ENROLLED
H. B. 2802
(By Delegates Staton, Rowe, Huffman, Whitman,
Faircloth, L. White and Ashley)
[Passed April 8, 1993; in effect from passage.]
AN ACT to repeal section eighteen, article one, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to repeal section one-j,
article five, chapter twenty-three of said code; to amend
chapter twenty-one-a of said code by adding thereto a new
article, designated article three; to amend and reenact
section eight, article three, chapter twenty-two-a of said
code; to amend and reenact sections one, four, eleven,
thirteen and sixteen, article one, chapter twenty-three of
said code; to amend and reenact sections one-c, four, five,
five-a, five-b, fifteen and seventeen, article two of said
chapter; to further amend said article by adding thereto
three new sections, designated sections one-d, five-c and
five-d; to further amend said chapter by adding thereto a
new article, designated article two-b; to amend and reenact
sections one-e, three, three-a, three-c, six, eight-c,
sixteen and nineteen, article four of said chapter; to
further amend said article by adding thereto five new
sections, designated sections one-f, twenty-two,
twenty-three, twenty-four and twenty-five; and to amend and
reenact sections one, one-b, one-h and six, article five of
said chapter, all relating to workers' compensation
generally; creation of compensation programs performance
council; purpose; appointment of members; membership; terms;
chair; qualifications; selection by governor; compensation
and traveling expenses; insurance; meetings; quorum; powers
and duties; special rule-making authority; prohibition of
surface mining without a permit; permit requirements;
successor in interest; duration of permits; proof of
insurance; termination of permits; permit fees; commissioner
of the bureau of employment programs; compensation programs
performance council; official seal; legal services; rules;
office hours; records; confidentiality; exceptions;
depositions; investigations; rules of procedure and
evidence; persons authorized to appear in proceedings;
withholding of psychiatric and psychological reports and
providing summaries thereof; omission to subscribe to
workers' compensation fund or perform duty required by
commissioner; false testimony or certification; criminal
penalties; extraterritorial coverage; approval and change of
agreements; primary contractor liability; definitions;
applications and exceptions; certificates of good standing;
reimbursement and indemnification; termination of contracts;
effective date; collections efforts; classification of
industries; accounts; rate of premiums; prior notice of rate
changes; exceptions; application; payment of premiums;
payroll report; premiums; deposits; delinquency; default;
reinstatement; payment of benefits; notice to employees;
criminal provisions; penalties; collection of premiums from
defaulting employers; interest and penalties; civil
remedies; creation and enforcement of lien against employerand 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; legislative purpose;
application for settlement; reinstatement; amount of
settlement; when settlement void; notification of rights;
statute of limitations; effective date for new payments;
previous payments due not affected; uncollectible
receivables; write-offs; liabilities of successor employer;
waiver of payment by commissioner; assignment of predecessor
employer's premium rate to successor; employer right to
hearing; content of petition; appeal; occupational safety
and health activities; voluntary compliance; consultative
services; mandatory programs; safety committees;
requirements; rules; exceptions; premium rate credits;
qualified loss management program; loss management firms;
penalties; rules; temporary total disability benefits not to
be paid for periods of penitentiary or jail confinement;
denial of workers' compensation benefits for injuries or
disease incurred while incarcerated; certain psychiatric
injuries and diseases not compensable; 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 requirements;
consequences of failure to disclose; contract by employerwith hospital, physician, etc., prohibited; criminal
penalties for violation; payments to certain providers
prohibited; medical cost and care programs; payments;
interlocutory orders; wrongfully seeking payment for
services or supplies; criminal penalties; restitution;
suspension or termination of providers of health care;
classification of and criteria for disability benefits;
occupational pneumoconiosis board; reports and distribution
thereof; presumption; findings required of board; objection
to findings; procedure thereon; limitations on refilings;
consolidation of claims; commissioner's jurisdiction over
case continuous; modification of finding or order; time
limitation on awards; reimbursement of claimant for
expenses; reopening cases involving permanent total
disability; promulgation of rules; wrongfully seeking
compensation; criminal penalties; restitution; termination
of compensation; permanent disability evaluations;
limitations; notice; permanent total disability benefits;
reduction of disability benefits; social security benefits;
applications; release of information; credit or reduction of
benefits; application of section; severability; 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; permanent total disability benefits; reduction
of disability benefits for wages earned by claimant; notice
by commissioner of decision; procedures on claims;
objections and hearing; mediation; refusal to reopen claim;notice; objection; hearings on objections to commissioner's
decisions by office of administrative law judges; and
providing for the application of claims and cases of
self-insured employers.
Be it enacted by the Legislature of West Virginia:
That section eighteen, article one, chapter twenty-three of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended be repealed; that section one-j, article five, chapter
twenty-three of said code be repealed; that chapter twenty-one-a
of said code be amended by adding thereto a new article,
designated article three; that section eight, article three,
chapter twenty-two-a of said code be amended and reenacted; that
sections one, four, eleven, thirteen and sixteen, article one,
chapter twenty-three of said code be amended and reenacted; that
sections one-c, four, five, five-a, five-b, fifteen and
seventeen, article two of said chapter be amended and reenacted;
that said article be further amended by adding thereto three new
sections, designated sections one-d, five-c and five-d; that said
chapter be further amended by adding thereto a new article,
designated article two-b; that sections one-e, three, three-a,
three-c, six, eight-c, sixteen and nineteen, article four of said
chapter be amended and reenacted; that said article be further
amended by adding thereto five new sections, designated sections
one-f, twenty-two, twenty-three, twenty-four and twenty-five; and
that sections one, one-b, one-h and six, article five of said
chapter be amended and reenacted, all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 3. COMPENSATION PROGRAMS PERFORMANCE COUNCIL.
§21A-3-1. Creation of compensation programs performance
council; purpose.
There is hereby created within the bureau of employment
programs a "compensation programs performance council". The
purpose of said council shall be to ensure the effective,
efficient and financially stable operation of the unemployment
compensation system and the workers' compensation system of the
state of West Virginia.
§21A-3-2. Appointment of members.
The members of the council shall be appointed by the
governor by and with the advice and consent of the Senate.
§21A-3-3. Membership; terms; chair.
The compensation programs performance council shall consist
of nine members: Four representing the interests of employees;
four representing the interests of employers; and the
commissioner of the bureau of employment programs.
The term of each member except the commissioner shall be for
six years. The term of the commissioner shall continue for that
period in which he or she holds that office.
The terms of all the initially appointed members of the
council shall begin on the first day of July, one thousand nine
hundred ninety-three.
Of the persons initially appointed, four members, including
two members of each of the two representative groups, shall be
designated to serve for terms of two years each, two members,
including one member of each of the two representative groups,
shall be designated to serve for terms of four years each, and
two members, including one member of each of the tworepresentative groups shall be designated to serve for terms of
six years each. As these appointments expire, subsequent
appointments shall be for six-year terms.
The commissioner shall serve as chair of the council and
shall be entitled to vote on all matters. The council shall
elect from its members a vice chair.
§21A-3-4. Qualifications; selection by governor.
Members of the council shall be selected with special
reference to their ability and fitness to effectuate the purposes
of this chapter and chapter twenty-three of this code.
In appointing members of this council to represent the
interests of employees, the governor shall select members as
follows:
One member shall be appointed from a list of at least three
names submitted to the governor by the united mine workers of
America;
Two members shall be appointed from a list of at least six
names submitted to the governor by the West Virginia labor
federation, with one representing construction trades and one
representing industrial workers; and
One member selected by the governor to represent the general
interests of employees covered under the provisions of this
chapter and chapter twenty-three of this code.
In appointing members of this council to represent the
interests of employers, the governor shall select members as
follows:
One member shall be appointed from a list of at least three
names submitted to the governor by the West Virginia coalindustry;
One member shall be appointed from a list of at least three
names submitted to the governor by the West Virginia
manufacturers association;
One member shall be appointed from a list of at least three
names submitted to the governor by the West Virginia chamber of
commerce; and
One member selected by the governor to represent the general
interests of employers covered under the provisions of this
chapter and chapter twenty-three of this code.
The governor shall ensure that employer representation
includes a representative of small businesses employing fifty or
less employees on a regular basis.
§21A-3-5. Compensation and traveling expenses; insurance.
Members of the council shall receive reasonable compensation
for each day actually served in attendance at meetings of the
council and such traveling expenses as are incurred in the
performance of his or her duties. Payment for traveling expenses
shall be made consistent with state law.
Each member of this council shall be provided appropriate
liability insurance, without additional premium, by the state
board of risk and insurance management established pursuant to
article twelve, chapter twenty-nine of this code.
§21A-3-6. Meetings; quorum.
The council shall hold meetings at any time at the call of
the commissioner. The commissioner shall call a meeting whenever
three of the other members of the council request the
commissioner to do so. The exact date and time of each meetingshall be determined by the commissioner.
A majority of the members of the council shall constitute a
quorum for the conduct of council business and, except as stated
in subdivision (m), section seven of this article, all issues
shall be resolved by a majority vote of the total membership.
§21A-3-7. Powers and duties; special rule-making authority.
The council shall have the following powers and duties:
(a) Assist the governor and the commissioner in the
development of overall administrative policy for the unemployment
compensation and workers' compensation systems of the state.
(b) Recommend legislation and establish regulations designed
to ensure the effective administration and financial viability of
the unemployment compensation system and the workers'
compensation system of West Virginia.
(c) Review and approve, reject or modify rules and
regulations that are proposed or promulgated by the commissioner
for operation of the workers' compensation system before the
filing of the rules and regulations with the secretary of state.
This provision is applicable to any instance under chapter
twenty-three of this code which authorizes the commissioner to
promulgate rules and regulations. Notwithstanding any provision
in this code to the contrary, including sections one and two,
article three, and section three, article seven, both of chapter
twenty-nine of said code, any rules and regulations adopted
pursuant to this section which are applicable to the provisions
of chapter twenty-three of this code shall not be subject to
sections nine through sixteen, all of article three, chapter
twenty-nine-a of this code. The commissioner and thecompensation programs performance council shall follow the
remaining provisions of said article for giving notice to the
public of their actions and the holding of hearings or receiving
of comments on the rules. No later amendment to this code shall
have precedence over this section unless such later amendment
specifically provides to the contrary.
(d) In accordance with the laws and regulations of West
Virginia and the United States government, establish and monitor
performance measurements to ensure the timeliness and accuracy of
activities performed under the unemployment compensation laws and
the workers' compensation laws.
(e) Have the final right of approval of all base rates for
employers covered by the workers' compensation law as recommended
by the commissioner.
(f) Advocate sufficient administrative resources to
effectively operate the unemployment compensation system and the
workers' compensation system of West Virginia.
(g) Approve the designation of health care providers to make
decisions regarding appropriateness of medical services pursuant
to subsection (d), section one, article five, chapter
twenty-three of this code.
(h) Ensure that the unemployment compensation system and the
workers' compensation system of West Virginia develop and pursue
an effective program of outreach and communication to employers,
workers and others involved in these programs.
(i) Analyze opportunities to affect efficiencies and
improvements for employers and workers by developing common
definitions, interrelated systems and other internal operationalimprovements, including long-range planning for improvements.
(j) Develop programs, linkages in the public sector and the
private sector, and information materials designed to promote the
early return to work of individuals receiving unemployment
compensation benefits or workers' compensation benefits.
(k) Examine the current design and report recommendations to
the governor and the Legislature regarding the second injury
reserve of the surplus fund and the financial viability of the
state's workers' compensation system.
(l) Consider such other matters regarding the unemployment
compensation system or the workers' compensation system as the
commissioner or any appointed member of the council may desire.
(m) On or before the first day of September, one thousand
nine hundred ninety-three, establish vocational standards to be
considered in making decisions on permanent total disability
awards under subdivision (n), section six, article four, chapter
twenty-three of this code:
Provided,
That the compensation
programs performance council is expressly authorized to establish
this standard irrespective of court decisions interpreting any
previous enactment of said subdivision:
Provided, however,
That
adoption of said vocational standard shall require an affirmative
vote of two thirds of the members of said compensation programs
performance council.
(n) Adopt criteria for the determination and standards for
the payment of attorneys' fees pursuant to subdivision (2),
subsection (c), section sixteen, article four, chapter
twenty-three of this code.
CHAPTER 22A. MINES AND MINERALS.
ARTICLE 3. WEST VIRGINIA SURFACE COAL MINING AND RECLAMATION
ACT.
§22A-3-8. Prohibition of surface mining without a permit;
permit requirements; successor in interest; duration
of permits; proof of insurance; termination of
permits; permit fees.
No person may engage in surface-mining operations unless
such person has first obtained a permit from the commissioner in
accordance with the following:
(a) Within two months after the secretary of the interior
approves a permanent state program for West Virginia, all
surface-mining operators shall file an application for a permit
or modification of a valid existing permit or underground opening
approval relating to those lands to be mined eight months after
that approval.
(b) No later than eight months after the secretary's
approval of a permanent state program for West Virginia, no
person may engage in or carry out, on lands within this state,
any surface-mining operations unless such person has first
obtained a permit from the commissioner:
Provided,
That those
persons conducting such operations under a permit or underground
opening approval issued in accordance with section 502 (c) of
Public Law 95-87, and in compliance therewith, may conduct such
operations beyond such period if an application for a permit or
modification of a valid existing permit or underground opening
approval was filed within two months after the secretary's
approval, and the administrative decision pertaining to the
granting or denying of such permit has not been made by thecommissioner.
