Senate Bill No. 250
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
__________
[Introduced February 2, 1995; referred to the
Committee on the Judiciary.]
__________
A BILL to repeal sections five-b and eighteen, article
two, chapter twenty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as
amended; to repeal section two, article two-a of
said chapter; to repeal section twenty-three,
article four of said chapter; to amend and reenact
section eight, article three, chapter twenty-two of
said code; to amend and reenact sections one,
eleven, thirteen and sixteen, article one, chapter
twenty-three of said code; to further amend said
article by adding thereto a new section, designated
section eighteen; to amend and reenact sections
one, one-d; three, four, five, nine, fourteen and
fifteen, article two of said chapter; to amend and
reenact section one, article two-a of said chapter;
to amend section one, article three of said
chapter; to further amend said article by adding thereto two new sections, designated sections four
and five; to amend and reenact sections one-a, one-
c, one-d, three, three-b, four, six, six-a, six-c,
seven, seven-a, nine, ten, fifteen, fifteen-b,
sixteen, eighteen, twenty-four and twenty-five,
article four of said chapter; to amend and reenact
sections one and two, article four-c of said
chapter; and to amend and reenact article five of
said chapter, all relating generally to workers'
compensation and reform thereof; proof of coverage
for mining permits; representation of the
commissioner; executive director of workers'
compensation division; release of information;
hearings; notice to parties and attorneys; crimes
and criminal penalties; venue; subpoenas of
division employees; coverage for volunteers;
premium taxes; failure to subscribe; consequences;
definitions; primary contractor liability; notice
of subcontractor default; forms; classification of
industries; premium tax setting methodologies;
defaulted employers; repayment agreements;
penalties; wage reports; amounts of premium taxes
to be filed; collections; rules; refunds of
deposits; self insurance generally; security; self
administration of benefits by employer; sale or
transfer of business; attachment of liens; assumption of predecessor's premium tax rate;
relief therefrom; subrogation; surplus fund; second
injury benefits determination; definitions;
possibility of cessation of application of second
injury reserve to regular subscribers; moneys from
chapter funds not abandoned property; interest on
chapter funds to be retained by said funds;
electronic invoices, payments and transfers;
mailing of reports of injuries; conditional order
of compensability; when back payments of disability
awards to be made; payments for health care
services and goods; generic drugs; out-of-state
health care providers; refusal to accept fee
schedule payments; assumption of payments by
claimant; exceptions; managed care organizations;
choice of health care providers; limitations
thereon; standards of care for health care
providers generally; funeral expenses; fee
schedules; criminal penalties; benefit rates;
cessation of payments at retirement age; disability
awards; medical impairment; medical panel;
standards of review; limits thereon; threshold for
requests for permanent total disability awards;
exceptions from reporting wages of certain
permanently disabled employees; standard of review
and limits thereon of decisions by occupational pneumoconiosis board; patient-physician privilege;
exceptions; cessation of certain permanent
disability benefits upon return to work; repeal of
certain benefits for dependents; time for filing
claims applications; reopening time limits and
expiration of right to reopen; time requirements
for decisions on reopening requests; consolidation
of disability requests; what awards qualify for
permanent total disability consideration; offset
for earnings; employers' excess liability fund;
sale or abolition thereof; parties to objections
and appeals; office of judges generally; correction
of decisions by division; processing of
applications for modifications of prior awards;
compromise and settlement; review and approval
thereof; continuance of office of judges and chief
administrative law judge; relationship thereof to
compensation programs performance council;
termination; salary; reports; employees; approval
of rules; appeals board; duties; reports;
employees; standards of review by appeals board and
supreme court of appeals; and remands.
Be it enacted by the Legislature of West Virginia:
That sections five-b and eighteen, article two,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be repealed; that section two, article two-a of said chapter
be repealed; that section twenty-three, article four of
said chapter be repealed; that section eight, article
three, chapter twenty-two of said code be amended and
reenacted; that sections one, eleven, thirteen and
sixteen, article one, chapter twenty-three of said code
be amended and reenacted; that said article be further
amended by adding thereto a new section, designated
section eighteen; that sections one, one-d, three, four,
five, nine, fourteen and fifteen, article two of said
chapter be amended and reenacted; that section one,
article two-a of said chapter be amended and reenacted;
that section one, article three of said chapter be
amended and reenacted; that said article be further
amended by adding thereto two new sections, designated
sections four and five; that sections one-a, one-c, one-
d, three, three-b, four, six, six-a, six-c, seven, seven-
a, nine, ten, fifteen, fifteen-b, sixteen, eighteen,
twenty-four and twenty-five, article four of said chapter
be amended and reenacted; that sections one and two,
article four-c of said chapter be amended and reenacted;
and that article five of said chapter be amended and
reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in
interest; duration of permits; proof of
insurance; termination of permits; permit
fees.
No person may engage in surface-mining operations
unless such person has first obtained a permit from the
director in accordance with the following:
(1) All permits issued pursuant to the requirements
of this article shall be issued for a term not to exceed
five years:
Provided, That if the applicant demonstrates
that a specified longer term is reasonably needed to
allow the applicant to obtain necessary financing for
equipment and the opening of the operation, and if the
application is full and complete for such specified
longer term, the director may extend a permit for such
longer term:
Provided, however, That subject to the
prior approval of the director, with such approval being
subject to the provisions of subsection (c), section
eighteen of this article, a successor in interest to a
permittee who applies for a new permit, or transfer of a
permit, within thirty days of succeeding to such
interest, and who is able to obtain the bond coverage of
the original permittee, may continue surface-mining and
reclamation operations according to the approved mining
and reclamation plan of the original permittee until such
successor's permit application or application for transfer is granted or denied.
(2) Proof of insurance is required on an annual
basis.
(3) A permit terminates if the permittee has not
commenced the surface-mining operations covered by such
permit within three years of the date the permit was
issued:
Provided, That the director may grant reasonable
extensions of time upon a timely showing that such
extensions are necessary by reason of litigation
precluding such commencement, or threatening substantial
economic loss to the permittee, or by reason of
conditions beyond the control and without the fault or
negligence of the permittee:
Provided, however, That
with respect to coal to be mined for use in a synthetic
fuel facility or specific major electric generating
facility, the permittee shall be deemed to have commenced
surface-mining operations at such time as the
construction of the synthetic fuel or generating facility
is initiated.
(4) Each application for a new surface-mining permit
filed pursuant to this article shall be accompanied by a
fee of one thousand dollars. All permit fees and renewal
fees provided for in this section or elsewhere in this
article shall be collected by the director and deposited
with the treasurer of the state of West Virginia to the
credit of the operating permit fees fund and shall be used, upon requisition of the director, for the
administration of this article.
(5) Prior to the issuance of any permit, the
director shall ascertain from the commissioner of the
division of labor whether the applicant is in compliance
with section fourteen, article five, chapter twenty-one
of this code. Upon issuance of the permit, the director
shall forward a copy to the commissioner of the division
of labor, who shall assure continued compliance under
such permit.
(6)
(A) Prior to the issuance of any permit, the
director shall ascertain from the commissioner of the
bureau of employment programs whether the applicant is in
compliance with the provisions of section five, article
two, chapter twenty-three of this code. 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 programs shall make response to the
division of environmental protection within fifteen
calendar days, otherwise failure to respond timely shall
be considered to indicate the applicant is in compliance
and such failure will not be used to preclude issuance of
the permit.
(B) It is a requirement of this article that each
operator comply with the provisions of section five, article two, chapter twenty-three of this code.
(C) Proof of good standing with the provisions of
section five, article two of chapter twenty-three of this
code is required to be provided by each operator to the
director on an annual basis in the same manner as
provided in subdivision two of this section regarding
proof of insurance.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Commissioner of the bureau of employment
programs; compensation programs
performance council; official seal;
continuation of authority of commissioner;
legal services; rules.
(a) The commissioner of the bureau of employment
programs appointed under the provisions of section one,
article two, chapter twenty-one-a of this code, has the
sole responsibility for the administration of this
chapter except for such matters as are entrusted to the
compensation programs performance council created
pursuant to section one, article three, chapter twenty-
one-a of this code. In the administration of this
chapter, the commissioner shall exercise all the powers
and duties described in this chapter and in article two
of said chapter. 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 Virginia
commissioner of employment programs shall be equal to the
original in evidence.
(b) Pursuant to the provisions of chapter four,
article ten of this code, the commissioner of the bureau
of employment programs shall continue to administer this
chapter until the first day of July, one thousand nine
hundred ninety-six, to allow the joint committee on
government operations to monitor compliance with
recommendations set forth in the full performance audit
of the office of the workers' compensation commissioner.
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.
(c) The commissioner may employ general counsel
and such additional attorneys as the commissioner finds
to be necessary. The general counsel may act to bring and
to defend actions on behalf of the commissioner in the
courts of this State, in federal or other states' courts,
or before administrative agencies of this State, other
states, or the federal government. In addition, the
commissioner may request the provision of legal services
from the attorney general or may contract with such other
attorneys as the commissioner may deem necessary.
