proposed for promulgation and received final approval from
the Legislature of a legislative rule in accordance with the provisions of chapter twenty-nine-a of
this Code setting forth, among other things, the manner in which the audit is to be conducted, the
information, documents and materials to be considered during the audit, the selection and
qualification of the auditor(s), the audit procedures to be employed by the auditors and the
preparation and contents of any post-audit reports.
(b) The Commission may hold up to four lotteries per year. The number of lotteries held within a given year will be a matter within the Commission's discretion.
(c) The number of audits to be conducted will be determined by the Commission through
resolutions adopted at public meetings and based on various factors, including the complexity,
results and time required to complete the audits.
(d) No lobbyist or lobbyist's employer will be subject to a random audit more than once
in any twenty-four-month period.;
On page one, by striking out the enacting section and inserting in lieu thereof an new
enacting section, to read as follows:
That §6B-1-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that said Code be amended by adding thereto a new section, designated §6B-1-6; that §6B-2-1,
§6B-2-2, §6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said Code be amended and
reenacted; that said Code be amended by adding thereto three new sections, designated §6B-2-2a,
§6B-2-3a and §6B-2-5b; that §6B-3-1, §6B-3-2, §6B-3-3a and §6B-3-4, §6B-3-7 of said Code
be amended and reenacted; and that said Code be amended by adding thereto three new sections,
designated §6B-3-3b, §6B-3-3c and §6B-3-11, all to read as follows:;
And,
On pages one through five, by amending the title of the bill to read as follows:
Com. Sub. for S. B. 1003--A Bill to amend and reenact §6B-1-3 of the Code of West
Virginia, 1931, as amended; to amend said Code by adding thereto a new section, designated
§6B-1-6; to amend and reenact §6B-2-1, §6B-2-2, §6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and
§6B-2-10 of said Code; to amend said Code by adding thereto three new sections, designated
§6B-2-2a, §6B-2-3a and §6B-2-5b; to amend and reenact §6B-3-1, §6B-3-2, §6B-3-3a, §6B-3-4
and §6B-3-7 of said Code; and to amend said Code by adding thereto three new sections,
designated §6B-3-3b, §6B-3-3c and §6B-3-11, all relating generally to the ethical standards of
public officers, employees and lobbyists; providing a definition of certain terms; creating a special
revenue account; clarifying membership qualifications for the West Virginia Ethics Commission;
modifying compensation and procedure for meetings of the West Virginia Ethics Commission;
revising the powers, duties and authority of the Commission; providing for procedures with respect to the filing of complaints against persons subject to said chapter, the determination of
probable cause that a violation of this chapter has occurred and the conduct of hearings with
respect thereto; establishing the Probable Cause Review Board; providing for appointment,
powers and duties; providing for confidentiality requirements as to Commission members and
staff, complainants and informants; establishing prohibition against certain Commission members
and staff for commenting on Commission proceedings; altering sanctions that Commission may
impose; providing immunity for good faith complainants and sanctions for bad faith filings;
referral of criminal conduct to prosecutor; limitations on filing complaints; altering statute of
limitations; clarifying use of public office for private gain; permitting solicitation of certain
donations by members of the Board of Public Works; providing ethical standards for elected and
appointed officials as well as certain public employees; prohibiting public officials and employees
from receiving double compensation in certain circumstances; modifying penalties; providing for
ethics training for certain public officials and employees; revising the contents of financial
disclosure statements required of certain public officials and public employees; providing for the
appointment of special prosecutors in certain cases; providing for penalties for violations of said
chapter; providing definitions of certain terms related to lobbyists; providing for registration and
reporting requirements for lobbyists; modifying registration fees for lobbyists; clarifying conflict
of interests related to lobbying activities; providing for a lobbyist training course; providing for
reporting requirements for lobbyists; altering duties of lobbyists and defining certain acts which
are violations; and providing for random compliance audits of lobbyists and their employers."
Delegate Staton moved that the House of Delegates concur in the Senate amendments to
the House amendments.
Delegate Trump arose to a point of order, stating that he had tendered an amendment to
the Clerk which would have amended the Senate amendment to the House amendment to the
Senate Bill.
The Speaker stated that the amendment would not be in order at this stage due to the fact
that it was and amendment to the third degree, namely the initial House amendment to the Senate
Bill was the amendment to the first degree, the Senate amendment to the House amendment was an amendment to the second degree, clearly permissible under the Joint Rules of the House of
Delegates and the Senate was well as Jefferson's Manual, and the item offered by Delegate
Trump was an amendment to the third degree, and ruled the amendment offered by Delegate
Trump out of order.
The Speaker than state the motion before the House, that being to concur in the Senate
amendment to the House amendment to Com. Sub. for S. B. 1003.