(c) All permits issued pursuant to the requirements of this
article shall be issued for a term not to exceed five years:
Provided,
That if the applicant demonstrates that a specified
longer term is reasonably needed to allow the applicant to obtain
necessary financing for equipment and the opening of the
operation, and if the application is full and complete for such
specified longer term, the commissioner may extend a permit for
such longer term:
Provided, however,
That subject to the prior
approval of the commissioner, with such approval being subject to
the provisions of subsection (c), section eighteen of this
article, a successor in interest to a permittee who applies for
a new permit, or transfer of a permit, within thirty days of
succeeding to such interest, and who is able to obtain the bond
coverage of the original permittee, may continue surface-mining
and reclamation operations according to the approved mining and
reclamation plan of the original permittee until such successor's
permit application or application for transfer is granted or
denied.
(d) Proof of insurance shall be required on an annual basis.
(e) A permit shall terminate if the permittee has not
commenced the surface-mining operations covered by such permit
within three years of the date the permit was issued:
Provided,
That the commissioner may grant reasonable extensions of time
upon a timely showing that such extensions are necessary by
reason of litigation precluding such commencement, or threatening
substantial economic loss to the permittee, or by reason of
conditions beyond the control and without the fault or negligenceof the permittee:
Provided, however,
That with respect to coal
to be mined for use in a synthetic fuel facility or specific
major electric generating facility, the permittee shall be deemed
to have commenced surface-mining operations at such time as the
construction of the synthetic fuel or generating facility is
initiated.
(f) Each application for a new surface-mining permit filed
pursuant to this article shall be accompanied by a fee of one
thousand dollars. All permit fees and renewal fees provided for
in this section or elsewhere in this article shall be collected
by the commissioner and deposited with the treasurer of the state
of West Virginia to the credit of the operating permit fees fund
and shall be used, upon requisition of the commissioner, for the
administration of this article.
(g) Prior to the issuance of any permit, the commissioner of
energy shall ascertain from the commissioner of labor compliance
with section fourteen, article five, chapter twenty-one of this
code. Upon issuance of the permit, the commissioner of energy
shall forward a copy to the commissioner of labor, who shall
assure continued compliance under such permit.
(h) Prior to the issuance of any permit, the director of the
division of environmental protection shall ascertain from the
commissioner of the bureau of employment programs whether the
applicant is in compliance with the provisions of section five,
article two, chapter twenty-three of this code. If the applicant
is not in compliance, then the permit shall not be issued until
the applicant returns to compliance:
Provided,
That in all such
inquiries the commissioner of the bureau of employment programsshall make response to the division of environmental protection
within fifteen calendar days, otherwise failure to respond timely
shall be considered to indicate the applicant is in compliance
and such failure will not be used to preclude issuance of the
permit.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Commissioner of the bureau of employment programs;
compensation programs performance council; official
seal; legal services; rules.
The commissioner of the bureau of employment programs
appointed under the provisions of section one, article two,
chapter twenty-one-a of this code, has the sole responsibility
for the administration of this chapter except for such matters as
are entrusted to the compensation programs performance council
created pursuant to section one, article three, chapter
twenty-one-a of this code. In the administration of this
chapter, the commissioner shall exercise all the powers and
duties described in this chapter and in article two of said
chapter. The commissioner is authorized to promulgate rules and
regulations to implement the provisions of articles one through
five of this chapter. The commissioner shall have an official
seal for the authentication of orders and proceedings, upon which
seal shall be engraved the words "West Virginia Commissioner of
Employment Programs" and such other design as the commissioner
may prescribe. The courts in this state shall take judicial
notice of the seal of the commissioner and in all cases copies of
orders, proceedings or records in the office of the West Virginiacommissioner of employment programs shall be equal to the
original in evidence.
The attorney general shall perform all legal services
required by the commissioner under the provisions of this
chapter:
Provided,
That in any case in which an application for
review is prosecuted from any final decision of the workers'
compensation appeal board to the supreme court of appeals, as
provided by section four, article five of this chapter, or in any
court proceeding before the workers' compensation appeal board,
or in any proceedings before the office of judges, in which such
representation shall appear to the commissioner to be desirable,
the commissioner may designate a regular employee of this office,
qualified to practice before such court to represent the
commissioner upon such appeal or proceeding, and in no case shall
the person so appearing for the commissioner before the court
receive remuneration therefor other than such person's regular
salary.
§23-1-4. Office hours; records; confidentiality; exceptions.
(a) The offices of the commissioner shall be open for the
transaction of business between the hours of eight-thirty o'clock
a.m., and five o'clock p.m., of each and every day, excepting
Saturdays, Sundays and legal holidays, and be open upon such
additional days and at such additional times as the commissioner
may elect, and be in charge of his or her secretary or some other
competent person.
(b) Except as expressly provided for in this subsection,
information obtained from employers and claimants pursuant to
this chapter for the purposes of its administration shall not besubject to the provisions of chapter twenty-nine-b of this code
unless such provisions are hereafter specifically made applicable
in whole or in part. Such information as may be reasonably
necessary may be released in formal orders or opinions of any
tribunal or court which is presented with an issue arising under
this chapter as well as in the presentations of the parties
before any such tribunal or court. Similarly, claimants or other
interested parties to an issue arising under this chapter may,
upon request, obtain information from the division's records to
the extent necessary for the proper presentation or defense of a
claim or other matter. Information may be released to any
requestor if all identifying information has first been
eliminated from the records. Nothing in this subsection shall
prevent the release of information to another agency of the state
or of the federal government for the legitimate purposes of those
agencies:
Provided,
That any such agency shall guarantee the
confidentiality of the information so provided to the fullest
extent possible in keeping with its own statutory and regulatory
mandates. Nothing in this section shall prevent the commissioner
from complying with any subpoena duces tecum:
Provided, however,
That the issuing tribunal or court shall take such actions as may
be proper to maintain the confidentiality of the information.
The commissioner may release, pursuant to a proper request
under the provisions of chapter twenty-nine-b of this code, the
following information:
(1) The base premium rate for a specific employer;
(2) Whether or not a specific employer has obtained coverage
under the provisions of this chapter;
(3) Whether or not a specific employer is in good standing
or is delinquent or in default according to the commissioner's
records and the time periods thereof; and
(4) If a specific employer is delinquent or in default, what
the payments due the commissioner are and what the components of
that payment are including the time periods affected.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under this
chapter, the commissioner may cause depositions of witnesses
residing within or without the state to be taken in the manner
prescribed by law for like depositions in the circuit court, but
such depositions shall be upon reasonable notice to claimant and
employer or other affected persons or their respective attorneys.
The commissioner shall designate the person to represent him or
her for the taking of any such deposition.
(b) The commissioner shall also have discretion to accept
and consider depositions taken within or without the state by
either the claimant or employer, provided due and reasonable
notice of the taking of such depositions was given to the other
party, claimant or employer, as the case may be, or his or her
attorney:
Provided,
That the commissioner, upon due notice both
to the employer and claimant, shall have authority to refuse or
permit the taking of such depositions or to reject such
depositions after the taking thereof, if in his or her opinion
they were taken at such place or under such circumstances as
imposed an undue burden or hardship upon the opposite party, and
the commissioner's discretion to accept, refuse to approve, or
reject such depositions shall be binding in the absence of abuseof such discretion.
§23-1-13. Rules of procedure and evidence; persons authorized to
appear in proceedings; withholding of psychiatric and
psychological reports and providing summaries thereof.
(a) The commissioner shall adopt reasonable and proper rules
of procedure, regulate and provide for the kind and character of
notices, and the service thereof, in cases of accident and injury
to employees, the nature and extent of the proofs and evidence,
the method of taking and furnishing the same to establish the
rights to benefits or compensation from the fund hereinafter
provided for, or directly from employers as hereinafter provided,
as the case may require, and the method of making investigations,
physical examinations and inspections, and prescribe the time
within which adjudications and awards shall be made.
(b) At hearings and other proceedings before the
commissioner or before the duly authorized representative of the
commissioner, an employer who is a natural person may appear, and
a claimant may appear, only as follows:
(1) By an attorney duly licensed and admitted to the
practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a representative from a labor organization who has
been recognized by the commissioner as being qualified torepresent a claimant or who is an individual otherwise found to
be qualified by the commissioner to act as a representative.
Such representative shall participate in the presentation of
facts, figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such facts and
figures; or
(4) Pro se.
(c) At hearings and other proceedings before the
commissioner or before the duly authorized representative of the
commissioner, an employer who is not a natural person may appear
only as follows:
(1) By an attorney duly licensed and admitted to the
practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a member of the board of directors of a corporation
or by an officer of the corporation, for purposes of representing
the interest of the corporation in the presentation of facts,
figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such facts and
figures; or
(4) By a representative from an employer service company who
has been recognized by the commissioner as being qualified to
represent an employer or who is an individual otherwise found tobe qualified by the commissioner to act as a representative.
Such representative shall participate in the presentation of
facts, figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such facts and
figures.
(d) The commissioner or his or her representative may
require an individual appearing on behalf of a natural person or
corporation to produce satisfactory evidence that he or she is
properly qualified and authorized to so appear pursuant to this
section.
(e) Subsections (b), (c) and (d) of this section shall not
be construed as being applicable to proceedings before the office
of judges pursuant to the provisions of article five of this
chapter.
(f) At the direction of a treating or evaluating
psychiatrist or clinical doctoral level psychologist, a
psychiatric or psychological report concerning a claimant who is
receiving treatment or is being evaluated for psychiatric or
psychological problems may be withheld from the claimant. In
that event, a summary of the report shall be compiled by the
reporting psychiatrist or clinical doctoral level psychologist
which summary shall be provided to the claimant upon his or her
request. Any representative or attorney of the claimant must
agree to provide such a claimant with only the summary before the
full report shall be provided to the representative or attorney
for his or her use in preparing the claimant's case. Such a
report shall only be withheld from the claimant in those
instances where the treating or evaluating psychiatrist orclinical 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.
§23-1-16. Omission to subscribe to workers' compensation fund
or to perform duty required by commissioner; false
testimony or certification; criminal penalties.
Any person, firm or corporation which is required by the
provisions of this chapter to subscribe to the workers'
compensation fund, and which knowingly fails to subscribe
thereto, or which knowingly and willfully fails to make any
report or perform any other act or duty required by the
commissioner within the time specified by the commissioner, shall
be guilty of a felony, and, upon conviction thereof, shall be
fined not less than one thousand dollars and not more than ten
thousand dollars. Any person or firm, or the officer of any
corporation, who knowingly makes a false report or statement
under oath, affidavit or certification respecting any information
required by the commissioner, or who shall knowingly testify
falsely in any proceeding before the commissioner or the office
of judges, shall be considered guilty of a felony, and, upon
conviction thereof, shall be fined not less than one thousand
dollars and not more than ten thousand dollars or confined in the
penitentiary for not more than three years, or both.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1c. Extraterritorial coverage; approval and change of
agreements.
(a) Whenever, with respect to an employee of an employer who
is a subscriber in good standing to the workers' compensation
fund or an employer who has elected to pay compensation directly,
as provided in section nine of this article, there is a
possibility of conflict with respect to the application of
workers' compensation laws because the contract of employment is
entered into and all or some portion of the work is performed or
is to be performed in a state or states other than this state,
the employer and the employee may agree to be bound by the laws
of this state or by the laws of such other state in which all or
some portion of the work of the employee is to be performed:
Provided,
That the commissioner shall have the authority to
review and accept or reject any such agreement. Any such review
shall be conducted in keeping with the commissioner's fiduciary
obligations to the workers' compensation fund which may include,
among other things, the nexus of the employer and the employee to
the state:
Provided, however,
That nothing in this section shall
be construed so as to require such an agreement in those
instances where subdivision (3), subsection (b), section one of
this article or subdivision (1), subsection (a), section one-a of
this article are applicable. Such agreement shall be in writing
and filed with the commissioner within ten days after execution
thereof but shall not become effective until approved by the
commissioner and shall, thereafter, remain in effect until
terminated or modified by agreement of the parties similarly
filed or by order of the commissioner. If the parties agree to
be bound by the laws of this state, an employee injured within
the terms and provisions of this chapter shall be entitled tobenefits under this chapter regardless of the situs of the injury
or exposure to occupational pneumoconiosis or other occupational
disease, and the rights of the employee and his or her dependents
under the laws of this state shall be the exclusive remedy
against the employer on account of injury, disease or death in
the course of and as a result of the employment.
(b) If the parties agree to be bound by the laws of another
state and the employer has complied with the laws of that state,
the rights of the employee and his or her dependents under the
laws of that state shall be the exclusive remedy against the
employer on account of injury, disease or death in the course of
and as a result of the employment without regard to the situs of
the injury or exposure to occupational pneumoconiosis or other
occupational disease.
(c) If the employee is a resident of a state other than this
state and is subject to the terms and provisions of the workers'
compensation law or similar laws of a state other than this
state, such employee and his dependents shall not be entitled to
the benefits payable under this chapter on account of injury,
disease or death in the course of and as a result of employment
temporarily within this state, and the rights of such employee
and his dependents under the laws of such other state shall be
the exclusive remedy against the employer on account of such
injury, disease or death.
(d) If any employee or his or her dependents be awarded
workers' compensation benefits or recover damages from the
employer under the laws of another state for an injury received
in the course of and resulting from the employment, the amount soawarded or recovered, whether paid or to be paid in future
installments, shall be credited against the amount of any
benefits payable under this chapter for the same injury.
§23-2-1d. Primary contractor liability; definitions;
applications and exceptions; certificates of good
standing; reimbursement and indemnification;
termination of contracts; effective date; collections
efforts.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article shall
include any primary contractor who regularly subcontracts with
other employers for the performance of any work arising from or
as a result of the primary contractor's own contract:
Provided,
That a subcontractor shall not include one providing goods rather
than services. In the event that such a subcontracting employer
defaults on its obligations to make payments to the commissioner,
then such primary contractor shall be liable for such payments.