§23-1-4. Office hours; records; confidentiality; exceptions.
(a) The offices of the
commissioner workers' compensation
division shall be open for the transaction of business between the
hours of eight-thirty o'clock a.m., and five o'clock p.m., of each
and every day, excepting Saturdays, Sundays and legal holidays, and
be open upon such additional days and at such additional times as the
commissioner division may elect
., and be in charge of his or
her the commissioner's secretary or some other competent person As
the chief executive officer of the bureau of employment programs,
the commissioner shall designate an executive director to serve as
the chief operational officer for the daily operations of the
workers' compensation division: Provided, That in any instance in
this chapter which refers to the commissioner's secretary, such
reference shall be taken to mean the executive director.
(b) Except as expressly provided for in this subsection,
information obtained
from regarding employers and claimants
pursuant to this chapter for the purposes of its administration
shall not be subject to the provisions of chapter twenty-nine-b of
this code unless such provisions are hereafter specifically made
applicable in whole or in part. Such information as may be
reasonably necessary may be released in formal orders or opinions
of any tribunal or court which is presented with an issue arising
under this chapter as well as in the presentations of the parties
before any such tribunal or court. Similarly, claimants or other
interested parties to an issue arising under this chapter may, upon
request, obtain information from the division's records to the
extent necessary for the proper presentation or defense of a claim
or other matter. Information may be released
to any requestor
pursuant to the provisions of chapter twenty-nine-b of this code
only if all identifying information has first been eliminated from
the records. Nothing in this subsection shall prevent the release
of information to another agency of the state or of the federal government for the legitimate purposes of those agencies:
Provided, That any such agency shall guarantee the confidentiality
of the information so provided to the fullest extent possible in
keeping with its own statutory and regulatory mandates. Nothing
in this section shall prevent the
commissioner division from
complying with any subpoena duces tecum:
Provided, however, That
the issuing tribunal or court shall take such actions as may be
proper to maintain the confidentiality of the information.
The
commissioner division may release, pursuant to a proper
request under the provisions of chapter twenty-nine-b of this code,
the following information:
(1) The base premium rate for a specific employer;
(2) Whether or not a specific employer has obtained coverage
under the provisions of this chapter;
(3) Whether or not a specific employer is in good standing or
is delinquent or in default according to the
commissioner's
division's records and the time periods thereof; and
(4) If a specific employer is delinquent or in default, what
the payments due the
commissioner division are and what the
components of that payment are including the time periods affected.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under
articles
one through five of this chapter, the
commissioner division may
cause depositions of witnesses residing within or without the state
to be taken in the manner prescribed by law for like depositions in
the circuit court, but such depositions shall be upon reasonable notice to claimant and employer or other affected persons or their
respective attorneys. The
commissioner division shall designate
the person to represent
him or her it for the taking of any such
deposition.
(b) The
commissioner division shall also have discretion to
accept and consider depositions taken within or without the state
by either the claimant or employer
or other affected person,
provided due and reasonable notice of the taking of such
depositions was given to the other
party, claimant or employer, as
the case may be, or his or her attorney parties or their attorneys,
if any:
Provided, That the
commissioner division, upon due notice
both to the employer and claimant to the parties, shall have
authority to refuse or permit the taking of such depositions or to
reject such depositions after the taking thereof, if
in his or her
opinion they were taken at such place or under such circumstances
as imposed an undue burden or hardship upon the
opposite party
other parties , and the
commissioner's division's discretion to
accept, refuse to approve, or reject such depositions shall be
binding in the absence of abuse of such discretion.
§23-1-13. Rules of procedure and evidence; persons authorized to
appear in proceedings; withholding of psychiatric and
psychological reports and providing summaries
thereof.
(a) The
commissioner workers' compensation division shall
adopt reasonable and proper rules of procedure, regulate and
provide for the kind and character of notices, and the service thereof, in cases of accident and injury to employees, the nature
and extent of the proofs and evidence, the method of taking and
furnishing the same to establish the rights to benefits or
compensation from the fund hereinafter provided for, or directly
from employers as hereinafter provided, as the case may require,
and the method of making investigations, physical examinations and
inspections, and prescribe the time within which adjudications and
awards shall be made.
(b) At hearings and other proceedings before the
commissioner
division or before the duly authorized representative of the
commissioner division, an employer who is a natural person may
appear, and a claimant may appear, only as follows:
(1) By an attorney duly licensed and admitted to the practice
of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice of
law, as amended;
(3) By a representative from a labor organization who has been
recognized by the
commissioner division as being qualified to
represent a claimant or who is an individual otherwise found to be
qualified by the
commissioner division to act as a representative.
Such representative shall participate in the presentation of facts,
figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such facts and
figures; or
(4) Pro se.
(c) At hearings and other proceedings before the
commissioner
division or before the duly authorized representative of the
commissioner division, an employer who is not a natural person may
appear only as follows:
(1) By an attorney duly licensed and admitted to the practice
of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice of
law, as amended;
(3) By a member of the board of directors of a corporation or
by an officer of the corporation, for purposes of representing the
interest of the corporation in the presentation of facts, figures
and factual conclusions as distinguished from the presentation of
legal conclusions in respect to such facts and figures; or
(4) By a representative from an employer service company who
has been recognized by the
commissioner division as being qualified
to represent an employer or who is an individual otherwise found to
be qualified by the
commissioner division to act as a
representative. Such representative shall participate in the
presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect
to such facts and figures.
(d) The
commissioner or his or her division or its
representative may require an individual appearing on behalf of a
natural person or corporation to produce satisfactory evidence that
he or she is properly qualified and authorized to so appear
pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not be
construed as being applicable to proceedings before the office of
judges pursuant to the provisions of article five of this chapter.
(f) At the direction of a treating or evaluating psychiatrist
or clinical doctoral level psychologist, a psychiatric or
psychological report concerning a claimant who is receiving
treatment or is being evaluated for psychiatric or psychological
problems may be withheld from the claimant. In that event, a
summary of the report shall be compiled by the reporting
psychiatrist or clinical doctoral level psychologist which summary
shall be provided to the claimant upon his or her request. Any
representative or attorney of the claimant must agree to provide
such a claimant with only the summary before the full report shall
be provided to the representative or attorney for his or her use in
preparing the claimant's case. Such a report shall only be
withheld from the claimant in those instances where the treating or
evaluating psychiatrist or clinical doctoral level psychologist
certifies that exposure to the contents of the full report is
likely to cause serious harm to the claimant or is likely to cause the claimant to pose a serious threat of harm to a third party.
(g) In any matter arising under articles one through five of
this chapter in which the division is required to give notice to a
party, if a party is represented by an attorney or other
representative, then notice to the attorney or other representative
shall be sufficient notice to the party so represented.
§23-1-16. Omission to subscribe; failure to report or perform
required duty; false testimony or statements; criminal
penalties.
(a) Any person, firm, partnership, company, corporation, or
association which is required by the provisions of this chapter to
subscribe to the worker's compensation fund and which knowingly and
willfully fails to subscribe thereto, or which knowingly and
willfully fails to make payments and reports as required by this
chapter within the time period specified by law 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.
Upon any second or more convictions under this subsection, any
individual so convicted shall be both confined in the penitentiary
for not less than one year and not more than three years and fined
not less than five thousand dollars and not more than twenty-five
thousand dollars. The venue for prosecution of any violation of
this subsection shall lie in either the county in which the
employer is located or in Kanawha county where the fund is located.
(b) Any person or firm, or the officer of any corporation, who knowingly and willfully makes a false report or statement under
oath, affidavit, or certification respecting any information
required to be provided under this chapter, 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 or
confined in the penitentiary for not more than three years, or
both.
§23-1-18. Division employees not subject to subpoena for workers'
compensation hearings.
No employee of the workers' compensation division shall be
compelled to testify as to the basis, findings, or reasons for any
decision or order rendered by the employee under this chapter in
any hearing conducted pursuant to article five of this chapter.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business
registration certificates.
(a) The state of West Virginia and all governmental agencies
or departments created by it, including county boards of education,
political subdivisions of the state, any volunteer fire department
or company
, any volunteer rescue squad or volunteer police
auxiliary unit organized under the auspices of a county commission,
municipality, or other government entity or political subdivision,
and other any volunteer local organization for emergency service
organizations as defined by article five, chapter fifteen of this
code,
volunteer organizations created or sponsored by government
entities, political subdivisions, or area or regional emergency medical services boards of directors in furtherance of the purposes
of the emergency medical services act of article four-c of chapter
sixteen of this code, and all persons, firms, associations and
corporations regularly employing another person or persons for the
purpose of carrying on any form of industry, service or business in
this state, are employers within the meaning of this chapter and
are hereby required to subscribe to and pay
premiums premium taxes
into the workers' compensation fund for the protection of their
employees and shall be subject to all requirements of this chapter
and all rules and regulations prescribed by the
commissioner
workers' compensation division with reference to rate,
classification and premium payment:
Provided, That such rates will
be adjusted by the
commissioner division to reflect the demand on
the compensation fund by the covered employer.