On this question, the yeas and nays were taken (Roll No. 19), and there were--yeas 67,
nays 25, absent and not voting 8, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Blair, Border, Canterbury, Carmichael, Evans, Frich, Hall,
Hamilton, Lane, Leggett, Louisos, Overington, Porter, Roberts, Schadler, Schoen, Sobonya,
Stevens, Sumner, Tansill, Trump, Wakim and Walters.
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue, Romine and
White, Gil.
So, a majority of the members present having voted in the affirmative, the motion
prevailed.
The bill, as amended by the House, and as further amended by the Senate, was then put
upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 20), and there
were--yeas 67, nays 25, absent and not voting 8, with the nays and absent and not voting being
as follows:
Nays: Anderson, Armstead, Blair, Border, Canterbury, Carmichael, Evans, Frich, Hall,
Hamilton, Lane, Leggett, Louisos, Overington, Porter, Roberts, Schadler, Schoen, Sobonya,
Stevens, Sumner, Tansill, Trump, Wakim and Walters.
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue, Romine and
White, Gil.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1003) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 21), and there were--yeas 93,
nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1003) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment,
with amendment, and the passage, as amended, to take effect from passage, of
S. B. 1004, Relating generally to workers' compensation.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by
the Clerk:
On page one hundred seventy-one of the House amendment, section twenty-one, line
fifteen, after the word "fines" by inserting the words "or remedies";
And,
On page one hundred seventy-one, section twenty-one, line seventeen, after the word
"exclusive" by inserting the word "civil".
On motion of Delegate Staton, the House of Delegates concurred in the Senate
amendments to the House amendments.
The bill, as amended by the House, and as further amended by the Senate, was then put
upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 22), and there
were--yeas 84, nays 6, excused from voting 3, absent and not voting 7, with the nays and absent
and not voting being as follows:
Nays: Armstead, Frederick, Overington, Porter, Stevens and Sumner.
Excused From Voting: Mr. Speaker, Mr. Kiss and Delegates Leach and Michael.
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue and Romine.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1002) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 23), and there were--yeas 90,
nays none, excused from voting 3, absent and not voting 7, with the excused from voting and
absent and not voting being as follows:
Excused From Voting: Mr. Speaker, Mr. Kiss, and Delegates Leach and Michael.
Absent and Not Voting: Ashley, Cann, Duke, Ellem, Fragale, Perdue and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 1004) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence for the
day were granted Delegates Ashley, Cann, Duke, Ellem, Fragale, Perdue and Romine.
At the request of Delegate Browning, and by unanimous consent, permission was granted
to the Joint Committee on Enrolled Bills, after it had examined, found truly enrolled and
presented to His Excellency, the Governor, for his action, bills passed but not presented to him
prior to adjournment of this session of the Legislature, to file its report with the Clerk and that
such reports be included in the final Journal of this session, and that communication from His
Excellency, the Governor, as to his final action on bills after adjournment of the session, also be
included in the Journal.
In accordance with the foregoing unanimous consent request, Delegate Browning filed a
report of the committee as follows:
February 7, 2005
S. B. 1001, Authorizing excess contribution received by inaugural committees be expended for Governor's Mansion,
S. B. 1002, Relating to reorganization of executive branch of state government,
S. B. 1003, Relating generally to ethical statndards of governmental offic ials and
employees,
And,
S. B. 1004, Relating generally to workers' compensation.
On motion of Delegate Staton, the Speaker was authorized to appoint a committee of three
to notify the Senate that the House of Delegates had completed the business of this extraordinary
session of the Legislature and was ready to adjourn sine die.
Whereupon,
The Speaker appointed as members of such committee the following:
Delegates Susman, Mahan, and Sumner.
On motion of Delegate Staton, the Speaker was then authorized to appoint a committee
of three on the part of the House of Delegates, to join with a similar committee on the part of the
Senate, to inform His Excellency, the Governor, that the Legislature was ready to adjourn sine
die.
Whereupon,
The Speaker appointed as members of such committee:
Delegates Perry, Pino and Sobonya.
Messages From The Senate
A message from the Senate, by
Senators Foster, Jenkins, and McKenzie, announced that the Senate had completed the
business of this extraordinary session and was ready to adjourn sine die.
Delegate Susman, from the Committee to notify the Senate of impending sine die
adjournment, announced that the committee had performed that duty.
Delegate Perry, from the Committee to inform His Excellency, the Governor, that the
Legislature had completed the business of this extraordinary session and was ready to adjourn
sine die, announced the performance of that function.
Messages From The Executive
Subsequent to the adjournment of the session, a communication was received from His
Excellency, the Governor, advising that on February 10, 2005, he approved Com. Sub. for S. B.
1003; on February 14, 2005, he approved A. B. 1001 and S. B. 1002; and on February 16, 2005,
he approved S. B. 1004.
There being no other business to come before the House, at 2:47 p.m., on motion of
Delegate Staton, the House adjourned sine die.