Notwithstanding the foregoing, nothing contained in this section
shall extend or except to such primary contractor or
subcontractors the provisions of sections six, six-a or eight of
this article. This section is applicable only with regards to
subcontractors with whom the primary contractor has a contract.
It is not applicable to the primary contractor with regard to
sub-subcontractors. However, a subcontractor for the purposes of
a contract with the primary contractor can itself become a
primary contractor with regard to other employers with whom it
subcontracts.
(b) A primary contractor may avoid initial liability undersubsection (a) of this section if it obtains from the
commissioner, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor
is in good standing with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor shall
result in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premiums, premium
deposits, interest and other penalties arising during the life of
the contract or due to work performed in furtherance of the
contract:
Provided,
That the commissioner shall be entitled to
collect only once for the amount of premiums, premium deposits
and interest due to the default, but the commissioner may impose
other penalties on the primary contractor or on the
subcontractor, or both.
(2) In order to continue avoiding liability under this
section, the primary contractor shall request that the
commissioner of the bureau of employment programs inform the
primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commissioner shall then notify the primary contractor of the
default by placing a notice in the first class United States
mail, postage prepaid, and addressed to the primary contractor at
the address furnished to the commissioner by the primary
contractor. Such mailing shall be good and sufficient notice to
the primary contractor of the subcontractor's default. However,
the primary contractor shall not become liable under this section
until the first day of the calendar quarter following thecalendar quarter in which the notice is given and then such
liability shall only be for that following calendar quarter and
thereafter and only if the subcontract has not been terminated:
Provided,
That the commissioner shall be entitled to collect
only once for the amount of premiums, premium deposits and
interest due to the default, but the commissioner may impose
other penalties on the primary contractor or on the
subcontractor, or both.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided for in this
section, such default or failure shall be good and sufficient
cause for a primary contractor to hold the subcontractor
responsible and to seek reimbursement or indemnification for any
amounts paid on behalf of the subcontractor to avoid or cure a
workers' compensation default, plus related costs including
reasonable attorneys' fees, and to terminate its subcontract with
the subcontractor notwithstanding any provision to the contrary
in the contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after the first
day of January, one thousand nine hundred ninety-four.
(e) The commissioner may take any action authorized by
section five-a of this article in furtherance of his or her
efforts to collect amounts due from the primary contractor under
this section.
§23-2-4. Classification of industries; accounts; rate of
premiums; prior notice of rate changes; exceptions.
The commissioner shall distribute into groups or classes the
employments subject to this chapter, in accordance with the
nature of the business and the degree of hazard incident thereto.
And the commissioner shall have power, in like manner, to
reclassify such industries into groups or classes at any time,
and to create additional groups or classes. The commissioner may
make necessary expenditures to obtain statistical and other
information to establish the classes provided for in this
section.
The commissioner shall keep an accurate account of all money
or moneys paid or credited to the compensation fund, and of the
liability incurred and disbursements made against same; and an
accurate account of all money or moneys received from each
individual subscriber, and of the liability incurred and
disbursements made on account of injuries and death of the
employees of each subscriber, and of the receipts and incurred
liability of each group or class.
In compensable fatal and total permanent disability cases,
other than occupational pneumoconiosis, the amount charged
against the employer's account shall be such sum as is estimated
to be the average incurred loss of such cases to the fund. The
amount charged against the employer's account in compensable
occupational pneumoconiosis claims for total permanent disability
or for death shall be such sum as is estimated to be the average
incurred loss of such occupational pneumoconiosis cases to the
fund.
It shall be the duty of the commissioner and the
compensation programs performance council to fix and maintain thelowest possible rates of premiums consistent with the maintenance
of a solvent workers' compensation fund and the creation and
maintenance of a reasonable surplus in each group after providing
for the payment to maturity of all liability incurred by reason
of injury or death to employees entitled to benefits under the
provisions of this chapter. A readjustment of rates shall be
made yearly on the first day of July, or at any time the same may
be necessary. At such times as the commissioner elects to
readjust the base rates for the various industrial
classifications, the commissioner shall file a schedule of the
readjusted base rates for each industrial class with the office
of the secretary of state for publication in the state register
pursuant to article two, chapter twenty-nine-a of this code.
Such schedule shall be so filed at least thirty days prior to the
first day of the quarter to which an adjustment of rates is to be
applicable. At such times as the commissioner elects to readjust
the individual merit rates for the subscribers to the fund, the
commissioner shall provide notice of such merit rate adjustments
to the affected employers at least thirty days prior to the first
day of the quarter to which an adjustment of rates is to be
applicable. The commissioner shall not retroactively increase or
decrease rates except in instances of fraud, mistake or reliance
upon incorrect information furnished by the employer. The
determination of the lowest possible rates of premiums within the
meaning hereof and of the existence of any surplus or deficit in
the fund shall be predicated solely upon the experience and
statistical data compiled from the records and files in the
commissioner's office under this and prior workers' compensationlaws of this state for the period from the first day of June, one
thousand nine hundred thirteen, to the nearest practicable date
prior to such adjustment:
Provided,
That any expected future
return, in the nature of interest or income from invested funds,
shall be predicated upon the average realization from investments
to the credit of the compensation fund for the two years next
preceding. Any reserves set up for future liabilities and any
commutation of benefits shall likewise be predicated solely upon
prior experience under this and preceding workers' compensation
laws and upon expected realization from investments determined by
the respective past periods, as aforesaid.
The commissioner and the compensation programs performance
council may fix a rate of premiums applicable alike to all
subscribers forming a group or class, and such rates shall be
determined from the record of such group or class shown upon the
books of the commissioner:
Provided,
That if any group has a
sufficient number of employers with considerable difference in
their degrees of hazard, the commissioner may fix a rate for each
subscriber of such group, such rate to be based upon the
subscriber's record on the books of the commissioner for a period
not to exceed three years ending the thirty-first day of December
of the year preceding the year in which the rate is to be
effective; and the liability part of such record shall include
such cases as have been acted upon by the commissioner during
such three-year period, irrespective of the date the injury was
received; and any subscriber in a group so rated, whose record
for such period cannot be obtained, shall be given a rate based
upon the subscriber's record for any part of such period as maybe deemed just and equitable by the commissioner; and the
commissioner shall have authority to fix a reasonable minimum and
maximum for any group to which this individual method of rating
is applied, and to add to the rate determined from the
subscriber's record such amount as is necessary to liquidate any
deficit in the schedule as to create a reasonable surplus.
It shall be the duty of the commissioner, when the
commissioner changes any rate, to notify every employer affected
thereby of that fact and of the new rate and when the same takes
effect. It shall also be the commissioner's duty to furnish to
each employer yearly, or more often if requested by the employer,
a statement giving the name of each of the employer's employees
who were paid for injury and the amounts so paid during the
period covered by the statement.
§23-2-5. Application; payment of premiums; payroll report;
premiums; deposits; delinquency; default;
reinstatement; payment of benefits; notice to
employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation
fund, each employer who is required to subscribe to the fund or
who elects to subscribe to the fund shall pay premiums calculated
as a percentage of the employer's payroll at the rate determined
by the commissioner and then in effect. At the time each
employer subscribes to the fund, the application required by the
commissioner shall be filed and a premium deposit equal to the
first quarter's estimated premium payment shall be remitted. The
minimum quarterly premium to be paid by any employer shall be ten
dollars.
(1) Thereafter, premiums shall be paid quarterly on or
before the last day of the month following the end of the
quarter, and shall be the prescribed percentage of the total
earnings of all employees during the preceding quarter.
(2) At the time each premium is paid, every subscribing
employer shall make a payroll report to the commissioner for the
preceding quarter. The report shall be on the form or forms
prescribed by the commissioner, and shall contain all information
required by the commissioner.
(3) After subscribing to the fund, each employer shall remit
with each payroll report and premium payment an amount calculated
to be sufficient to maintain a premium deposit equal to the
previous quarter's premium payment:
Provided,
That the
commissioner may reduce the amount of the premium deposit
required from seasonal employers for those quarters during which
employment is significantly reduced. The premium deposit shall
be credited to the employer's account on the books of the
commissioner and used to pay premiums and any other sums due the
fund when an employer becomes delinquent.
(4) All premiums and premium deposits required to be paid by
this chapter shall be paid by the employers to the commissioner,
who shall maintain record of all sums so received. On and after
the first day of October, one thousand nine hundred ninety-one,
any such sum mailed to the commissioner shall be deemed to be
received on the date the envelope transmitting it is postmarked
by the United States postal service. All sums received by the
commissioner shall be deposited in the state treasury to the
credit of the workers' compensation division in the manner nowprescribed by law.
(5) The commissioner may encourage employer efforts to
create and maintain safe workplaces, to encourage loss prevention
programs, and to encourage employer provided wellness programs,
through the normal operation of the experience rating formula,
seminars and other public presentations, the development of model
safety programs and other initiatives as may be determined by the
commissioner.
(b) Failure of an employer to timely pay premium, to timely
file a payroll report, or to maintain an adequate premium
deposit, shall cause the employer's account to become delinquent.
No employer will be declared delinquent or be assessed any
penalty therefor if the commissioner determines that such
delinquency has been caused by delays in the administration of
the fund. The commissioner shall, in writing, within sixty days
of the end of each quarter notify all delinquent employers of
their failure to timely pay premiums, to timely file a payroll
report, or to maintain an adequate premium deposit. The
notification shall demand the filing of the delinquent payroll
report and payment of delinquent premiums, and/or payment of an
amount sufficient to maintain the premium deposit, before the end
of the third month following the end of the preceding quarter.
The notification shall also require payment of interest on the
delinquent premium payment and/or premium deposit pursuant to
section thirteen of this article.
(c) Whenever the commissioner notifies an employer of the
delinquent status of his or her account, the notification shall
explain the legal consequence of subsequent default by employersrequired to subscribe to the fund, and the effects of termination
of any electing employer's account.
(d) Failure by the employer, who is required to subscribe to
the fund and who fails to resolve his or her delinquency within
the prescribed period, shall place the account in default and
shall deprive such defaulting employer of the benefits and
protection afforded by this chapter, including section six of
this article, and he or she shall be liable as provided in
section eight of this article. The defaulting employer's
liability under said shall be retroactive to twelve o'clock p.m.,
of the last day of the month following the end of the quarter for
which the delinquency occurs. The commissioner shall notify the
defaulting employer of the method by which the employer may be
reinstated with the fund. The commissioner shall also notify the
employees of such employer by written notice as hereinafter
provided for in this section.
(e) Failure by any employer, who voluntarily elects to
subscribe, to resolve his or her delinquency within the
prescribed period shall automatically terminate the election of
such employer to pay into the workers' compensation fund and
shall deprive such delinquent employer of the benefits and
protection afforded by this chapter, including section six of
this article, and he or she shall be liable as provided in
section eight of this article. The defaulting employer's
liability under said section shall be retroactive to twelve
o'clock p.m., of the last day of the month following the end of
the quarter for which the delinquency occurs.
(f) (1) Except as provided for in subdivision (3) of thissubsection, 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 whose account is terminated prior to
the effective date of this section or whose account is
subsequently terminated, shall be restored immediately to the
benefits and protection of this chapter only upon the filing of
all delinquent payroll and other reports required by the
commissioner and payment into the fund of all unpaid premiums, an
adequate premium deposit, and accrued interest. Interest shall
be calculated as provided for by section thirteen of this
article. In addition, for every defaulted or terminated employer
whose default or termination lasts for two consecutive quarters
or who has defaulted or been terminated for two quarters out of
the preceding eight consecutive quarters, then when any such
employer's application for reinstatement is filed or upon any
such employer's restoration to the benefits and protection of
this chapter, for the next eight quarters, including the quarter
in which such restoration occurs, or when any such employer's
application for reinstatement is filed, the employer shall pay
premiums to the commissioner at a penalty rate. The applicable
penalty premium rate shall be determined by first calculating the
employer's premium under the provisions of section four of this
article, but including any applicable experience modification,
and then multiplying that premium by one hundred ten percent.
The commissioner shall not have the authority to waive
either accrued interest or the imposition of the penalty premium
rate. Any employer whose default or termination does not lastfor two consecutive quarters or who has not been in default two
quarters out of the preceding eight consecutive quarters shall
not have a penalty premium rate imposed. The provisions of
section seventeen of this article apply to any action or decision
of the commissioner under this section. For purposes of section
four of this article, the extra ten percent of premium
constituting the penalty shall not be used in determining any
entitlement to experience modification of the employer's premium
rate for future years.
(2) The commissioner shall have the authority to restore a
defaulted or terminated employer under a reinstatement agreement.
Such reinstatement agreement shall require the payment in full of
all premiums, premium deposits, past accrued interest and future
interest calculated pursuant to the provisions of section
thirteen of this article. The reinstatement agreement shall not
permit any modification or waiver of the penalty premium rate
provided for in subdivision (1) of this subsection.
Notwithstanding the filing of a reinstatement application or the
entering into of a reinstatement agreement, the commissioner is
authorized to file a lien against the employer as provided for by
section five-a of this article. In addition, entry into a
repayment agreement is discretionary with the commissioner. Such
discretion shall be exercised in keeping with the commissioner's
fiduciary obligations to the workers' compensation fund. Should
the commissioner decline to enter into a repayment agreement and
should the employer not comply with the provisions of subdivision
(1) of this subsection, then the commissioner may proceed with
any of the collection efforts provided for by section five-a ofthis article or as otherwise provided for by this code.
