H. B. 3024
(By Delegate Walters)
[Introduced January 9, 2008; referred to the
Committee on Banking and Insurance then the Judiciary.]
A BILL to amend and reenact §23-5-1 of the Code of West Virginia,
1931, as amended, relating to improving claimants' access to
worker's compensation adjusters by requiring that all worker's
compensation adjusters employed by a private insurance carrier
shall be located within the geographic borders of West
Virginia.
Be it enacted by the Legislature of West Virginia:
That §23-5-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The Workers' Compensation Commission, the successor to the
commission, other private insurance carriers and self-insured employers may hear and determine all questions within their
jurisdiction.
All adjusters employed by a private insurance
carrier shall be located within the geographic borders of West
Virginia. In matters arising under articles 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. 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 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, the successor to the commission, other
private insurance carriers 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 and
self-insured employers, whichever is applicable shall be styled in
the name of the issuing entity. All appeals prosecuted from the
office of judges shall be in the name of the 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.
NOTE: The purpose of this bill is to improve claimants'
access to worker's compensation adjusters by requiring that all
worker's compensation adjusters employed by a private insurance
carrier be located within the geographic borders of West Virginia.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.