(b) The following employers are not required to subscribe to
the fund, but may elect to do so:
(1) Employers of employees in domestic services; or
(2) Employers of five or fewer full-time employees in
agricultural service; or
(3) Employers of employees while said employees are employed
without the state except in cases of temporary employment without
the state; or
(4) Casual employers. An employer is deemed to be a casual
employer when the number of his employees does not exceed three and
the period of employment is temporary, intermittent and sporadic in
nature and does not exceed ten calendar days in any calendar quarter; or
(5) Churches; or
(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged in
thoroughbred horse racing.
(c) Notwithstanding any other provision of this chapter to the
contrary, whenever there are churches in a circuit which employ one
individual clergyman and the payments to such clergyman from such
churches constitute his full salary, such circuit or group of
churches may elect to be considered a single employer for the
purpose of premium payment into the workers' compensation fund.
(d) Employers who are not required to subscribe to the
workers' compensation fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in such case shall be subject to all requirements of
this chapter and all rules and regulations prescribed by the
commissioner division with reference to rates, classifications and
premium payments and shall afford to them the protection of this
chapter, including section six of this article, but the failure of
such employers to choose to subscribe to and to pay premiums into
the fund shall not impose any liability upon them other than such
liability as would exist notwithstanding the provisions of this
chapter.
(e) Any foreign corporation employer whose employment in this
state is to be for a definite or limited period which could not be
considered "regularly employing" within the meaning of this section may choose to pay into the workers' compensation fund the premiums
herein provided for, and at the time of making application to the
commissioner workers' compensation division, such employer shall
furnish a statement under oath showing the probable length of time
the employment will continue in this state, the character of the
work, an estimate of the monthly payroll and any other information
which may be required by the
commissioner division. At the time of
making application such employer shall deposit with the
state
compensation commissioner division to the credit of the workers'
compensation fund the amount required by section five of this
article, which amount shall be returned to the employer if
his the
employer's application be rejected by the
commissioner division.
Upon notice to such employer of the acceptance of his application
by the
commissioner, division, he shall be an employer within the
meaning of this chapter and subject to all of its provisions.
(f) Any foreign corporation employer choosing to comply with
the provisions of this chapter and to receive the benefits
hereunder shall, at the time of making application to the
commissioner, division in addition to other requirements of this
chapter, furnish
such commissioner the division with a certificate
from the secretary of state, where such certificate is necessary,
showing that it has complied with all the requirements necessary to
enable it legally to do business in this state and no application
of such foreign corporation employer shall be accepted by the
commissioner division until such certificate is filed.
(g) The following employers may elect not to provide coverage to certain of their employees under the provisions of this chapter:
(1) Employers of employees who are officers of and
stockholders in a corporation qualifying for special tax treatment
under subchapter S of the Internal Revenue Code of the United
States may elect not to provide coverage to such employees; or
(2) If an employer is a partnership, sole proprietorship,
association, or corporation, such employer may elect not to include
as an "employee" within this chapter, any member of such
partnership, the owner of the sole proprietorship, or any corporate
officer or member of the board of directors of the association or
corporation. The officers of a corporation or an association shall
consist of a president, a vice-president, a secretary, and a
treasurer, each of whom shall be elected by the board of directors
at such time and in such manner as may be prescribed by the bylaws.
Such other officers and assistant officer as may be deemed
necessary may be elected or appointed by the board of directors or
chosen in such other manner as may be prescribed by the bylaws and,
if so elected, appointed, or chosen, such employer may elect not to
include any such officer or assistant officer as an "employee"
within the meaning of this chapter:
Provided, That except for
those persons who are members of the board of directors or who are
the corporation's or association's president, vice-president,
secretary, and treasurer and who may be excluded by reason of their
aforementioned positions from the benefits of this chapter even
though their duties, responsibilities, activities, or actions may
have a dual capacity of work which is ordinarily performed by an officer and also of work which is ordinarily performed by a worker,
an administrator, or an employee who is not an officer, no such
other officer or assistant officer who is elected or appointed
shall be excluded by election from coverage or be denied the
benefits of this chapter merely because he or she is such an
officer or assistant officer if, as a matter of fact:
(A) He or she is engaged in a dual capacity of having the
duties and responsibilities for work ordinarily performed by an
officer and also having duties and work ordinarily performed by a
worker, administrator, or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties
of a worker, an administrator, or an employee who is not an officer
and receives pay therefor in the capacity of an employee; or
(C) If he or she is engaged in an employment palpably separate
and distinct from his or her official duties as an officer of the
association or corporation.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the
commissioner division
written notice naming the positions not to be covered and shall not
include such "employee's" remuneration for premium purposes in all
future payroll reports, and such partner, proprietor or corporate
or executive officer shall not be deemed an employee within the
meaning of this chapter after such notice has been served.
Notwithstanding the provisions of subsection (g) of section five of
this article, if an employer has not subscribed to the fund even
though it is obligated to do so under the provisions of this article, then any such partner, proprietor or corporate or
executive officer shall not be covered and shall not receive the
benefits of this chapter.
(i) "Regularly employing" or "regular employment" shall mean
employment by an employer which is not a casual employer under this
section.
(j) Services performed by an individual for wages constitutes
employment which subjects employers to this chapter unless and
until it is shown to the satisfaction of the division that:
(1) Such individual has been and will continue to be free from
control or direction over the performance of such services, both
under his or her contract of services and in fact; and
(2) Such service is either outside the usual course of the
business for which such service is performed or that such service
is performed outside of all the places of business of the
enterprise for which such service is performed; and
(3) Such individual is customarily engaged in an
independently established trade, occupation, profession, or
business.
§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 under
subsection (a) of this section if it obtains from the
commissioner
subcontractor, prior to the initial performance of any work by the
subcontractor's employees
and within sixty days of the close of
each calendar quarter during which any work is performed 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 division shall be
entitled to collect only once for the amount of premiums, premium
deposits and interest due to the default, but the
commissioner
division may impose other penalties on the primary contractor or on
the subcontractor, or both.
(2) In order to continue avoiding liability under this
section, the primary contractor shall request that the commissioner
of the bureau of employment programs inform the primary contractor
of any subsequent default by the subcontractor. In the event that
the subcontractor does default, the commissioner shall then notify
the primary contractor of the default by placing a notice in the
first class United States mail, postage prepaid, and addressed to
the primary contractor at the address furnished to the commissioner
by the primary contractor. Such mailing shall be good and
sufficient notice to the primary contractor of the subcontractor's
default. However, the primary contractor shall not become liable
under this section until the first day of the calendar quarter
following the calendar quarter in which the notice is given and
then such liability shall only be for that following calendar
quarter and thereafter and only if the subcontract has not been terminated: Provided, That the commissioner shall be entitled to
collect only once for the amount of premiums, premium deposits and
interest due to the default, but the commissioner may impose other
penalties on the primary contractor or on the subcontractor, or
both.
(2) (A) Failure to obtain the certificate of good standing
within sixty days of the close of each calendar quarter during
which any work is performed by the subcontractor's employees shall
result in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes,
premium deposits, interest, and other penalties arising during the
life of the contract or due to work performed in furtherance of the
contract. The division shall be entitled to collect only once for
the amount of premium taxes, premium tax deposits, interest, and
other penalties due to the default, but the division may impose
other penalties on the primary contractor for its own misconduct or
on the subcontractor, or both.
(B) In the event that the primary contractor cannot obtain a
certificate of good standing from the subcontractor within the time
specified in paragraph (A) of this subdivision, the primary
contractor shall not become liable under this section until the
first day following the expiration of the subcontractor's last
issued certificate of good standing. Such liability of the primary
contractor shall be calculated through the date the subcontract is terminated and all work by the subcontractor's employees has
ceased.
(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 July, one thousand nine hundred
ninety-four ninety-five.
The prior provisions of this section as set forth in chapter one
hundred and seventy-one, acts of the legislature, one thousand nine
hundred and ninety-three shall remain in effect for contracts
entered into or extended prior to that date.
(e) The
commissioner division may take any action authorized
by section five-a of this article in furtherance of
his or her it's
efforts to collect amounts due from the primary contractor under
this section.
§23-2-3. Report forms and other forms for use of employers.
The
commissioner division shall prepare
and furnish report
forms for the use of
, and furnish the same to, employers subject to
this chapter. Every employer receiving from the
commissioner
division any form or forms with direction for completion and
returning
the same to the division shall return the same, within
the period fixed by the
commissioner division, completed so as to
answer fully and correctly all pertinent questions therein
propounded, and if unable to do so, shall give good and sufficient
reasons for such failure. Every employer subject to the provisions
of this chapter, shall make application to the
commissioner
division on the forms prescribed by the
commissioner division for
such purpose; and any employer who shall terminate his
or her
business or for any other reason is no longer subject to this
chapter shall so notify the
commissioner division on forms to be
furnished by the
commissioner division for that purpose.
§23-2-4. Classification of industries; rate of premiums; authority
to adopt various systems; accounts.