Applications for reinstatement shall: (A) Be made upon forms
prescribed by the commissioner; (B) include a report of the gross
payroll of the employer during the entire period of delinquency
and default, which payroll information shall be certified by the
employer or its authorized agent; and (C) include a payment equal
to one half of one percent of the gross payroll during the period
of delinquency and default but not to exceed the amount of the
entire liability due and owing for the period of delinquency and
default. An employer who applies for reinstatement shall be
entitled to the benefits and protection of this chapter on the
day the application is received by the commissioner:
Provided,
That if the commissioner reinstates an employer subject to the
terms of a repayment agreement, the subsequent failure of the
employer to make scheduled payments or to pay accrued or future
interest in accordance with the repayment agreement or to timely
file current premiums within the month following the end of the
quarter for which the report and payment are due, or to otherwise
maintain its account in good standing or, if the repayment
agreement does not require earlier restoration of the premium
deposit, to restore the premium deposit to the required amount by
the end of the repayment period shall cause the reinstatement
application or the repayment agreement, or both, to be null, void
and of no effect, and the employer shall be denied the benefits
and protection of this chapter effective from the date that such
employer's account originally became delinquent.
(3) Any employer who fails to maintain his or her account in
good standing with regard to subsequent premiums and premiumdeposits prior to the final resolution of an application for
reinstatement as provided for in subdivision (1) of this
subsection shall cause the reinstatement application to be null,
void and of no effect, and the employer shall be denied the
benefits and protection of this chapter effective from the date
that such employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a repayment agreement, the commissioner may then
make and continue with any of the collection efforts provided for
by this chapter or elsewhere in this code even if the employer
files another reinstatement application.
(g) No employee of an employer required by this chapter to
subscribe to the workers' compensation fund shall be denied
benefits provided by this chapter because the employer failed to
subscribe or because the employer's account is either delinquent
or in default.
(h) (1) The provisions of this section shall not deprive any
individual of any cause of action which has accrued as a result
of an injury or death which occurred during any period of
delinquency not resolved in accordance with the provisions of
this article, or subsequent failure to comply with the terms of
the repayment agreement.
(2) Upon withdrawal from the fund or termination of election
of any employer, he or she shall be refunded the balance due him
or her of his or her deposit, after deducting all amounts owed by
him or her to the workers' compensation fund, and the
commissioner shall notify the employees of such employer of said
termination in such manner as he or she may deem best andsufficient.
(3) Notice to employees in this section provided for shall
be given by posting written notice that the employer is defaulted
under the compensation law of West Virginia, and in the case of
employers required by this chapter to subscribe and pay premiums
to the fund, that the defaulted employer is liable to his or her
employees for injury or death, both in workers' compensation
benefits and in damages at common law or by statute; and in the
case of employers not required by this chapter to subscribe and
pay premiums to the fund, but voluntarily electing to do so as
herein provided, that neither the employer nor the employees of
such employer are protected by said laws as to any injury or
death sustained after the date specified in said notice. Such
notice shall be in the form prescribed by the commissioner and
shall be posted in a conspicuous place at the chief works of the
employer, as the same appear in records of the commissioner. If
said chief works of the employer cannot be found or identified,
then said notices shall be posted at the front door of the
courthouse of the county in which said chief works are located,
according to the records in the commissioner's office. Any
person who shall, prior to the reinstatement of said employer, as
hereinbefore provided for, or prior to sixty days after the
posting of said notice, whichever shall first occur, remove,
deface, or render illegible said notice, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not to
exceed five hundred dollars, and said notice shall state this
provision upon its face. The commissioner may require any
sheriff, deputy sheriff, constable or other official of the stateof West Virginia, who may be authorized to serve civil process,
to post such notice and to make return thereof of the fact of
such posting to the commissioner, and any failure of such officer
to post any notice within ten days after he or she shall have
received the same from the commissioner, without just cause or
excuse, shall constitute a willful failure or refusal to perform
a duty required of him or her by law within the meaning of
section twenty-eight, article five, chapter sixty-one of this
code. Any person actually injured by reason of such failure
shall have an action against said official, and upon any official
bond he or she may have given, for such damages as such person
may actually have incurred, but not to exceed, in the case of any
surety upon said bond, the amount of the penalty of said bond.
Any official posting said notice as herein required shall be
entitled to the same fee as is now or may hereafter be provided
for the service of process in suits instituted in courts of
record in the state of West Virginia, which fee shall be paid by
the commissioner out of any funds at his or her disposal, but
shall be charged by him or her against the account of the
employer to whose delinquency such notice relates.
§23-2-5a. Collection of premiums from defaulting employers;
interest and penalties; civil remedies; creation and
enforcement of lien against employer and purchaser;
duty of secretary of state to register liens;
distraint powers; insolvency proceedings; secretary
of state to withhold certificates of dissolution;
injunctive relief; bond; attorney fees and costs.
(a) The commissioner in the name of the state may commencea civil action against an employer who, after due notice,
defaults in any payment required by this chapter. If judgment is
against the employer, such employer shall pay the costs of the
action. Civil action under this section shall be given
preference on the calendar of the court over all other civil
actions. Upon prevailing in any such civil action, the
commissioner shall be entitled to recover his or her attorneys'
fees and costs of action from the employer.
(b) In addition to the foregoing provisions of this section,
any payment, interest and penalty thereon due and unpaid under
this chapter shall be a personal obligation of the employer
immediately due and owing to the commissioner and shall, in
addition thereto, be a lien enforceable against all the property
of the employer:
Provided,
That no such lien shall be
enforceable as against a purchaser (including a lien creditor) of
real estate or personal property for a valuable consideration
without notice, unless docketed as provided in section one,
article ten-c, chapter thirty-eight of this code:
Provided,
however,
That such lien may be enforced as other judgment liens
are enforced through the provisions of chapter thirty-eight of
this code and the same shall be deemed by the circuit court to be
a judgment lien for this purpose.
(c) In addition to all other civil remedies prescribed
herein, the commissioner may in the name of the state, after
giving appropriate notice as required by due process, distrain
upon any personal property, including intangible property, of any
employer delinquent for any payment, interest and penalty
thereon. If the commissioner has good reason to believe thatsuch property or a substantial portion thereof is about to be
removed from the county in which it is situated, upon giving
appropriate notice, either before or after the seizure, as is
proper in the circumstances, he or she may likewise distrain in
the name of the state before such delinquency occurs. For such
purpose, the commissioner may require the services of a sheriff
of any county in the state in levying such distress in the county
in which the sheriff is an officer and in which such personal
property is situated. A sheriff so collecting any payment,
interest and penalty thereon shall be entitled to such
compensation as is provided by law for his or her services in the
levy and enforcement of executions. Upon prevailing in any
distraint action, the commissioner shall be entitled to recover
his or her attorneys' fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter shall be operated in
connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction such
business is operated shall, by the entry of a proper order or
decree in the cause, make provisions, so far as the assets in
administration will permit, for the regular payment of such
payments, interest and penalties as the same become due.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by the commissioner that
all payments, interest and penalties thereon against any suchcorporation which is an employer under this chapter have been
paid or that provision satisfactory to the commissioner 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, or
interest thereon, for as many as two calendar quarters, which
quarters need not be consecutive, and remains in default after
due notice, and the commissioner has been unable to collect such
payments by any of the other civil remedies prescribed herein,
the commissioner may bring action in the circuit court of Kanawha
county to enjoin such employer from continuing to carry on the
business in which such liability was incurred:
Provided,
That
the commissioner may as an alternative to this action require
such delinquent employer to file a bond in the form prescribed by
the commissioner with satisfactory surety in an amount not less
than fifty percent more than the payments, interest and penalties
due.
§23-2-5b. Legislative purpose; application for settlement;
reinstatement; amount of settlement; when settlement
void; notification of rights.
The Legislature hereby declares that it is the purpose of
this section to provide any employer who may, as of the effective
date of this section, be in default in any payment due under the
provisions in this article an opportunity to settle the amount of
the default in accordance with the provisions hereinafter set
forth. For purposes of this section, the term "default" shall
apply to any employer who has failed to subscribe or pay premiums
to the workers' compensation fund in accordance with theprovisions of this chapter.
(a) On or before the first day of February, one thousand
nine hundred ninety-four, any employer who may qualify under this
section shall apply to the commissioner for a settlement of the
amount of default. Such application shall: (1) Be made on a
form prescribed by the commissioner; (2) include the gross
payroll of the employer during the entire period of delinquency
and default, which payroll information shall be certified by the
employer or its authorized agent; and (3) include a payment equal
to one half of one percent of the gross payroll during the period
of delinquency and default, but not to exceed the amount of the
entire liability due and owing for the period of delinquency and
default.
(b) Notwithstanding other provisions of this chapter to the
contrary, upon timely receipt of the application prescribed in
subdivision (a) of this section, the employer shall be entitled
to the benefits and protections of this chapter:
Provided,
That
such entitlement shall not affect any cause of action which has
accrued against the employer as a result of an injury sustained
during any period of default prior to the date of the
application:
Provided, however,
That the subsequent failure of
the employer to make scheduled payments or to pay accrued or
future interest in accordance with any repayment agreement or to
timely file current premiums within the month following the end
of the quarter for which the report and payment are due, or to
otherwise maintain its account in good standing or, if a
repayment agreement does not require earlier restoration of the
premium deposit, to restore the premium deposit to the requiredamount by the end of any repayment period shall cause the
application or any repayment agreement, or both, to be null, void
and of no effect, and the employer shall be denied the benefits
and protection of this chapter effective from the date that such
employer's account originally became delinquent.
(c) After the commissioner shall have received the
application of an employer as prescribed herein, the commissioner
and the employer or its authorized agent shall agree, in writing,
on or before the first day of July, one thousand nine hundred
ninety-four, to settle the default in an amount which shall
include all delinquent premium payments, plus interest,
compounded monthly, at the rate of nine percent per annum. The
commissioner may authorize payment of the amount set forth in the
agreement on a payment schedule, which period shall not exceed
three years from the date of the execution of the agreement. The
agreement shall set forth that the employer shall be in default
if any payment shall not be received by the commissioner within
fifteen days of the due date thereof.
(d) If the employer shall fail to pay timely current
premiums in accordance with the provisions of this chapter or if
the employer shall default upon any payment set forth under the
terms of the agreement, such application or agreement, or both,
shall be null, void and of no effect and the commissioner shall
have the authority to proceed in accordance with the provisions
of this chapter. Current premiums shall be timely paid when they
are paid within the month following the end of the quarter for
which the reported payment is due.
(e) The commissioner shall notify in writing, by the firstday of January, one thousand nine hundred ninety-four, all
employers, who are in default as indicated by the records of the
commissioner, of the employer's right to apply for a settlement
in accordance with the provisions of this section. The
commissioner may also take additional steps, as deemed
appropriate, to notify other employers of the rights set forth
herein. The written notice of the commissioner shall include the
form required for application and the commissioner shall make
such form available to other employers.
§23-2-5c. Statute of limitations; effective date for new
payments; previous payments due not affected.
For payments due after the effective date of this section,
every action or process to collect any premium, premium deposit,
interest or penalty due from an employer pursuant to this article
by the commissioner shall be brought or issued within five years
next after the date on which the employer is required by the
section imposing the premium, premium deposit, interest or
penalty to file a report and pay the amount due thereunder. The
limitation provided by this section shall likewise apply to
enforcement of the lien, if any, securing the payment of such
premium, premium deposit, interest or penalty, but shall not
apply in event of fraud or in event the employer wholly fails to
file the report required by the section imposing the premium,
premium deposit, interest or penalty. For payments that were due
prior to the effective date of this section, there shall continue
to be no limitation on when actions or processes may be brought
or issued.
§23-2-5d. Uncollectible receivables; write-offs.
The commissioner, with the approval of the attorney general,
may write-off any uncollected receivable due under the provisions
of this article which the commissioner and the attorney general
deem to be uncollectible.
§23-2-15. Liabilities of successor employer; waiver of payment
by commissioner; assignment of predecessor employer's
premium rate to successor.
(a) Notwithstanding any provisions of section five-a of this
article to the contrary, in the event that a new employer
acquires by sale or other transfer or assumes all or
substantially all of a predecessor employer's actual business,
business assets, customers, clients, contracts, operations, stock
of goods, equipment or substantially all of its employees, then
any liens for payments owed to the commissioner for premiums,
premium deposits, interest or claims losses by the predecessor
employer or any liens held by the commissioner against the
predecessor employer's property shall be extended to the assets
acquired as the result of the sale or transfer by the new
employer and shall be enforceable against such assets by the
commissioner to the same extent as provided for the enforcement
of liens against the predecessor employer pursuant to said
section. As used in this section, the term "assets" is defined
as provided in section fourteen of this article. The foregoing
provisions are expressly intended to impose upon such new
employers the duty of obtaining, prior to the date of such
acquisition, verification from the commissioner that the
predecessor employer's account with the commissioner is in good
standing.
(b) At any time prior to or following the acquisition
described in subsection (a) of this section, the buyer or other
recipient may file a certified petition with the commissioner
requesting that the commissioner waive the payment by the buyer
or other recipient of premiums, premium deposits, interest and
imposition of the modified rate of premiums attributable to the
predecessor employer, or any combination thereof. The
commissioner shall review the petition by considering the six
factors set forth below:
(1) The exact nature of the default;
(2) The amount owed to the commissioner;
(3) The solvency of the fund;
(4) The financial condition of the buyer or other recipient;
(5) The equities exhibited towards the fund by the buyer or
other recipient during the acquisition process; and
(6) The potential economic impact upon the state and the
specific geographic area in which the buyer or other recipient is
to be or is located, if the acquisition were not to occur.
Unless requested by a party or by the commissioner, no
hearing need be held on the petition. However, any decision made
by the commissioner on the petition shall be in writing and shall
include appropriate findings of fact and conclusions of law.
Such decision shall be effective ten days following notice to the
public of the decision unless an objection is filed in the manner
herein provided. Such notice shall be given by the
commissioner's publication of a Class I legal advertisement which
complies with the provisions of article three, chapter fifty-nine
of this code. The publication shall include a summary of thedecision and a statement advising that any person objecting to
the decision must file, within ten days after publication of the
notice, a verified response with the commissioner setting forth
the objection and the basis therefor. The publication area shall
be Kanawha County, West Virginia. If any such objection is
filed, the commissioner shall hold an administrative hearing,
conducted pursuant to article five, chapter twenty-nine-a of this
code, within fifteen days of receiving the response unless the
buyer or other recipient consents to a later hearing. Nothing in
this subsection shall be construed to be applicable to the seller
or other transferor or to affect in any way a proceeding under
sections five and five-a of this article.
(c) In the factual situations set forth in subsection (a) of
this section, if the predecessor's modified rate of premium, as
calculated in accordance with section four of this article, is
greater than the manual rate of premium, as calculated in
accordance with said section, for other employers in the same
class or group, then the new employer shall also assume the
predecessor employer's modified rates for the payment of premiums
as determined under sections four and five of this article until
sufficient time has elapsed for the new employer's experience
record to be combined with the experience record of the
predecessor employer.
§23-2-17. Employer right to hearing; content of petition;
appeal.
Notwithstanding any provision in this chapter to the
contrary and notwithstanding any provision in section five,
article five, chapter twenty-nine-a of this code to the contrary,in any situation where an employer objects to a decision or
action of the commissioner made under the provisions of this
article, then such employer shall be entitled to file a petition
demanding a hearing upon such decision or action which petition
must be filed within thirty days of the employer's receipt of
notice of the disputed commissioner's decision or action or, in
the absence of such receipt, within sixty days of the date of the
commissioner's making such disputed decision or taking such
disputed action, such time limitations being hereby declared to
be a condition of the right to litigate such decision or action
and hence jurisdictional.
The employer's petition shall clearly identify the decision
or action disputed and the bases upon which the employer disputes
the decision or action. Upon receipt of such a petition, the
commissioner shall schedule a hearing which shall be conducted in
accordance with the provisions of article five, chapter twenty-
nine-a of this code. An appeal from a final decision of the
commissioner shall be taken in accord with the provisions of
articles five and six of said chapter:
Provided,
That all such
appeals shall be taken to the circuit court of Kanawha county.
ARTICLE 2B. OCCUPATIONAL SAFETY AND HEALTH PROGRAMS.
§23-2B-1. Occupational safety and health activities; voluntary
compliance; consultative services.
In order to carry out the purposes of this chapter and to
encourage voluntary compliance with occupational safety and
health laws, regulations and standards and to promote more
effective workplace health and safety programs, the commissioner
acting in conjunction with the performance council createdpursuant to section one, article three, chapter twenty-one-a of
this code, shall:
(a) Develop greater knowledge and interest in the causes and
prevention of industrial accidents, occupational diseases and
related subjects through:
(1) Research, conferences, lectures and the use of public
communications media;
(2) The collection and dissemination of accident and disease
statistics; and
(3) The publication and distribution of training and
accident prevention materials, including audio and visual aids;
(b) Provide consultative services for employers on safety
and health matters and prescribe procedures which will permit any
employer to request a special inspection or investigation,
focused on specific problems or hazards in the place of
employment of the employer or to request assistance in developing
a plan to correct such problems or hazards, which will not
directly result in a citation and civil penalty; and
(c) Place emphasis, in the research, education and
consultation program, on development of a model for providing
services to groups of small employers in particular industries
and their employees and for all employers whose experience
modification factor for rate-setting purposes is in excess of the
criteria established by the compensation programs performance
council.
§23-2B-2. Mandatory programs; safety committees; requirements;
rules; exceptions.
(a) Based upon and to the extent authorized by criteriaestablished by the compensation programs performance council, the
commissioner is authorized to conduct special inspections or
investigations focused on specific problems or hazards in the
workplace with or without the agreement of the employer. The
commissioner shall issue a report on his or her findings and
shall furnish a copy of the report to the employer and to any
bargaining unit representing the employees of the employer. The
commissioner may share information obtained or developed pursuant
to this article with other governmental agencies.
(b) For any employer whose experience modification factor
exceeds the criteria established by the compensation programs
performance council, the commissioner may require the employer to
establish a safety committee composed of representatives of the
employer and the employees of the employer.
(c) In carrying out the provisions of this article, the
commissioner and the compensation programs performance council
shall promulgate rules which shall include, but are not limited
to, the following provisions:
(1) Prescribing the membership of the committees, training,
frequency of meetings, record keeping and compensation of
employee representatives on safety committees; and
(2) Prescribing the duties and functions of safety
committees which include, but are not limited to:
(A) Establishing procedures for workplace safety
inspections; and for investigating job-related accidents,
illnesses and deaths; and
(B) Evaluating accident and illness prevention programs.
(d) An employer that is a member of a multi-employer groupoperating under a collective bargaining agreement that contains
provisions regulating the formation and operation of a safety
committee that meets or exceeds the minimum requirements of this
section shall be considered to have met the requirements of this
section.
(e) It is not the purpose of this article to either
supercede the federal Occupational Health and Safety Act program,
federal Mine Safety and Health Act program or to create a state
counterpart to this program.
§23-2B-3. Premium rate credits; qualified loss management
program; loss management firms; penalties; rules.
(a) The commissioner, in conjunction with the compensation
programs performance council, is authorized to establish by rule
a premium credit program for certain employers. The program
shall be applicable solely to regular subscribers to the workers'
compensation fund and not to self-insurers. Participation in any
premium credit program shall be voluntary and no employer shall
be required to participate.
(b) The program shall apply a prospective credit to the
premium rate of a subscribing employer who participates in a
qualified loss management program. The prospective credit shall
be given for a period of up to three years, provided that the
employer remains in the program for a corresponding period of
time.
(c) The rule shall specify the requirements of a qualified
loss management program and shall include a requirement that a
recognized loss management firm participate in the program. A
loss management firm shall be recognized if it has demonstratedan ability to significantly reduce workers' compensation losses
for its client employers by implementing a loss control
management program. The amount of credit against premium rates
that may be allowed by the commissioner shall vary from firm to
firm and shall be primarily determined by the loss reduction
success experienced by all of the subscribing employers of the
sponsoring loss management firm over a period of time to be
determined by the commissioner.
(d) A credit shall be applied to the employer's premium rate
for up to three years. The amount of the credit applied to the
first year is based on the credit factor assigned to the loss
management firm on the date the employer subscribes to the
program. The amount of the credit applied to the second and
third years shall be based on the credit factor assigned to the
loss management firm and in effect on each first day of July of
the pertinent year:
Provided,
That the applicable credit is
halved in the third year.
(e) The employer may terminate participation in the program
upon three years of continuous participation in the program
without penalty. Sooner termination may result in a penalty
being applied to the employer's premium rate.
(f) An employer who has subscribed to an existing program of
a qualified loss management firm prior to the effective date of
this section shall be subject to a reduction in credit as
follows:
(1) Participation for one year or less shall result in
credit for the full three years;
(2) Participation for more than one year but less than twoyears shall result in a credit for two years;
(3) Participation for two years or more but less than three
years shall result in a credit for one year; and
(4) Participation for three years or more shall result in no
credit.
(g) This section shall not become effective until the
commissioner, in conjunction with the compensation programs
performance council, promulgates an appropriate rule to implement
the section's provisions.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1e. Temporary total disability benefits not to be paid
for periods of penitentiary or jail confinement;
denial of workers' compensation benefits for injuries
or disease incurred while incarcerated.
(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 such person is incarcerated in
a penitentiary or jail:
Provided,
That incarceration 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
incarceration. 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 commissioner.
(b) Notwithstanding any provision of this code to the
contrary, no person incarcerated in a penitentiary or jail whosuffers injury or a disease in the course of and resulting from
his or her work during such period of incarceration which work is
imposed by the administration of the penitentiary or jail and is
not suffered during such person's usual employment with his or
her usual employer when not incarcerated shall receive benefits
under the provisions of this chapter for such injury or disease.
§23-4-1f. Certain psychiatric injuries and diseases not
compensable.
For the purposes of this chapter, no alleged injury or
disease shall be recognized as a compensable injury or disease
which was solely caused by nonphysical means and which did not
result in any physical injury or disease to the person claiming
benefits. It is the purpose of this section to clarify that
so-called mental-mental claims are not compensable under this
chapter.
§23-4-3. Schedule of maximum disbursements for medical,
surgical, dental and hospital treatment; legislative
approval; guidelines; preferred provider agreements;
charges in excess of scheduled amounts not to be made;
required disclosure of financial interest in sale or
rental of medically related mechanical appliances or
devices; promulgation of rules to enforce requirement;
consequences of failure to disclose; contract by
employer with hospital, physician, etc., prohibited;
criminal penalties for violation; payments to certain
providers prohibited; medical cost and care programs;
payments; interlocutory orders.
(a) The commissioner shall establish and alter from time totime as he or she may determine to be appropriate a schedule of
the maximum reasonable amounts to be paid to chiropractic
physicians, medical physicians, osteopathic physicians,
podiatrists, optometrists, vocational rehabilitation specialists,
pharmacists, ophthalmologists and others practicing medicine and
surgery, surgeons, hospitals or other persons, firms or
corporations for the rendering of treatment or services to
injured employees under this chapter. The commissioner also, on
the first day of each regular session and also from time to time,
as the commissioner may consider appropriate, shall submit the
schedule, with any changes thereto, to the Legislature. The
promulgation of the schedule is not subject to the legislative
rule-making review procedures established in sections nine
through sixteen, article three, chapter twenty-nine-a of this
code.
The commissioner shall disburse and pay from the fund for
such personal injuries to such employees as may be entitled
thereto hereunder as follows:
(1) Such sums for medicines, medical, surgical, dental and
hospital treatment or services, crutches, artificial limbs and
such other and additional approved mechanical appliances and
devices as may be reasonably required. The commissioner shall
determine that which is reasonably required within the meaning of
this section in accordance with the guidelines developed by the
health care advisory panel pursuant to section three-b of this
article:
Provided,
That nothing herein shall prevent the
implementation of guidelines applicable to a particular type of
treatment or service or to a particular type of injury beforeguidelines have been developed for other types of treatment or
services or injuries:
Provided, however,
That any guidelines for
utilization review which are developed in addition to the
guidelines provided for in said section may be utilized by the
commissioner until superseded by guidelines developed by the
health care advisory panel pursuant to said section. Each health
care provider who seeks to provide services or treatment which
are not within any such guideline shall submit to the
commissioner specific justification for the need for such
additional services in the particular case and the commissioner
shall have the justification reviewed by a health care
professional before authorizing any such additional services.
The commissioner is authorized to enter into preferred provider
agreements.
(2) Payment for such medicine, medical, surgical, dental
and hospital treatment or services, crutches, artificial limbs
and such other and additional approved mechanical appliances and
devices authorized under this subsection may be made to the
injured employee or to the person, firm or corporation who or
which has rendered such treatment or furnished any of the items
specified above, or who has advanced payment for same, as the
commissioner may deem proper, but no such payments or
disbursements shall be made or awarded by the commissioner unless
duly verified statements on forms prescribed by the commissioner
shall be filed with the commissioner within two years after the
cessation of such treatment or the delivery of such appliances:
Provided,
That no payment hereunder shall be made unless such
verified statement shows no charge for or with respect to suchtreatment or for or with respect to any of the items specified
above has been or will be made against the injured employee or
any other person, firm or corporation, and when an employee
covered under the provisions of this chapter is injured in the
course of and as a result of his or her employment and is
accepted for medical, surgical, dental or hospital treatment or
services or any mechanical appliances and devices, the person,
firm or corporation rendering such treatment is hereby prohibited
from making any charge or charges therefor or with respect
thereto against the injured employee or any other person, firm or
corporation which would result in a total charge for the
treatment rendered in excess of the maximum amount set forth
therefor in the commissioner's schedule established as aforesaid.
(b) No chiropractic physician, medical physician,
osteopathic physician, podiatrist or others practicing medicine
or surgery (collectively and individually referred to hereinafter
as "practitioner" or "practitioners") shall refer his or her
patients to the practitioner himself or herself or to a supplier
of mechanical appliances or devices owned in whole or in part by
the practitioner, the practitioner's partnership or professional
corporation, or a member of the practitioner's immediate family
for the purchase or rental of any mechanical appliances or
devices which the practitioner has prescribed or recommended to
such patient except upon the terms prescribed by this section.
Examples of mechanical appliances or devices are described as
follows, but these examples are described for illustrative
purposes only and are not intended to limit the range of items
included by this phrase: Hearing aids; crutches; artificiallimbs; oxygen concentrators; and TENS units. For the purposes of
this subsection, the term "practitioner" shall include natural
persons, partnerships and professional corporations.
(1) In order to avoid the bar of this subdivision, a
practitioner shall first disclose to his or her patient the
ownership interest of the practitioner, or of the practitioner's
partnership or professional corporation, or of a member of the
practitioner's immediate family in the entity which would sell or
rent the mechanical appliance or device to the patient. If the
practitioner would sell or rent the mechanical appliance or
device as part of his or her practice and not as a separate legal
entity, the practitioner shall disclose this fact to the patient.
These disclosures must be delivered in writing to the patient.
(2) The commissioner may include in any rules promulgated to
implement this section a requirement that the written notice
disclose to the patient that he or she is free to use any lawful
supplier of the mechanical appliance or device prescribed or
recommended and that other suppliers may offer the mechanical
appliance or device for less cost but of equal or better quality
elsewhere and that the patient is encouraged to comparison shop.
The commissioner's rule may also provide for a differing level of
reimbursement to the supplier if the supplier is the practitioner
himself or herself or if the supplier is owned in whole or in
part by the practitioner, the practitioner's partnership or
professional corporation or a member of the practitioner's
immediate family as compared to the reimbursement of a supplier
who is wholly independent from the practitioner.