(a) The commissioner, in conjunction with the compensation
programs performance council, is authorized to establish by rule a
system for determining the classification and distribution into
classes of employment subject to this chapter, a system for
determining rates of premiums applicable to employment subject to
this chapter, a system of multiple policy options with criteria for subscription thereto, and criteria for an annual employer's
statement providing both benefits liability information and rate
determination information.
(1) In addition, the rule shall provide for, but not be
limited to:
(A) Rate adjustments by industry or individual employer,
including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the
quarter in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Such further matters that are necessary and consistent
with the goals of this chapter;
(2) The rule shall be consistent with the duty of the
commissioner and the compensation programs performance council to
fix and maintain the lowest possible rates of premiums consistent
with the maintenance of a solvent workers' compensation fund and
the reduction of any deficit that may exist in such fund and in
keeping with their fiduciary obligations to the fund;
(3) The rule shall be consistent with generally accepted
accounting principles; and
(4) The rule shall be consistent with classification and rate
making methodologies found in the insurance industry.
(b) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of July, one thousand nine hundred and ninety-six. Until the rule is finally
promulgated the prior provisions of this section as found in
chapter one hundred and seventy-one of the acts of the legislature,
one thousand nine hundred and ninety-three shall remain in effect.
(c) In accordance with generally accepted accounting
principles, the workers' compensation division shall keep an
accurate accounting of all money or moneys earned, due, and
received by the workers' compensation fund, and of the liability
incurred and disbursements made against the same; and an accurate
account of all money or moneys earned, due and received from each
individual subscriber, and of the liability incurred and
disbursements made against the same.
§23-2-5. Application; payment of premium taxes; gross wages;
payroll report; deposits; delinquency; default;
reinstatement; payment of benefits; notice to
employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation fund,
each employer who is required to subscribe to the fund or who
elects to subscribe to the fund shall pay
premiums premium taxes
calculated as a percentage of the employer's
gross wages payroll at
the rate determined by the
commissioner workers' compensation
division and then in effect. At the time each employer subscribes
to the fund, the application required by the
commissioner division
shall be filed and a premium deposit equal to the first quarter's estimated premium
tax payment shall be remitted. The minimum
quarterly premium to be paid by any employer shall be
ten
twenty-five dollars.
(1) Thereafter,
premiums premium taxes shall be paid
quarterly on or before the last day of the month following the end
of the quarter, and shall be the prescribed percentage of the
total
earnings entire gross wages of all employees
, from which net
payroll is calculated and paid, during the preceding
quarter:
Provided, That the division may permit employers who shall qualify
under the provisions of rules to be promulgated and made effective
on or after the first day of July, one thousand nine hundred and
ninety-six, by the compensation programs performance council to
report gross wages and pay premium taxes annually.
(2) At the time each premium is paid, every subscribing
employer shall make a
gross wages payroll report to the
commissioner division for the preceding quarter. The report shall
be on the form or forms prescribed by the
commissioner division,
and shall contain all information required by the
commissioner
division.
(3) After subscribing to the fund, each employer shall remit
with each
gross wages payroll report and premium
tax payment an
amount calculated to be sufficient to maintain a premium deposit
equal to the previous quarter's premium payment:
Provided, That
the
commissioner division may reduce the amount of the premium deposit required from seasonal employers for those quarters during
which employment is significantly reduced. The premium deposit
shall be credited to the employer's account on the books of the
commissioner division and used to pay premiums and any other sums
due the fund when an employer becomes delinquent
or in default as
provided in this article.
(4) All
premiums premium taxes and premium deposits required
by this article to be paid
by this chapter shall be paid by the
employers to the
commissioner, who, division, which shall maintain
a record of all sums so received.
On and after the first day of
October, one thousand nine hundred ninety-one, any Any such sum
mailed to the
commissioner division shall be deemed to be received
on the date the envelope transmitting it is postmarked by the
United States postal service. All sums received by the
commissioner division shall be deposited in the state treasury to
the credit of the workers' compensation division in the manner now
prescribed by law.
(5) The
commissioner division may encourage employer efforts
to create and maintain safe workplaces, to encourage loss
prevention programs, and to encourage employer provided wellness
programs, through the normal operation of the experience rating
formula, seminars and other public presentations, the development
of model safety programs and other initiatives as may be determined
by the commissioner
and the compensation programs performance council.
(b) Failure of an employer to timely pay premium
taxes, to
timely file a payroll report, or to maintain an adequate premium
deposit, shall cause the employer's account to become delinquent.
No employer will be declared delinquent or be assessed any penalty
therefor if the
commissioner division determines that such
delinquency has been caused by delays in the administration of the
fund. The
commissioner division shall, in writing, within sixty
days of the end of each quarter notify all delinquent employers of
their failure to timely pay premiums, to timely file a payroll
report, or to maintain an adequate premium deposit.
Each employer
who shall fail to timely file any quarterly payroll report or
timely pay the premium tax due with such report, or both, for any
quarter commencing on and after the first day of July, one thousand
nine hundred and ninety-five, shall pay a late reporting or payment
penalty of the greater of fifty dollars or ten percent of the
premium tax due, but not to exceed five hundred dollars, with such
report. Such late penalty shall be paid with the most recent
quarter's report and payment and is due when that quarter's report
and payment are filed. If such late penalty is not paid when due,
the same may be charged to and collected by the division from the
employer's premium deposit account or otherwise as provided for by
law. The notification shall demand the filing of the delinquent
payroll report and payment of delinquent
premiums, and/or payment of premium taxes, the penalty for late reporting or payment of
premium taxes or premium deposit, the interest penalty and an
amount sufficient to maintain the premium deposit, before the end
of the third month following the end of the preceding quarter.
Interest shall accrue and be charged The notification shall also
require payment of interest on the delinquent premium payment
and/or and premium deposit pursuant to section thirteen of this
article.
(c) Whenever the
commissioner division notifies an employer of
the delinquent status of
his or her its account, the notification
shall explain the legal consequence of subsequent default by
employers an employer required to subscribe to the
fund, fund and
the
effects legal consequences of termination of
any an electing
employer's account.
(d) Failure by the employer, who is required to subscribe to
the fund and who fails to resolve
his or her the delinquency within
the prescribed period, shall place the account in default and shall
deprive such
defaulting default employer of the benefits and
protection afforded by this chapter, including section six of this
article, and
he or she the employer shall be liable as provided in
section eight of this article. The
defaulting default employer's
liability under said
sections shall be retroactive to
twelve
o'clock p.m., midnight of the last day of the month following the
end of the quarter for which the delinquency occurs. The
commissioner division shall notify the
defaulting default employer
of the method by which the employer may be reinstated with the
fund. The
commissioner division shall also notify the employees of
such employer by written notice as hereinafter provided for in this
section.
(e) Failure by any employer, who voluntarily elects to
subscribe, to resolve
his or her the delinquency within the
prescribed period shall
place the account in default and shall
automatically terminate the election of such employer to pay into
the workers' compensation fund and shall deprive such
delinquent
employer
and the employees of the default elective employer of the
benefits and protection afforded by this chapter, including section
six of this article, and
he or she such employer shall be liable as
provided in section eight of this article. The
defaulting default
employer's liability under said section shall be retroactive to
twelve o'clock p.m., midnight of the last day of the month
following the end of the quarter for which the delinquency occurs.
Employees who were the subject of the default employer's voluntary
election to provide them the benefits afforded by this chapter
shall have such protection terminated at the time of their
employer's default.
(f) (1) Except as provided for in subdivision (3) of this
subsection, any employer who is required to subscribe to the fund
and who is in default on the effective date of this section or who subsequently defaults, and any employer who has elected to
subscribe to the fund
and who defaults and whose account is
terminated prior to the effective date of this section or whose
account is subsequently terminated, shall be restored immediately
to the benefits and protection of this chapter only upon the filing
of all delinquent payroll and other reports required by the
commissioner division and payment into the fund of all unpaid
premiums, an adequate premium deposit,
and accrued interest
and the
penalty for late reporting and payment. Interest shall be
calculated as provided for by section thirteen of this article. In
addition, for every defaulted or terminated employer whose default
or termination lasts for two consecutive quarters or who has
defaulted or been terminated for two quarters out of the preceding
eight consecutive quarters, then when any such employer's
application for reinstatement is filed or upon any such employer's
restoration to the benefits and protection of this chapter, for the
next eight quarters, including the quarter in which such
restoration occurs, or when any such employer's application for
reinstatement is filed, the employer shall pay
premiums premium
taxes to the
commissioner division at a penalty rate. The
applicable penalty premium
rate tax shall be determined by first
calculating the employer's premium under the provisions of section
four of this article, but including any applicable experience
modification, and then multiplying that premium by one hundred ten percent.
The
commissioner division shall not have the authority to
waive either accrued interest or the imposition of the penalty
premium rate. Any employer whose default or termination does not
last for two consecutive quarters or who has not been in default
two quarters out of the preceding eight consecutive quarters shall
not have a penalty premium rate imposed. The provisions of section
seventeen of this article apply to any action or decision of the
commissioner division under this section. For purposes of section
four of this article, the extra ten percent of premium constituting
the penalty shall not be used in determining any entitlement to
experience modification of the employer's premium rate for future
years.