(3) Failure by a practitioner to comply with the provisionsof this subsection shall cause the practitioner to forfeit his,
her, or its right to reimbursement for the services rendered by
the practitioner to the patient and, if any such services have
previously been reimbursed, the commissioner shall either seek
recovery of such funds by any lawful means or by deducting such
amounts from future payments to the practitioner on account of
services rendered to the same patient or to other claimants of
the workers' compensation fund. In addition, failure by a
practitioner to comply with the provisions of this subsection
shall also result in the denial of payment to the supplier of the
mechanical appliance or device if that supplier is one which is
owned in whole or in part by the practitioner, the practitioner's
partnership or professional corporation, or a member of the
practitioner's immediate family. If such supplier has already
been reimbursed for the cost of the pertinent mechanical
appliance or device, then the commissioner shall either seek
recovery of such funds by any lawful means or by deducting such
amounts from future payments to the supplier on account of goods
delivered to the same patient or to other claimants of the
workers' compensation fund.
(c) No employer shall enter into any contracts with any
hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or
surgical attention therein to any employee for injury compensable
within the purview of this chapter, and no employer shall permit
or require any employee to contribute, directly or indirectly, to
any fund for the payment of such medical, surgical, dental or
hospital service within such hospital for such compensableinjury. Any employer violating this section shall be liable in
damages to the employer's employees as provided in section eight,
article two of this chapter, and any employer or hospital or
agent or employee thereof violating the provisions of this
section shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be punished by a fine not less than one hundred
dollars nor more than one thousand dollars or by imprisonment not
exceeding one year, or both:
Provided,
That the foregoing
provisions of this subsection shall not be deemed to prohibit an
employer from participating in a preferred provider organization
or program or a health maintenance organization or other medical
cost containment relationship with the providers of medical,
hospital or other health care:
Provided, however,
That nothing
in this section shall be deemed to restrict the right of a
claimant to select a health care provider for treatment of a
compensable injury or disease.
(d) When an injury has been reported to the commissioner by
the employer without protest, the commissioner may pay, or order
an employer who or which made the election and who or which
received the permission mentioned in section nine, article two of
this chapter to pay, within the maximum amount provided by
schedule established by the commissioner as aforesaid, bills for
medical or hospital services without requiring the injured
employee to file an application for benefits.
(e) The commissioner 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 refittedbecause of the progression of the injury which caused the same to
be originally furnished, or which are broken in the course of and
as a result of the employee's employment. The fund or self-
insured employer shall pay for these devices, when needed,
notwithstanding any time limits provided by law.
(f) No payment shall be made to a health care provider who
is suspended or terminated under the terms of section three-c of
this article except as provided in subsection (c) of said
section.
(g) The commissioner is authorized to engage in and contract
for medical cost containment programs, medical case management
programs and utilization review programs. Payments for these
programs shall be made from the supercedeas reserve of the
surplus fund. Any order issued pursuant to any such program
shall be interlocutory in nature until an objecting party has
exhausted all review processes provided for by the commissioner.
(h) Notwithstanding the foregoing, the commissioner may
establish fee schedules, make payments and take other actions
required or allowed pursuant to article twenty-nine-d, chapter
sixteen of this code.
§23-4-3a. Wrongfully seeking payment for services or supplies;
criminal penalties; restitution.
(a) If any person who is a health care provider shall:
(1) Knowingly, and with intent to defraud, secure or attempt
to secure payment from the workers' compensation fund or a self-
insured employer for services or supplies when such person is not
entitled to such payment or is entitled to some lesser amount of
payment; or
(2) Knowingly 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 therefor in the
commissioner's schedule of maximum reasonable amounts to be paid
for such treatment or services issued pursuant to subsection (a),
section three of this article, then in either case, such person
shall be guilty of a felony, and, upon conviction thereof, shall
be fined not more than ten thousand dollars, or imprisoned not
more than two years, or both fined and imprisoned. 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 commissioner, a self-insured employer, injured
employee or other person as the result of the violation of this
section.
(b) Any person who is a health care provider who fails, in
violation of subsection (e), section three-c of this article, to
post a notice, in the form required by the commissioner, 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 unless
such patient consents, in writing, prior to the provision of such
treatment or other services or supplies, to make payment for that
treatment or other services or supplies himself or herself, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined one thousand dollars.
(c) Any person who is a health care provider, who is
suspended or terminated under section three-c of this articleand, who intentionally attempts to collect any sum of money from
an injured employee who was not, prior to the provision of any
treatment or other services or supplies, provided with the notice
required by subsection (c) of section, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than ten thousand dollars, or imprisoned in the county jail
not more than twelve months, or both fined and imprisoned.
(d) For the purposes of this section, the term "person who
is a health care provider" shall mean any person who has
rendered, or who represents that he has rendered, any treatment
to an injured employee under this chapter, or any person who has
supplied, or who represents that he has supplied, any medication
or any crutches, artificial limbs and other mechanical appliances
and devices for such injured employee. The term shall include,
but not be limited to, persons practicing medicine and surgery,
podiatry, dentistry, nursing, pharmacy, optometry, osteopathic
medicine and surgery, chiropractic, physical therapy, psychology,
radiologic technology, occupational therapy or vocational
rehabilitation, and shall also include hospitals, professional
corporations and other corporations, firms and business entities.
(e) Any person convicted under the provisions of this
section shall, from and after such conviction, be barred from
providing future services or supplies to injured employees under
this chapter and shall cease to receive payment for such services
or supplies.
§23-4-3c. Suspension or termination of providers of health care.
(a) The commissioner may suspend for up to one year or
terminate the right of any health care provider, including aprovider of rehabilitation services within the meaning of section
nine of this article, to obtain payment for services rendered to
injured employees:
(1) If the commissioner finds that the health care provider
is regularly providing excessive, medically unreasonable or
unethical care to injured employees;
(2) If the commissioner finds that a health care provider is
attempting to make any charge or charges against the injured
employee or any other person, firm or corporation which would
result in a total charge for any treatment rendered in excess of
the maximum amount set by the commissioner, in violation of
section three of this article;
(3) If the commissioner determines that the health care
provider has had his or her license to practice suspended or
terminated by the appropriate authority in this state or in
another state; or
(4) If the commissioner determines that the health care
provider has been convicted of any crime in relation to his or
her practice.
The commissioner shall consult with medical experts,
including the health care advisory panel established pursuant to
section three-b of this article, for purposes of determining
whether a health care provider should be suspended or terminated
pursuant to this section.
(b) Upon the commissioner determining that there is probable
cause to believe that a health care provider should be suspended
or terminated pursuant to this section, the commissioner shall
provide such health care provider with written notice which shallstate the nature of the charges against the health care provider
and the time and place at which such health care provider shall
appear to show cause why the health care provider's right to
receive payment under this chapter should not be suspended or
terminated, at which time and place such health care provider
shall be afforded an opportunity to review the commissioner's
evidence and to cross-examine the commissioner's witnesses and
also afforded the opportunity to present testimony and enter
evidence in support of its position. The hearing shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. The hearing may be conducted
by the commissioner or a hearing officer appointed by the
commissioner. The commissioner or hearing officer shall have the
power to subpoena witnesses, papers, records, documents and other
data and things in connection with the proceeding hereunder and
to administer oaths or affirmations in any such hearing. If,
after reviewing the record of such hearing, the commissioner
determines that the right of such health care provider to obtain
payment under this article should be suspended for a specified
period of time or should be terminated, the commissioner shall
issue a final order suspending or terminating the right of such
health care provider to obtain payment for services under this
article. Any health care provider so suspended or terminated
shall be notified in writing and the notice shall specify the
reasons for the action so taken. Any appeal by the health care
provider shall be brought in the circuit court of Kanawha county
or in the county in which the provider's principal place of
business is located. The scope of the court's review of such anappeal shall be as provided in section four of said article.
The provider may be suspended or terminated, based upon the final
order of the commissioner, pending final disposition of any
appeal. Such final order may be stayed by the circuit court
after hearing, but shall not be stayed in or as a result of any
ex parte proceeding. If the health care provider does not appeal
the final order of the commissioner within thirty days, it shall
be final.
(c) No payment shall be made to a health care provider or to
an injured employee for services provided by a health care
provider after the effective date of a commissioner's final order
terminating or suspending the health care provider:
Provided,
That nothing herein shall prohibit payment by the commissioner or
self-insured employer to a suspended or terminated health care
provider for medical services rendered where the medical services
were rendered to an injured employee in an emergency situation.
The suspended or terminated provider is prohibited from making
any charge or charges for any services so provided against the
injured employee unless the injured employee, before any services
are rendered, is given notice by the provider in writing that the
provider does not participate in the workers' compensation
program and that the injured employee will be solely responsible
for all payments to the provider, and unless the injured employee
also signs a written consent, before any services are rendered,
to make payment directly and to waive any right to reimbursement
from the commissioner or the self-insured employer. The written
consent and waiver signed by the injured employee shall be filed
by the provider with the commissioner and shall be made a part ofthe claim file.
(d) The commissioner shall notify each claimant, whose duly
authorized treating physician or other health care provider has
been suspended or terminated pursuant to this section, of the
suspension or termination of the provider's rights to obtain
payment under this chapter and shall assist the claimant in
arranging for transfer of his or her care to another physician or
provider.
(e) Each suspended or terminated provider shall post in the
provider's public waiting area or areas a written notice, in the
form required by the commissioner, of the suspension or
termination of the provider's rights to obtain payment under this
chapter.
(f) A suspended or terminated provider may apply for
reinstatement at the end of the term of suspension or, if
terminated, after one year from the effective date of
termination.
(g) The commissioner shall promulgate rules for the purpose
of implementing this section.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions
of this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The expressions "average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury" and
"average weekly wage in West Virginia", as used in this chapter,
shall have the meaning and shall be computed as set forth in
section fourteen of this article except for the purpose ofcomputing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(b) If the injury causes temporary total disability, the
employee shall receive during the continuance thereof weekly
benefits as follows: A maximum weekly benefit to be computed on
the basis of seventy percent of the average weekly wage earnings,
wherever earned, of the injured employee, at the date of injury,
not to exceed the percentage of the average weekly wage in West
Virginia, as follows: On or after the first day of July, one
thousand nine hundred sixty-nine, forty-five percent; on or after
the first day of July, one thousand nine hundred seventy, fifty
percent; on or after the first day of July, one thousand nine
hundred seventy-one, fifty-five percent; on or after the first
day of July, one thousand nine hundred seventy-three, sixty
percent; on or after the first day of July, one thousand nine
hundred seventy-four, eighty percent; on or after the first day
of July, one thousand nine hundred seventy-five, one hundred
percent.
The minimum weekly benefits paid hereunder shall not be less
than twenty-six dollars per week for injuries occurring on or
after the first day of July, one thousand nine hundred sixty-
nine; not less than thirty-five dollars per week for injuries
occurring on or after the first day of July, one thousand nine
hundred seventy-one; not less than forty dollars per week for
injuries occurring on or after the first day of July, one
thousand nine hundred seventy-three; not less than forty-five
dollars per week for injuries occurring on or after the first dayof July, one thousand nine hundred seventy-four; and for injuries
occurring on or after the first day of July, one thousand nine
hundred seventy-six, thirty-three and one-third percent of the
average weekly wage in West Virginia, except as provided in
section six-d of this article.
(c) Subdivision (b) of this section shall be limited as
follows: Aggregate award for a single injury causing temporary
disability shall be for a period not exceeding two hundred eight
weeks.
(d) If the injury causes permanent total disability,
benefits shall be payable during the remainder of life at the
maximum or minimum weekly benefits as provided in subdivision (b)
of this section for temporary total disability. A permanent
disability of eighty-five percent or more shall entitle the
employee to a rebuttable presumption of a permanent total
disability for the purpose of this section. Under no
circumstances shall the commissioner grant an additional
permanent disability award to a claimant receiving a permanent
total disability award, or to a claimant who has previously been
granted permanent disability awards totaling eighty-five percent
or more and has been granted a permanent total disability award:
Provided,
That if any claimant thereafter sustains another
compensable injury and has permanent partial disability resulting
therefrom, the total permanent disability award benefit rate
shall be computed at the highest benefit rate justified by any of
the compensable injuries, and the cost of any increase in the
permanent total disability benefit rate shall be paid from the
second injury reserve created by section one, article three ofthis chapter. In any claim in which a claimant aggregates
permanent partial disability awards in the amount of eighty-five
percent or more after the effective date of this subsection, the
claimant shall be entitled to a permanent total disability award
unless the evidence establishes that the claimant is not
permanently and totally disabled pursuant to subdivision (n) of
this section.
(e) If the injury causes permanent disability less than
permanent total disability, the percentage of disability to total
disability shall be determined and the award computed on the
basis of four weeks' compensation for each percent of disability
determined, at the following maximum or minimum benefit rates:
Seventy percent of the average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury, not to
exceed the percentage of the average weekly wage in West
Virginia, as follows: On or after the first day of July, one
thousand nine hundred sixty-nine, forty-five percent; on or after
the first day of July, one thousand nine hundred seventy, fifty
percent; on or after the first day of July, one thousand nine
hundred seventy-one, fifty-five percent; on or after the first
day of July, one thousand nine hundred seventy-three, sixty
percent; on or after the first day of July, one thousand nine
hundred seventy-five, sixty-six and two-thirds percent.
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 ofdisability shall be determined by the commissioner, with the
following table establishing the minimum percentage of
disability. In determining the percentage of disability, the
commissioner may be guided by, but shall not be limited to, the
disabilities enumerated in the following table, and in no event
shall the disability be less than that specified in the following
table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a
two percent disability.
The loss of all toes shall be considered a twenty-five
percent disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall beconsidered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index finger shall be considered a
thirty-two percent disability.
The loss of index and middle finger shall be considered a
twenty percent disability.
The loss of middle and ring finger shall be considered a
fifteen percent disability.
The loss of ring and little finger shall be considered a ten
percent disability.
The loss of thumb, index and middle finger shall beconsidered a forty percent disability.
The loss of index, middle and ring finger shall be
considered a thirty percent disability.
The loss of middle, ring and little finger shall be
considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two
percent disability.
The loss of hand shall be considered a fifty percent
disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent
disability.
The total and irrecoverable loss of the sight of one eye
shall be considered a thirty-three percent disability. For the
partial loss of vision in one, or both eyes, the percentages of
disability shall be determined by the commissioner, using as a
basis the total loss of one eye.
The total and irrecoverable loss of the hearing of one ear
shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one, or both ears, the
percentage of disability shall be determined by the commissioner,
using as a basis the total loss of hearing in both ears.
Should a claimant sustain a compensable injury which results
in the total loss by severance of any of the bodily members named
in this subdivision, die from sickness or noncompensable injurybefore the commissioner makes the proper award for such injury,
the commissioner shall make such award to claimant's dependents
as defined in this chapter, if any; such payment to be made in
the same installments that would have been paid to claimant if
living:
Provided,
That no payment shall be made to any surviving
spouse of such claimant after his or her remarriage, and that
this liability shall not accrue to the estate of such claimant
and shall not be subject to any debts of, or charges against,
such estate.
(g) Should a claimant to whom has been made a permanent
partial award of from one percent to eighty-four percent, both
inclusive, die from sickness or noncompensable injury, the unpaid
balance of such award shall be paid to claimant's dependents as
defined in this chapter, if any; such payment to be made in the
same installments that would have been paid to claimant if
living:
Provided,
That no payment shall be made to any surviving
spouse of such claimant after his or her remarriage, and that
this liability shall not accrue to the estate of such claimant
and shall not be subject to any debts of, or charges against,
such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have the force and effect
of an award.
(i) The award for permanent disabilities intermediate to
those fixed by the foregoing schedule and permanent disability of
from one percent to eighty-four percent shall be the same
proportion and shall be computed and allowed by the commissioner.
(j) The percentage of all permanent disabilities other thanthose enumerated in subdivision (f) of this section shall be
determined by the commissioner, and awards made in accordance
with the provisions of subdivision (d) or (e) of this section.
Where there has been an injury to a member as distinguished from
total loss by severance of that member, the commissioner in
determining the percentage of disability may be guided by, but
shall not be limited to, the disabilities enumerated in
subdivision (f) of this section.
(k) Compensation payable under any subdivision of this
section shall not exceed the maximum nor be less than the weekly
benefits specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this
chapter, temporary total disability benefits payable under
subdivision (b) of this section shall not be deductible from
permanent partial disability awards payable under subdivision (e)
or (f) of this section. Compensation, either temporary total or
permanent partial, under this section shall be payable only to
the injured employee and the right thereto shall not vest in his
or her estate, except that any unpaid compensation which would
have been paid or payable to the employee up to the time of his
or her death, if he or she had lived, shall be paid to the
dependents of such injured employee if there be such dependents
at the time of death.
(m) The following permanent disabilities shall be
conclusively presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
In all other cases permanent disability shall be determined
by the commissioner in accordance with the facts in the case and
award made in accordance with the provisions of subdivision (d)
or (e).
(n) A disability which renders the injured employee unable
to engage in substantial gainful activity requiring skills or
abilities comparable to those of any gainful activity in which he
or she has previously engaged with some regularity and over a
substantial period of time shall be considered in determining the
issue of total disability. In addition, the vocational standards
adopted pursuant to subsection (m) of section seven, article
three, chapter twenty-one-a of this code shall be considered once
they are effective.
§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 commissioner, of its findings and
conclusions on every medical question in controversy and the
commissioner shall send one copy thereof to the employee or
claimant and one copy to the employer, and the board shall also
return to and file with the commissioner all the evidence as well
as all statements under oath, if any, of the persons who appear
before it on behalf of the employee or claimant, or employer, and
also all medical reports and X-ray examinations produced by or onbehalf 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 such claimant or deceased employee has
sustained a chronic respiratory disability, then it shall be
presumed that such claimant is suffering or such 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 shall not be
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.
(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 suchfindings and conclusions of the board, such party shall file with
the commissioner 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 such copy to such party,
unless for good cause shown, the commissioner or chief
administrative law judge extends such time, such party's
objections thereto 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 hereby declared to be a condition of the right to
litigate such findings and hence jurisdictional. After the time
has expired for the filing of objections to the findings and
conclusions of the board, the commissioner 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 therein
stated. If objection has been filed to the findings and
conclusions of the board, notice thereof shall be given to the
board, and the members thereof joining in such findings and
conclusions shall appear at the time fixed by the commissioner or
office of judges for the hearing to submit to examination and
cross-examination in respect to such findings and conclusions.
At such 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 takingof 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,
then such 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 deemed 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.
§23-4-16. Commissioner's jurisdiction over case continuous;
modification of finding or order; time limitation on
awards; reimbursement of claimant for expenses;
reopening cases involving permanent total disability;
promulgation of rules.
(a) The power and jurisdiction of the commissioner over eachcase shall be continuing and he may from time to time, after due
notice to the employer, make such modifications or changes with
respect to former findings or orders as may be justified:
Provided,
That no further award may be made in fatal cases
arising after the seventh day of March, one thousand nine hundred
twenty- nine, except within two years after the death of the
employee, or in case of nonfatal injuries, on and after the
seventh day of March, one thousand nine hundred twenty-nine,
except within five years after payments for temporary disability
shall have ceased or not more than two times within five years
after the commissioner shall have made the last payment in the
original award or any subsequent increase thereto in any
permanent disability case:
Provided, however,
That no such
modification or change may be made in any case in which no award
has been made, except within five years after the date of injury:
Provided further,
That a further award may be made for medical
benefits only at any time. In any case in which an injured
employee shall make application for a further adjustment of his
claim, if such application be in writing and filed within the
applicable time limit as prescribed herein, the commissioner
shall pass upon and determine the merits of such application
within thirty days after the filing thereof.
(b) If such application is based on a report of any medical
examination made of the claimant and submitted by the claimant to
the commissioner in support of his application, and the claim is
opened for further consideration and additional award is later
made, the claimant shall be reimbursed for the expenses of such
examination. Such reimbursement shall be made by thecommissioner to the claimant, in addition to all other benefits
awarded, upon due proof of the amount thereof being furnished the
commissioner by the claimant, but shall in no case exceed the sum
fixed pursuant to the commissioner's schedule of maximum
reasonable fees established under the provisions of section three
of this article.
(c) The commissioner shall have continuing power and
jurisdiction over claims in which permanent total disability
awards have been made after the effective date of this section.
(1) The commissioner shall continuously monitor permanent
total disability awards and may from time to time, after due
notice to the claimant, reopen a claim for reevaluation of the
continuing nature of the disability and possible modification of
the award:
Provided,
That such reopenings shall not be done
sooner than every two years:
Provided, however,
That any
individual claimant shall only be reevaluated a total of two
times after which he or she may not be again reevaluated under
the provisions of this subsection. The commissioner may reopen
a claim for reevaluation when, in the commissioner's sole
discretion, he or she concludes that there exists good cause to
believe that the claimant no longer meets the eligibility
requirements under subdivision, 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. This section shall not be applicable to any
claim in which the final decision on the eligibility of the
claimant to a permanent total disability award was made more than
ten years prior to the date of proposed reevaluation.
(2) Upon reopening a claim under this subsection, the
commissioner may take evidence, have the claimant evaluated, make
findings of fact and conclusions of law and shall vacate, modify
or affirm the original permanent total disability award as the
record requires. The claimant's former employer shall not be a
party to the reevaluation, but shall be notified of the
reevaluation and may submit such information to the commissioner
as the employer may elect. In the event the claimant retains his
or her award following the reevaluation, then the claimant's
reasonable attorneys' fees incurred in defending the award shall
be paid by the workers' compensation division from the
supercedeas reserve of the surplus fund. In addition, the
workers' compensation division shall reimburse a prevailing
claimant for his or her costs in obtaining one evaluation on each
issue during the course of the reevaluation with such
reimbursement being made from the supercedeas reserve of the
surplus fund. The compensation programs performance council
shall adopt criteria for the determination of reasonable
attorneys' fees.
(3) This subsection shall not be applied to awards made
under the provisions of subdivision (m) of section six of this
article. The claimant may seek review of the commissioner's
final order as otherwise provided for in article five of this
chapter for review of orders granting or denying permanent
disability awards.
§23-4-19. Wrongfully seeking compensation; criminal penalties;
restitution; termination of compensation.
Any person who shall knowingly and with fraudulent intentsecure or attempt to secure larger compensation, or compensation
for a longer term than he or she is entitled to, from the
workers' compensation fund or from a self-insured employer, or
knowingly and with like intent secure or attempt to secure
compensation from such fund or self-insured employer when he or
she is not entitled thereto, or shall knowingly and with like
intent aid and abet anyone in the commission of the offenses
herein set forth, shall be guilty of a felony, and, upon
conviction thereof, shall be fined not exceeding five thousand
dollars, or imprisoned not exceeding two years, or both, and 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 commissioner or self-insured employer as
the result of the violation of this section. If the person so
convicted is receiving compensation from such fund or
self-insured employer, he or she shall, from and after such
conviction, cease to receive such compensation as a result of
that alleged injury or disease.
§23-4-22. Permanent disability evaluations; limitations; notice.
Notwithstanding any provision in this chapter to the
contrary, any claim which was closed for the receipt of temporary
total disability benefits or which was closed on a no lost time
basis and which closure was more than five years prior to the
effective date of this section shall not be considered to still
be open or the subject for an evaluation of the claimant for
permanent disability merely because such evaluation has not
heretofore been conducted and a decision on permanent disability
has not been made:
Provided,
That if a request for an evaluationwas made in such a claim prior to the twenty-ninth day of March,
one thousand nine hundred ninety-three, the commissioner shall
have such evaluation performed. In every such instance, such a
claim shall be a case in which no award has been made for the
purposes of section sixteen of this article. In every claim
closed after the effective date of this section, the commissioner
shall give notice to the parties of the claimant's right to a
permanent disability evaluation.
§23-4-23. Permanent total disability benefits; reduction of
disability benefits; social security benefits;
applications; release of information; credit or
reduction of benefits; application of section;
severability.
(a) This section is applicable whenever benefits are being
paid for permanent total disability benefits arising under
subdivision (d), (m) or (n), section six of this article or under
section eight-c of this article. This section is not applicable
to the receipt of temporary total disability 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. This section is not applicable to
the receipt of medical benefits or the payment therefor.
(b) Whenever applicable benefits are paid to a beneficiary
with respect to the same time period for which old-age insurance
benefit payments under the Social Security Act, 42 U.S.C. 401 and
402, or payments under a self-insurance plan, a wage continuation
plan or a disability insurance policy provided by an employer,are also received or being received by the beneficiary, then such
applicable benefits shall be reduced by these amounts:
(1) Fifty percent of the amount of full old-age insurance
benefits received or being received under the Social Security
Act:
Provided,
That if the claimant is receiving reduced old-age
retirement benefits, then ten percent of the amount of old-age
social security insurance benefits, had such benefits not been
reduced, shall be deducted from the applicable benefits:
Provided, however,
That social security disability benefits shall
not be deducted from the applicable benefits when such disability
benefits are later changed to old-age insurance benefits upon the
claimant's attaining the age specified for such conversion by the
social security administration;
(2) The after-tax amount of the payments received or being
received under a self-insurance plan, a wage continuation plan,
or under a disability insurance policy provided by an employer if
the employee did not contribute directly to the plan or to the
payment of premiums regarding the disability insurance policy; or
(3) The proportional amount, based on the ratio of the
employer's contributions to the total insurance premiums for the
policy period involved, of the after-tax amount of the payments
received or being received by the employee pursuant to a
disability insurance policy provided by an employer if the
employee did contribute directly to the payment of premiums
regarding the disability insurance policy:
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.
(c) The commissioner shall notify a claimant or self-insured
employer of possible eligibility for social security benefits and
the requirements for establishing proof of application for those
benefits. Notification shall be promptly mailed by the
commissioner or self-insured employer to the claimant after the
date on which by reason of age the claimant may be entitled to
social security benefits. A self-insured employer shall file a
copy of any such notice of possible eligibility with the
commissioner within ten days of its mailing to the claimant.
(1) Within thirty days after the receipt of the notification
of possible eligibility, the claimant shall:
(A) Make application for social security benefits;
(B) Provide the commissioner or a self-insured employer with
proof of that application; and
(C) Provide the commissioner or self-insured employer with
an authorization for release of information which shall be
utilized by the commissioner or self-insured employer to obtain
necessary benefit entitlement and amount information from the
social security administration. The authorization for release of
information shall be effective for one year.
(2) Failure of the claimant to provide the proof of
application or authorization for release of information shall
allow the commissioner or self-insured employer with the approval
of the commissioner to discontinue the payment of applicable
benefits until the proof of application and the authorization for
release of information is provided. Compensation benefits
withheld shall be reimbursed to the claimant upon the providing
of the required proof of application or the authorization forrelease of information, or both.
(d) If the commissioner or the self-insured employer is
required to submit a new authorization for release of information
to the social security administration in order to receive
information necessary to comply with this section, the claimant
shall provide the new authorization for release of information
within thirty days of a request by the commissioner or
self-insured employer. Failure of the claimant to provide the
new authorization for release of information shall allow the
commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefits
until the authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the
claimant upon the providing of the authorization for release of
information.