(2) The
commissioner division shall have the authority to
restore a defaulted or terminated employer
under through a
reinstatement agreement. Such reinstatement agreement shall
require the payment in full of all premiums, premium deposits,
the
penalty for late reporting and payment, past accrued interest and
future interest calculated pursuant to the provisions of section
thirteen of this article. The reinstatement agreement shall not
permit any modification or waiver of the penalty premium rate
provided for in subdivision (1) of this subsection.
Notwithstanding the filing of a reinstatement application or the
entering into of a reinstatement agreement, the
commissioner division is authorized to file a lien against the employer as
provided
for by section five-a of this article. In addition, entry
into a
repayment reinstatement agreement is discretionary with the
commissioner. division. Such discretion shall be exercised in
keeping with the commissioner's fiduciary obligations to the
workers' compensation fund. Should the
commissioner division
decline to enter into a
repayment reinstatement agreement and
should the employer not comply with the provisions of subdivision
(1) of this subsection, then the
commissioner division may proceed
with any of the collection efforts provided for by section five-a
of this article or as otherwise provided for by this code.
Applications for reinstatement shall: (A) Be made upon forms
prescribed by the
commissioner; division; (B) include a report of
the gross
wages payroll of the employer
which had not been reported
to the division during the entire period of delinquency and
default, which
payroll gross wages information shall be certified
by the employer or its authorized agent; and (C) include a payment
of a portion of the liability equal to one half of one percent of
the gross payroll during the period of delinquency and default as
may be determined from time to time by rule but not to exceed the
amount of the entire liability due and owing for the period of
delinquency and default
; Provided, That the initial promulgation of
the rule may be accomplished by the use of an emergency rule. An
employer who applies for reinstatement shall be entitled to the benefits and protection of this chapter on the day
the a properly
completed and acceptable application
which is accompanied by the
application payment is received by the
commissioner: division:
Provided, That if the
commissioner division reinstates an employer
subject to the terms of a
repayment reinstatement agreement, the
subsequent failure of the employer to make scheduled payments or to
pay accrued or future interest in accordance with the
repayment
reinstatement agreement or to timely file current
quarterly reports
and to pay current quarterly premiums within the month following
the end of the quarter for which the report and payment are due, or
to otherwise maintain its account in good standing or, if the
repayment reinstatement agreement does not require earlier
restoration of the premium deposit, to restore the premium deposit
to the required amount by the end of the repayment period shall
cause the reinstatement application
or and the
repayment agreement,
or both, reinstatement agreement to be null, void and of no effect,
and the employer shall be denied the benefits and protection of
this chapter effective from the date that such employer's account
originally became delinquent.
(3) Any employer who fails to maintain
his or her its account
in good standing with regard to
subsequent premiums subsequent
premium taxes and premium deposits
after filing an application for
reinstatement and prior to the final resolution of an application
for reinstatement
by entering into a reinstatement agreement or by payment of the liability in full as provided for in subdivision (1)
of this subsection shall cause the reinstatement application to be
null, void and of no effect, and the employer shall be denied the
benefits and protection of this chapter effective from the date
that such employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a repayment agreement, th
e division 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 With the exception noted in subsection (h) of section
one of this article, no employee of an employer required by this
chapter to subscribe to the workers' compensation fund shall be
denied benefits provided by this chapter because the employer
failed to subscribe or because the employer's account is either
delinquent or in default.
(h) (1) The provisions of this section shall not deprive any
individual of any cause of action which has accrued as a result of
an injury or death which occurred during any period of delinquency
not resolved in accordance with the provisions of this article, or
subsequent failure to comply with the terms of the repayment
agreement.
(2) Upon withdrawal from the fund or termination of election
of any employer,
he or she the employer shall be refunded the balance due
him or her the employer of
his or her its deposit,
after deducting all amounts owed by
him or her the employer to the
workers' compensation fund
and other agencies of this state , and
the
commissioner division shall notify the employees of such
employer of said termination in such manner as
he or she the
division's representatives may deem best and sufficient.
(3) Notice to employees in this section provided for shall be
given by posting written notice that the employer is defaulted
under the compensation law of West Virginia, and in the case of
employers required by this chapter to subscribe and pay premiums to
the fund, that the defaulted employer is liable to
his or her its
employees for injury or death, both in workers' compensation
benefits and in damages at common law or by statute; and in the
case of employers not required by this chapter to subscribe and pay
premiums to the fund, but voluntarily electing to do so as herein
provided, that neither the employer nor the employees of such
employer are protected by said laws as to any injury or death
sustained after the date specified in said notice. Such notice
shall be in the form prescribed by the
commissioner division and
shall be posted in a conspicuous place at the chief works of the
employer, as the same appear in records of the
commissioner.
division. If said chief works of the employer cannot be found or
identified, then said notices shall be posted at the front door of
the courthouse of the county in which said chief works are located, according to the
division's records
in the commissioner's office.
Any person who shall, prior to the reinstatement of said employer,
as hereinbefore provided for, or prior to sixty days after the
posting of said notice, whichever shall first occur, remove,
deface, or render illegible said notice, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not to
exceed five hundred dollars, and said notice shall state this
provision upon its face. The
commissioner division may require any
sheriff, deputy sheriff, constable or other official of the state
of West Virginia, who may be authorized to serve civil process, to
post such notice and to make return thereof of the fact of such
posting to the
commissioner division, and any failure of such
officer to post any notice within ten days after he or she shall
have received the same from the
commissioner division, without just
cause or excuse, shall constitute a willful failure or refusal to
perform a duty required of him or her by law within the meaning of
section twenty-eight, article five, chapter sixty-one of this code.
Any person actually injured by reason of such failure shall have an
action against said official, and upon any official bond he or she
may have given, for such damages as such person may actually have
incurred, but not to exceed, in the case of any surety upon said
bond, the amount of the penalty of said bond. Any official posting
said notice as herein required shall be entitled to the same fee as
is now or may hereafter be provided for the service of process in suits instituted in courts of record in the state of West Virginia,
which fee shall be paid by the
commissioner division out of any
funds at
his or her its disposal, but shall be charged by
him or
her the division against the account of the employer to whose
delinquency such notice relates.
§23-2-9. Election of employer to be self insured and to provide
own system of compensation; mandatory participation
in second injury reserve; exceptions; catastrophe
coverage; self administration.
(a) Notwithstanding anything to the contrary stated elsewhere
in this chapter, the following types of employers may apply for
permission to self insure their workers' compensation risk
including their risk of catastrophic injuries. Except as provided
for in subsection (e) of this section, no employer may self insure
its second injury risk.
(1) The types of employers are:
(A) any employer who is of sufficient capability and financial
responsibility to ensure the payment to injured employees and the
dependents of fatally injured employees of benefits provided for in
this chapter at least equal in value to the compensation provided
for in this chapter; or
(B) Any employer of such capability and financial
responsibility who maintains its own benefit fund or system of
compensation to which its employees are not required or permitted to contribute and whose benefits are at least equal in value to
those provided for in this chapter.
(2) In order to be approved for self insurance status, the
employer must:
(A) have an effective health and safety program at its
workplaces either within or without this state; and
(B) Provide security or bond in an amount to be determined by
the compensation programs performance council which shall balance
the employer's financial condition based upon an analysis of its
audited financial statements and the full accrued value based upon
generally accepted accounting principles of the employer's existing
and expected liability; and
(C) Security or bond which may be in such form as the
commissioner and the compensation programs performance council
created pursuant to section one of article three of chapter twenty-
one-a of this code permits.
(3) Any employer whose record upon the books of the division
shows a liability, as determined on an accrued basis against the
workers' compensation fund incurred on account of injury to or
death of any of the employer's employees, in excess of premiums
paid by such employer, shall not be granted the right, individually
and directly or from such benefit funds or system of compensation,
to be self insured until the employer has paid into the workers'
compensation fund the amount of such excess of liability over premiums paid, including the employer's proper proportion of the
liability incurred on account of catastrophes or second injuries as
defined in section one of article three of this chapter and charged
against such fund.
(4) Upon a finding that the employer has met all of the
requirements of this section, the employer may be permitted self
insurance status. An annual review of each self insurer's
continuing ability to meet its obligations and the requirements of
this section shall be made by the workers' compensation division.
This review shall include a re-determination of the amount of
security or bond which shall be provided by the employer. Failure
to provide any new amount or form of security or bond shall cause
the employer's self insurance status to be terminated. The
security or bond provided by employers prior to the effective date
of this section shall continue in full force and effect until the
performance of the employer's annual review and the entry of any
appropriate decision on the amount or form of the employer's
security or bond.
(5) Whenever a self insured employer shall furnish security or
bond, including replacement and amended bonds and other securities,
as security to ensure the employer's or guarantor's payment of all
obligations under this chapter for which the security or bond was
furnished, such security or bond shall be in the most current form
or forms approved and authorized by the division for use by the employer or its guarantors, surety companies, banks, financial
institutions or others in its behalf for such purpose.