(e) Within thirty days after either the date of first
payment of benefits or after the date of application for any
benefit under subsection (b) of this section, whichever is later,
the claimant shall provide the commissioner or self-insured
employer with a properly executed authorization for release of
information which shall be utilized by the commissioner or
self-insured employer to obtain necessary benefit entitlement and
amount information from the appropriate source. The
authorization for release of information shall be effective for
one year. Failure of the claimant to provide a properly executed
authorization for release of information shall allow the
commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefitsuntil the authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the
claimant upon the providing of the authorization for release of
information. If the commissioner or the self-insured employer is
required to submit a new authorization for release of information
to the appropriate source in order to receive information
necessary to comply with this section, the claimant shall provide
the new authorization for release of information within thirty
days of a request by the commissioner or self-insured employer.
Failure of the claimant to provide the new authorization for
release of information shall allow the commissioner or
self-insured employer with the approval of the commissioner to
discontinue the payment of applicable benefits until the
authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the
claimant upon the providing of the authorization for release of
information.
(f) Any benefit payments under the Social Security Act, or
any fund, policy or program as specified under subsection (b) of
this section which the claimant receives after the effective date
of this section and during a period in which the claimant also
receives unreduced workers' compensation benefits shall be
considered to create an overpayment of benefits for that period.
The commissioner or self-insured employer shall calculate the
amount of the overpayment and send a notice of overpayment and a
request for reimbursement to the claimant. Failure by the
claimant to reimburse the commissioner or self-insured employer
within thirty days after the mailing date of the notice ofrequest for reimbursement shall allow the commissioner or the
self-insured employer, with the approval of the commissioner, to
discontinue fifty percent of future benefits payments. The
benefit payments withheld shall be credited against the amount of
the overpayment. Payment of the appropriate benefit shall resume
when the total amount of the overpayment has been withheld. Any
self-insured employer taking a credit or making a reduction as
provided for in this subsection shall immediately report to the
commissioner the amount of the credit or reduction and, as
requested by the commissioner, furnish to the commissioner
satisfactory proof of the basis for a credit or reduction.
(g) Nothing in this section shall be considered to compel a
claimant to apply for early federal social security old-age
benefits or to apply for other early or reduced benefits.
(h) This section applies to awards of permanent total
disability made after the effective date of this section.
(i) The commissioner and the compensation programs
performance council shall promulgate the appropriate rules for
the interpretation, processing and enforcement of this section.
(j) If any portion of this section or any application of
this section is subsequently found to be unconstitutional or in
violation of applicable law, it shall not affect the validity of
the remainder of this section or such applications of the section
as are not unconstitutional or in such violation.
§23-4-24. Permanent total disability awards; retirement age;
limitations on eligibility and the introduction of
evidence; effects of other types of awards;
procedures; requests for awards; jurisdiction.
Notwithstanding any provision of this chapter to the
contrary, from and after the effective date of this section the
following provisions shall be in effect.
(a) Except as stated below, no claimant shall be awarded
permanent total disability benefits arising under subdivision (d)
or (n), section six or of section eight-c of this article who
terminates active employment and is receiving full old-age
retirement benefits under the Social Security Act, 42 U.S.C. 401
and 402. Any such claimant shall be evaluated only for the
purposes of receiving a permanent partial disability award
premised solely upon the claimant's impairments. This subsection
shall not be applicable in any claim in which the claimant has
completed the submission of his or her evidence on the issue of
permanent total disability prior to the later of the following:
Termination of active employment or the initial receipt of full
old-age retirement benefits under the Social Security Act. Once
the claimant has terminated active employment and has begun to
receive full old-age social security retirement benefits, the
claimant shall not be permitted to produce additional evidence of
permanent total disability before the commissioner, the office of
judges, the appeal board or the supreme court of appeals nor
shall such a claim be remanded for the production of such
evidence.
(b) For the purposes of subdivision (d), section six of this
article, the award of permanent partial disability benefits under
the provisions of section six-b of this article or under that
portion of section six-a of this article which awards twenty
weeks of benefits to a claimant who has occupationalpneumoconiosis but without measurable pulmonary impairment
therefrom shall not be counted towards the eighty-five percent
needed to gain the rebuttable presumption of permanent total
disability when such claimant has terminated active employment
and is receiving federal nondisability pension or retirement
benefits, including old-age benefits under the Social Security
Act. This subsection shall not affect any other awards of
permanent partial disability benefits and their use in achieving
the rebuttable eighty-five percent presumption.
(c) The office of judges shall not have jurisdiction to
initially hear and decide any claim pertaining in whole or in
part to subdivision (d) or (n), section six of this article. Any
claim for permanent total disability benefits arising under said
subdivisions shall first be presented to the commissioner as part
of the initial claim filing or by way of an application for
modification or adjustment pursuant to section sixteen of this
article and section one-a, article five of this chapter. The
office of judges may consider such a claim only after the
commissioner has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of
disability benefits for wages earned by claimant.
(a) After the effective date of this section, a reduction in
the amount of benefits as specified in subsection (b) of this
section shall be made whenever benefits are being paid for a
permanent total disability award regardless of when such benefits
were awarded. This section is not applicable to the receipt of
medical benefits or the payment therefor, the receipt of
permanent partial disability benefits, the receipt of benefits bypartially or wholly dependant persons, or to the receipt of
benefits pursuant to the provisions of subsection (e), section
ten of this article. Prior to the application of this section to
any claimant, the commissioner shall give the claimant notice of
the effect of this section upon a claimant's award if and when
such claimant later earns wages.
(b) Whenever applicable benefits are paid to a claimant with
respect to the same time period in which the claimant has earned
wages as a result of his or her employment, the following
reduction in applicable benefits shall be made. The claimant's
applicable monthly benefits and monthly net wages received from
the current employment shall be added together. If such total
exceeds by more than one hundred and twenty percent of the amount
of the claimant's monthly net wages earned during his or her last
employment prior to the award of permanent total disability
benefits, then such excess shall be reduced by one dollar for
each two dollars that the claimant's monthly net wages exceed the
one hundred and twenty percent level:
Provided,
That in no event
shall applicable benefits be reduced below the minimum weekly
benefits as provided for in subdivisions (b) and (d), section six
of this article.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commissioner of decision; procedures on
claims; objections and hearing; mediation.
(a) The commissioner shall have full power and authority to
hear and determine all questions within his or her jurisdiction.
In matters arising under articles three and four of this chapter,
the commissioner or a designated deputy shall promptly review andinvestigate all claims. The parties to a claim shall file such
information in support of their respective positions as they deem
proper. In addition, the commissioner or a designated deputy is
authorized to develop such additional information as he or she
deems to be necessary in the interests of fairness to the parties
and in keeping with the commissioner's fiduciary obligations to
the fund. With regard to any issue which is ready for a
decision, the commissioner or designated deputy shall explain the
basis of his or her decisions.
(b) Except with regard to interlocutory matters, upon making
any decision, upon the making or refusing to make any award, or
upon the making of any modification or change with respect to
former findings or orders, as provided by section sixteen,
article four of this chapter, the commissioner shall give notice,
in writing, to the employer, employee, claimant, as the case may
be, of his or her action, which notice shall state the time
allowed for filing an objection to such finding, and such action
of the commissioner shall be final unless the employer, employee,
claimant or dependant shall, within thirty days after the receipt
of such notice, object in writing, to such finding, and unless an
objection is filed within such thirty-day period, such finding or
action shall be forever final, such time limitation being hereby
declared to be a condition of the right to litigate such finding
or action and hence jurisdictional. Any such objection shall be
filed with the office of judges with a copy served upon the
commissioner and other parties in accordance with the procedures
set forth in sections one-g and one-h of this article.
(c) Where a finding or determination of the commissioner isprotested only by the employer, and the employer does not prevail
in its protest and, in the event the claimant is required to
attend a hearing by subpoena or agreement of counsel or at the
express direction of the commissioner, then such claimant in
addition to reasonable traveling and other expenses shall be
reimbursed for loss of wages incurred by the claimant in
attending such hearing.
(d) Once an objection has been filed with the office of
judges, the parties to the objection shall be offered an
opportunity for mediation of the disputed issue by the
commissioner. If all of the parties to the objection agree to
mediation, the commissioner shall designate a deputy who was not
involved in the original decision to act as mediator:
Provided,
That on issues related solely to the medical necessity of
proposed medical treatment or diagnostic services, the
commissioner shall offer the parties to the objection a selection
of names of medical providers in the appropriate specialty. The
parties shall then either agree upon a medical provider who shall
act as mediator or, in the absence of an agreement, the
commissioner shall select a medical provider who shall act as
mediator. In cases where issues of medical necessity are
intertwined with nonmedical treatment or nondiagnostic issues,
both a medical provider and a designated deputy shall act as
comediators and shall consider their respective issues. Neither
shall be empowered to overturn the decision of the other.
Upon entering into mediation, the parties shall inform the
office of judges of that action and the office of judges shall
stay further action on the objection.
The mediator shall solicit the positions of the parties and
shall review such additional information as the parties or the
commissioner shall furnish. The mediator shall then issue a
decision in writing with the necessary findings of fact and
conclusions of law to support that decision. If any party
disagrees with the decision, that party may note its objection to
the office of judges, the commissioner and the other parties, and
the office of judges shall lift the stay on the original protest.
The decision and any information introduced during the attempted
mediation shall be subject to consideration by the office of
judges in making its decision on the objection. Upon acceptance
by the parties of the result of the mediation, the office of
judges shall dismiss the objection with prejudice.
The mediator shall conduct the mediation in an informal
manner and without regard to the formal rules of evidence and
procedure. Once the parties agree to mediation, then the
agreement cannot be withdrawn.
(e) The panel of medical providers who shall serve as
mediators shall be selected and approved by the compensation
programs performance council. A medical provider serving as a
mediator shall have the same protections from liability as does
the commissioner with regard to his or her decisions including
coverage by the board of risk management which shall be provided
by the workers' compensation division.
§23-5-1b. Refusal to reopen claim; notice; objection.
If, however, in any case in which application for further
adjustment of a claim is filed under the next preceding section,
it shall appear to the commissioner that such application failsto disclose a progression or aggravation in the claimant's
condition, or some other fact or facts which were not theretofore
considered by the commissioner in his or her former findings, and
which would entitle such claimant to greater benefits than the
claimant has already received, the commissioner shall, within a
reasonable time, notify the claimant and the employer that such
application fails to establish a prima facie cause for reopening
the claim. Such notice shall be in writing stating the reasons
for denial and the time allowed for objection to such decision of
the commissioner. The claimant may, within thirty days after
receipt of such notice, object in writing to such finding and
unless the objection is filed within such thirty-day period, no
such objection shall be allowed, such time limitation being
hereby declared to be a condition of the right to such objection
and hence jurisdictional. Upon receipt of an objection, the
commissioner or office of judges shall afford the claimant an
evidentiary hearing as provided in section one or one-h of this
article.
§23-5-1h. Hearings on objections to commissioner's decisions by
office of administrative law judges.
On or after the first day of July, one thousand nine hundred
ninety-one, objections to a commissioner's decision made pursuant
to the provisions of section one of this article shall be filed
with the office of judges. Upon receipt of an objection, the
office of judges shall, within fifteen days from receipt thereof,
set a time and place for the hearing of evidence and shall notify
the commissioner of the filing of the objection. Hearings may be
conducted at the county seat of the county wherein the injuryoccurred, or at any other place which may be agreed upon by the
interested parties, and in the event the interested parties
cannot agree, and it appears in the opinion of the chief
administrative law judge or the chief administrative law judge's
authorized representative that the ends of justice require the
taking of evidence elsewhere, then at such place as the chief
administrative law judge or such authorized representative may
direct, having due regard for the convenience of witnesses. The
employer, the claimant and the commissioner shall be notified of
such hearing at least ten days in advance, and the hearing shall
be held within thirty days after the filing of the objection
unless such hearing be postponed by agreement of the parties or
by the chief administrative law judge or such authorized
representative for good cause. The commissioner shall be a party
to any proceeding under this article which involves a claim
chargeable against the workers' compensation fund, the disabled
workers' relief fund or such other fund as may then be under the
commissioner's management and control.
The office of judges shall keep full and complete records of
all proceedings concerning a disputed claim. All testimony upon
a disputed claim shall be recorded but need not be transcribed
unless the claim is appealed or in such other circumstances as,
in the opinion of the chief administrative law judge, may require
such transcription. Upon receipt of notice of the filing of an
objection, the commissioner shall forthwith forward to the chief
administrative law judge all records, or copies of such records,
in the commissioner's office which relate to the matter objected
to. All such records or copies thereof and any evidence taken athearings conducted by the office of judges shall constitute the
record upon which the matter shall be decided. The office of
judges shall not be bound by the usual common law or statutory
rules of evidence. At any time within thirty days after hearing,
if the chief administrative law judge or the chief administrative
law judge's authorized representative is of the opinion that the
facts have not been adequately developed at such hearing, he or
she may order supplemental hearings or obtain such additional
evidence as he or she deems warranted upon due notice to the
parties.
All hearings shall be conducted as determined by the chief
administrative law judge pursuant to the rules of practice and
procedure promulgated pursuant to section one-g of this article.
Upon consideration of the entire record, the chief administrative
law judge or an administrative law judge within the office of
judges shall, within thirty days after final hearing, render a
decision affirming, reversing or modifying the commissioner's
action. Said decision shall contain findings of fact and
conclusions of law and shall be mailed to all interested parties.
§23-5-6. Article applies to claims arising under §23-2-9.
The provisions of this article shall also apply to all
claims arising under section nine, article two of this chapter.
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