(b) Each self insured employer shall, on or before the last
day of the first month of each quarter, file with the division a
certified statement of the total gross wages and earnings of all of
the employer's employees subject to this chapter for the preceding
quarter. Each self insured employer shall pay into the workers'
compensation fund as portions of its self insured premium tax:
(1) A sum sufficient to pay the employer's proper portion of
the expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of
the expense of claims for those employers who are in default in the
payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of the
expenses of the disabled workers' relief fund; and
(4) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter's payment of each of the
foregoing three sums.
(c) The remaining portion of the self insurer's premium tax
shall be paid in arrears on behalf of and for the benefit of the
workers' compensation fund, in lieu of direct premium tax payments
to the fund, in advance, to the employer's injured employees or
dependents of fatally injured employees as benefits provided for by
this chapter including second injury benefits and catastrophic injury benefits, if applicable. If an employer defaults in the
payment of any portion of its self insured premium taxes, the
division shall determine the full accrued value based upon
generally accepted accounting principles of the employer's
liability. The amount so determined shall then be assessed against
the employer and the division shall demand and collect the present
value of such defaulted tax liability. Interest shall accrued upon
the demanded amount as provided for in section thirteen of this
article until the premium tax is fully paid. Such premium tax
assessments are special revenue taxes under and according to the
provisions of state workers' compensation law and are deemed to be
tax claims, as priority claims or administrative expense claims
according to those provisions under the law provided in the United
States bankruptcy code. In addition, as the same was previously
intended by the prior provisions of this section, this amendment
and reenactment is for the purpose of clarification of the taxing
authority of the workers' compensation division.
(d) Each self insured employer shall elect whether or not to
self insure its catastrophic injury risk as defined in subsection
(c) of section one of article three of this chapter.
(1) If the employer does not elect to self insure its
catastrophic risk, then the employer shall pay premium taxes for
this coverage in the same manner as is provided for in section four
of this article and in rules adopted to implement that section. Until such rules are adopted, the employer's premium taxes shall be
determined in accordance with the provisions of chapter one hundred
seventy-four, acts of the legislature, one thousand nine hundred
and ninety-one. If the employees of such an employer suffer injury
or death from a catastrophe, then the payment of the resulting
benefits shall be made from the catastrophe reserve of the surplus
fund provided for in subsection (b) of section one of article three
of this chapter. Such and employer's catastrophic liability shall
not be included in the liabilities upon which the employer's
security or bond is determined in subsection (a) of this section.
(2) If an otherwise self insured employer elects to self
insure its catastrophic risk, then the security or bond required in
subsection (a) of this section shall include the liability for the
catastrophic risk.
(e)(1) Any self insured employer who was, prior to the
effective date of this section, permitted to self insure its second
injury risk as defined in subsection (d) of section one of article
three of this chapter, may elect to continue to self insure its
second injury risk for so long as it meets the requirements of this
chapter. Any employer which was previously permitted to self
insure its second injury risk who then elects to terminate that
self insurance status shall not thereafter be permitted to self
insure its second injury risk.
(2) For those employers previously permitted to self insure their second injury risks, the amount of the security or bond
required in subsection (a) of this section shall include the
liability for that risk. All benefits provided for by this chapter
which are awarded to the employer's employees which constitute
second injury life awards shall then be paid by the employer and
not the division.
(3)(A) For those employers which do not self insure their
second injury risk, the premium tax for second injury coverage
shall be determined by the rules which implement section four of
this article. Such rules may provide for merit rate adjustments of
the amount of premium tax to be paid based upon the accrued costs
to be determined under generally accepted accounting principles of
second injury benefits paid and to be paid to the employer's
employees. Until such rules are adopted, the employer's premium
taxes shall be determined in accordance with the provisions of
chapter one hundred seventy four, acts of the legislature, one
thousand nine hundred ninety-one.
(B) In case there is a second injury to an employee of any
employer making such second injury premium tax payments, the
employer shall be liable to pay compensation or expenses arising
from or necessitated by the second injury and such compensation and
expenses shall be charged against the employer. After the
completion of these payments, the employee shall be paid the
remainder of the compensation and expenses that would be due for permanent total disability from the second injury reserve of the
surplus fund. Such additional compensation and expenses shall not
be charged against such employer.
(f) The commissioner and the compensation programs performance
council may create, implement, establish, and administer a
perpetual self insurance security risk pool of funds, sureties,
securities, insurance provided by private insurance carriers or
other states' programs, and other property, of both real and
personal properties, to secure the funded, unfunded, past, present,
and future liabilities for the payment of obligations of self
insured employers. If any such self insured employer should
default on its obligations, then the risk pool would make payment
to the workers' compensation fund and the surplus fund for any
expenditures needed therefrom to make payment upon the self
insurer's defaulted obligation. Self insured employers shall
participate in such risk pool and shall or may become jointly and
severally liable for the obligations and default liabilities of
others in the security risk pool according to the rules promulgated
to create, implement, and operate such a risk pool. To create and
fund such a risk pool, the division may either assess each self
insured employer in proportion according to each employer's portion
of the unsecured obligation and liability or may assess according
to some other method provided for by rule which shall properly
create and fund such risk pool to serve the needs of employees, employers, and the workers' compensation fund by providing adequate
security. In funding such security risk pool, the division may use
any assessments, premium tax assessments and revenues and
appropriations as may be made available to the division.
(g) Any self insured employer which has had a period of
inactivity due to the nonemployment of employees which results in
its reporting of no wages on quarterly reports to the division for
a period of four or more consecutive quarters shall have its status
at the division inactivated and shall be required to apply for
reactivation to status as a self insured employer prior to its
reemployment of employees. Despite such inactivation, the self
insured employer shall continue to make payments on all awards for
which it is responsible. Upon application for reactivation of its
status as an operating self insure employer, the employer must
document that it meets the eligibility requirements needed to
maintain self insured status under this section and any rules
adopted to implement it. If the employer is unable to requalify
and obtain approval for reactivation, the employer shall, effective
with the date of employment of any employee, become a subscriber to
the workers' compensation fund, but shall continue to be a self
insurer as to the prior period of active status and to furnish
security or bond and meet its prior self insurance obligations.
(h) In any case under the provisions of this section that
shall require the payment of compensation or benefits by an employer in periodical payments and the nature of the case makes it
possible to compute the present value of all future payments, then
the division may, in its discretion, at any time compute and permit
or require to be paid into the workers' compensation fund an amount
equal to the present value of all unpaid future payments on the
award or awards for which liability exists in trust. Thereafter,
such employer shall be discharged from any further portion of
premium tax liability upon such award or awards and payment of the
award or awards shall be assumed by the division.
(i) Any employer subject to this chapter, who shall elect to
carry the employer's own risk by being self insured and who has
complied with the requirements of this section and of any
applicable rules, shall not be liable to respond in damages at
common law or by statute for the injury or death of any employee,
however occurring, after such election's approval and during the
period that the employer is allowed to carry the employer's own
risk.
(j) The commissioner and the compensation programs performance
council are authorized to develop and implement a program whereby
approved self insured employers may administer the delivery of
workers' compensation benefits to their injured employees and to
the dependents of fatally injured employees. The program may
provide for certain benefits to be administered by the self insured
employer and others to be retained by the division. The program may provide that the self insured employer administer part of a claim
with the remainder to be administered by the division. The program
may permit the self insured employer may make any decision under
article four of this chapter that is entrusted to the division,
including the initial ruling on the compensability of a claim, in
the same manner and in the same time as specified in that article.
The employer shall utilize the forms used by the division unless
the division approves the use of other forms. Any decision that is
made by the self insured employer shall be in writing and shall
contain appropriate findings of fact and conclusions of law that
are relied upon for the decision.
(1) Any decision that is made by the self insured employer, if
it had been made by the division and would have been subject to
objection by the claimant pursuant to section one of article five
of this chapter, may be objected to by the claimant to the office
of judges in the same manner and in the same time as if the
objection had been made to a decision of the division. Appeals may
then be made by the self insured employer, the claimant, or the
division to the appeals board in the same manner as any other
decision by the office of judges. The division shall be a party to
any such objection or appeal.
(2) The program shall provide for a thorough and continuing
quality review and oversight by the division of the self insured
employer's administration of workers' compensation benefits. Any employer not meeting those standards shall have its privilege to
administer its own program revoked by the division. Any such
revocation shall be subject to the employer's right to request a
hearing on the revocation pursuant to section seventeen of this
article. In addition, the program shall provide for a system of
financial penalties that may be imposed upon the employer if it is
found to have acted in an arbitrary or capricious manner or in a
manner so as to deliberately delay the delivery of benefits to a
claimant. Any such financial penalty may not exceed twice the value
of the benefit in question or, if such value is not clearly stated,
the penalty shall not exceed twice the employee's or the deceased
employee's preinjury gross wages for the equivalent time period
covered by the abusive action. The program may specify that the
office of judges may make decisions concerning a claimant's
allegations of such abuse in claims that are before that office.
Appeals from any such decisions by the office of judges shall be
made to the appeals board in the same manner as other decisions are
appealed. The program shall also provide for a hearings and
decision process should similar allegations be made to the division
against any employer. In that event, the hearings shall also be
conducted in accordance with section seventeen of this article.
(3) The program shall specify the requirements that must be
demonstrated by the self insured employer and any third party
administrator that will assist the employer in its delivery of benefits in order to fully substantiate the employer's ability to
effectively and efficiently deliver workers' compensation benefits
in a timely manner. The program shall provide for a reporting
system by which the self insured employer shall record and document
information specified in the program and for its timely submittal
to the division. In addition to such standardized reports that the
division may require, the division may, from time to time, request
that special reports be provided to it for research and other
purposes.
§23-2-14. Sale or transfer of business; attachment of lien for
premium, etc., payments due; criminal penalties for
failure to pay; creation and avoidance or
elimination of lien; enforcement of lien; successor
liability; enforcement of lien.
(a) If any employer
is required to subscribe to the workers'
compensation fund pursuant to section one of this article and does
not elect to provide the employer's own system of compensation
pursuant to section nine of this article, and shall sell or
otherwise transfer substantially all of the employer's assets, so
as to give up substantially all of the employer's capacity and
ability to continue in the business in which the employer has
previously engaged, then
: such
(1) Such employer's
premiums, premium taxes, premium deposits, interest, and
claims losses and other payments owed to the division
shall
become be due and owing to the
commissioner division upon the
execution of the agreement of sale or other transfer
;
, In addition, any (2) Any repayment agreement entered into by
the employer with the
commissioner division pursuant to section
five of this article shall terminate upon the execution of the
aforesaid agreement of sale or other transfer and all amounts owed
to the
commissioner division but not yet paid shall become due
; and
(3) Upon execution of an agreement of sale or other transfer,
as aforesaid, the
commissioner division shall continue to have a
lien, as provided for in section five-a of this article, against
all of the
other remaining property of the employer
and as well as
all of the sold or transferred assets, which lien shall constitute
a personal obligation of the employer.
As used in this section,
the term "assets" means all property of whatever type in which the
employer has an interest including, but not limited to, good will,
access to leases such as the right to sublease, assignment of
contracts for the sale of products, inventory or stock of goods in
bulk, or accounts receivable.
(b) Notwithstanding any provisions of section five-a of this
article to the contrary, in the event that a new employer acquires
by sale or other transfer or assumes all or substantially all of a
predecessor employer's assets, then:
(1) Any liens for payments owed to the division for premium taxes, premium deposits, interest, penalty premium rate or other
payments owed to the division by the predecessor employer shall be
extended to the successor employer;
(2) Any liens held by the division against the predecessor
employer's property shall be extended to all of the assets of the
successor employer;
(3) Liens acquired in the manner described in subdivisions one
and two of this subsection shall be enforceable by the division to
the same extent as provided for the enforcement of liens against
the predecessor employer in section five-a of this article; and
(4) Prior defaults by a predecessor employer shall accrue to
the new employer for purposes of determining whether the new
employer is subject to the penalty premium rate provisions of
subdivision one of subsection (f) of section five of this article.
(c) Notwithstanding the provisions of section five-a of this
article to the contrary, if any employer as described in subsection
(a) of this section shall sell or otherwise transfer a portion of
the employer's assets so as to affect the employer's capacity to do
business, then:
(1) Such employer's premium taxes, premium deposits, interest,
penalty premium rate, and other payments owed to the division shall
be due and owing to the division upon the execution of the
agreement of sale or other transfer;
(2) Any repayment agreement entered into by the employer with the division pursuant to section five of the article shall
terminate upon the execution of the aforesaid agreement of sale or
other transfer and all amounts owed to the division but not yet
paid shall become due; and
(3) Upon execution of an agreement of sale or other transfer,
as aforesaid, the division shall continue to have a lien, as
provided for in section five-a of this article, against all of the
remaining property of the employer as well as all the sold or
transferred assets, which lien shall constitute a personal
obligation of the employer.
(b) (d) If an employer subject to
subsection subsections (a)
,
(b), or (c) of this section pays to the
commissioner division,
prior to the execution of an agreement of sale or other transfer,
a sum sufficient to retire all of the indebtedness that the
employer would owe at the time of the execution, then the
commissioner division shall issue a certificate to the employer
stating that the employer's account is in good standing with the
commissioner division and that the assets may be sold or otherwise
transferred without the attachment of the
commissioner's division's
lien.
An agreement of sale or other transfer may provide for the
creation of an escrow account into which the employers shall pay
the full amount owed to the division. The subsequent timely payment
of that full amount to the division shall operate to place both
employers in good standing with the division to the extent of the predecessor employer's liabilities. Retroactive to the date of
sale or other transfer. In the event that the employer would not
owe any sum to the
commissioner division on the aforesaid date of
execution, then a certificate shall also be issued to the employer
upon the employer's request stating that the employer's account is
in good standing with the
commissioner division and that the assets
may be sold or otherwise transferred without the attachment of the
commissioner's division's lien.
(e) As used in this article, the terms assets means all
property of whatever type in which the employer has an interest
including, but not limited to, good will, business assets,
customers, clients, contracts, access to leases such as the right
to sublease, assignment of contracts for the sale of products,
operations, stock of goods or inventory, accounts receivable,
equipment, or transfer of substantially all of its employees.
(f) The transfer of any assets of the employer shall be
presumed to be a transfer of all or substantially all of the assets
if the transfer affects the employer's capacity to do business.
The presumption can be overcome upon petition presented and an
administrative hearing in accordance with section fifteen of this
article and in consideration of the factors thereunder.
(g) The foregoing provisions are expressly intended to impose
upon such successor employers the duty of obtaining from the
division or predecessor employer, prior to the date of such acquisition, a valid "certificate of good standing to transfer a
business or business assets" to verify that the predecessor
employer's account with the division is in good standing.
§23-2-15. Liabilities of successor employer; waiver of payment by
division; assignment of predecessor employer's
premium rate to successor.
(a) Notwithstanding any provisions of section five-a of this
article to the contrary, in the event that a new employer acquires
by sale or other transfer or assumes all or substantially all of a
predecessor employer's actual business, business assets, customers,
clients, contracts, operations, stock of goods, equipment or
substantially all of its employees, then any liens for payments
owed to the commissioner for premiums, premium deposits, interest
or claims losses by the predecessor employer or any liens held by
the commissioner against the predecessor employer's property shall
be extended to the assets acquired as the result of the sale or
transfer by the new employer and shall be enforceable against such
assets by the commissioner to the same extent as provided for the
enforcement of liens against the predecessor employer pursuant to
said section. As used in this section, the term "assets" is
defined as provided in section fourteen of this article. The
foregoing provisions are expressly intended to impose upon such new
employers the duty of obtaining, prior to the date of such
acquisition, verification from the commissioner that the predecessor employer's account with the commissioner is in good
standing.
(b) (a) At any time prior to or following the acquisition
described in
subsection subsections (a)
, (b), or (c) of
this
section
fourteen of this article, the buyer or other recipient may
file a certified petition with the
commissioner division requesting
that the
commissioner division waive the payment by the buyer or
other recipient of premiums, premium deposits, interest and
imposition of the modified rate of premiums attributable to the
predecessor employer, or any combination thereof. The
commissioner
division shall review the petition by considering the
six seven
factors set forth below:
(1) The exact nature of the default;
(2) The amount owed to the
commissioner division;
(3) The solvency of the fund;
(4) The financial condition of the buyer or other recipient;
(5) The equities exhibited towards the fund by the buyer or
other recipient during the acquisition process;
and
(6) The potential economic impact upon the state and the
specific geographic area in which the buyer or other recipient is
to be or is located, if the acquisition were not to occur
; and
(7) Whether the assets are purchased in an arms-length
transaction.
Unless requested by a party or by the
commissioner division, no hearing need be held on the petition. However, any decision
made by the
commissioner division on the petition shall be in
writing and shall include appropriate findings of fact and
conclusions of law. Such decision shall be effective ten days
following notice to the public of the decision unless an objection
is filed in the manner herein provided. Such notice shall be given
by the
commissioner's division's publication of a
Class I legal
advertisement which complies with the provisions of article three,
chapter fifty-nine of this code. copy of the decision in the state
resister pursuant to article two of chapter twenty-nine-a of this
code. The publication shall include a
summary of the decision and
a statement advising that any person objecting to the decision must
file, within ten days after publication of the notice, a verified
response with the
commissioner division setting forth the objection
and the basis therefor.
The publication area shall be Kanawha
County, West Virginia. If any such objection is filed, the
commissioner division shall hold an administrative hearing,
conducted pursuant to article five, chapter twenty-nine-a of this
code, within fifteen days of receiving the response unless the
buyer or other recipient consents to a later hearing. Nothing in
this subsection shall be construed to be applicable to the seller
or other transferor or to affect in any way a proceeding under
sections five and five-a of this article.
(c) (b) In the factual situations set forth in
subsection (a) of this section subsections (a), (b), or (c) of section fourteen of
this article, if the predecessor's modified rate of premium, 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
, if the new employer
does not already have a
modified rate of premium, it shall also assume the predecessor
employer's modified rates for the payment of premiums as determined
under sections four and five of this article until sufficient time
has elapsed for the new employer's experience record to be combined
with the experience record of the predecessor employer
so as to
calculate the new employer's own modified rate of premium tax.
§23-2A-1. Subrogation; limitations; effective date.
(a) Where a compensable injury or death is caused, in whole or
in part, by the act or omission of a third party, the injured
worker, or if he or she is deceased or physically or mentally
incompetent, his
or her dependents or personal representative shall
be entitled to compensation under the provisions of this chapter
and shall not by having received same be precluded from making
claim against said third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or her
personal representative makes a claim against said third party and
recovers any sum thereby, the
commissioner division or a self-insured employer shall be allowed
statutory subrogation with regard
to
all indemnity benefits, medical benefits
, and other workers'
compensation benefits paid as of the date of the recovery:
Provided, That under no circumstances shall any moneys received by
the
commissioner division or self-insured employer as subrogation
to
indemnity benefits, medical benefits
, and other workers'
compensation benefits expended on behalf of the injured or deceased
worker exceed fifty percent of the amount received from the third
party as a result of the claim made by the injured worker, his or
her dependents or personal representative
, after payment of
attorney's fees and costs, if such exist.
The division or
self-insured employer shall permit the deduction from the amount
received of a reasonable attorneys' fee and costs, but the amount
received shall not be reduced due to a less than full recovery by
the injured worker or his or her dependents or personal
representative; that is, the right of subrogation created by this
article is statutory subrogation and not equitable subrogation.
(c) In the event that an injured worker, his or her dependents
or personal representative makes a claim against a third party,
there shall be, and there is hereby created, a statutory
subrogation lien upon such moneys received which shall exist in
favor of the
commissioner division or self-insured employer. Any
injured worker, his or her dependents or personal representative
who receives moneys in settlement in any manner of a claim against a third party shall remain subject to the subrogation lien until
payment in full of the amount permitted to be subrogated under
subsection (b) of this section is paid.
(d) The right of subrogation granted by the provisions of this
section shall not attach to any claim arising from a right of
action which arose or accrued, in whole or in part, prior to the
effective date of this article
.: Provided, That the prior
provisions of this section as set forth in chapter twelve of the
acts of the legislature, one thousand nine hundred and ninety,
second extraordinary session, shall remain in effect for claims
arising after the effective date of that chapter and before the
effective date of this section.
§23-3-1. Compensation fund; surplus fund; catastrophe and
catastrophe payment defined; second injury and second
injury reserve; compensation by employers.
(a) The commissioner shall establish a workers' compensation
fund from the premiums and other funds paid thereto by employers,
as herein provided, for the benefit of employees of employers who
have paid the premiums applicable to such employers and have
otherwise complied fully with the provisions of section five,
article two of this chapter, and for the benefit, to the extent
elsewhere in this chapter set out, of employees of employers who
have elected, under section nine, article two of this chapter, to
make payments into the surplus fund hereinafter provided for, and for the benefit of the dependents of all such employees, and for
the payment of the administration expenses of this chapter
and
shall promulgate legislative rules pursuant to chapter twenty-
nine-a of this code with respect to the collection, maintenance and
disbursement of such fund not in conflict with the provisions of
this chapter.
(b) A portion of all premiums that shall be paid into the
workers' compensation fund by subscribers not electing to carry
their own risk under section nine, article two of this chapter,
shall be set aside to create and maintain a surplus fund to cover
the catastrophe hazard, the second injury hazard, and all losses
not otherwise specifically provided for in this chapter. The
percentage to be set aside shall be determined
by the commissioner
as necessary pursuant to the rules adopted to implement section
four of article two of this chapter and shall be in an amount
sufficient to maintain a solvent surplus fund. All interest earned
on investments by the workers' compensation fund, which is
attributable to the surplus fund, shall be credited to the surplus
fund.
(c) A catastrophe is hereby defined as an accident in which
three or more employees are killed or receive injuries, which, in
the case of each individual, consist of: Loss of both eyes or the
sight thereof; or loss of both hands or the use thereof; or loss of
both feet or the use thereof; or loss of one hand and one foot or the use thereof. The aggregate of all medical and hospital bills
and other costs, and all benefits payable on account of a
catastrophe is hereby defined as "catastrophe payment". In case of
a catastrophe to the employees of an employer who is an ordinary
premium-paying subscriber to the fund, or to the employees of an
employer who, having elected to carry the employer's own risk under
section nine, article two of this chapter, has heretofore elected,
or may hereafter elect, to pay into the catastrophe reserve of the
surplus fund under the provisions of that section, then the
catastrophe payment arising from such catastrophe shall not be
charged against, or paid by, such employer but shall be paid from
the catastrophe reserve of the surplus fund.
(d) (1) If an employee who has a definitely ascertainable
physical impairment, caused by a previous
occupational injury,
occupational pneumoconiosis, or occupational disease, irrespective
of its compensability, becomes permanently and totally disabled
through the combined effect of such previous injury and a second
injury received in the course of and as a result of his or her
employment, the employer shall be chargeable only for the
compensation payable for such second injury:
Provided, That in
addition to such compensation, and after the completion of the
payments therefor, the employee shall be paid the remainder of the
compensation that would be due for permanent total disability out
of a special reserve of the surplus fund known as the second injury reserve, created in the manner hereinbefore set forth.
The
procedure by which the claimant's request for a permanent total
disability award under this section is ruled upon shall require
that the issue of the claimant's degree of permanent disability
first be determined. Thereafter, by means of a separate order, a
decision shall be made as to whether the award shall be a second
injury award under this subsection or a permanent total disability
award to be charged to the employer's account or to be paid
directly by the employer if the employer has elected to be self
insured under the provisions of section nine of article two of this
chapter.
(2) If an employee of an employer, where the employer has
elected to carry his own risk under section nine, article two of
this chapter, and is permitted not to make payments into the second
injury reserve of surplus fund under the provisions of that
section, has a definitely ascertainable physical impairment caused
by a previous
occupational injury,
occupational pneumoconiosis, or
occupational disease, irrespective of its compensability, and
becomes permanently and totally disabled from the combined effect
of such previous injury and a second injury received in the course
of and as a result of his or her employment, the employee shall be
granted an award of total permanent disability and his or her
employer shall, upon order of the
commissioner, division compensate
the said employee in the same manner as if the total permanent disability of the employee had resulted from a single injury while
in the employ of such employer.
(e) Employers electing, as herein provided, to compensate
individually and directly their injured employees and their fatally
injured employees' dependents shall do so in the manner prescribed
by the
commissioner, division, and shall make all reports and
execute all blanks, forms and papers as directed by the
commissioner division, and as provided in this chapter.
(f) The commissioner and the compensation programs performance
council may, as a part of the classification and premium tax rating
program that is developed to implement the provisions of section
four of article two of this chapter, eliminate second injury
coverage for regular subscribers to the fund. Thereafter, the
second injury provisions of subsection (d) of this section shall be
applicable only to those employers who have been granted self
insurance status pursuant to section nine of article two of this
chapter. Such termination is not a requirement for the program
pursuant to this subsection but shall only be made if the rules so
provide. The program shall, if second injury coverage for regular
subscribers is terminated, provide for the continued funding of the
second injury reserve of the surplus fund. In order to continue to
meet past obligations and to make the second injury reserve solvent
and to provide a reasonable surplus in that reserve, the program
may provide for continued contributions by way of premium taxes from regular subscribers. If regular subscriber second injury
coverage is terminated an employee of such an employer whose prior
qualified physical impairments, when combined with the effect of a
qualified second injury which results in the claimant being
permanently and totally disabled shall remain entitled to an award
therefor and payments shall continue to be made from the surplus
fund.
§23-3-4. Disbursements not considered as abandoned property;
interest to be retained.
(a) All disbursements from the workers' compensation fund and
of the other funds created pursuant to this chapter which might
otherwise be presumed to be abandoned and subject to the custody of
the state as unclaimed property under the provisions of article
eight of chapter thirty-six of this code shall be deposited by the
state treasurer to the credit of the workers' compensation fund or
to such other affected fund.
(b) Notwithstanding any provision of law to the contrary, all
interest and other earnings accruing to the investments and
deposits of the workers' compensation fund and of the other funds
created pursuant to this chapter shall be credited only to the
account of the workers' compensation fund or to such other affected
fund.
§23-3-5. Authorization to require the electronic invoices and
transfers.
(a) The workers' compensation division is authorized to
establish a program to require the acceptance of disbursements by
electronic transfer from the workers' compensation fund to
claimants, employers, vendors, and all others lawfully entitled to
receive such disbursements.
(b) The division is further authorized to establish a program
to require payments of deposits, premiums and other funds into the
workers' compensation fund by electronic transfer of funds.
(c) The division is further authorized to establish a program
that invoices and other charges against the workers' compensation
fund may be submitted to the division by electronic means.
(d) Any program authorized by this section must be
implemented through the issuance of a rule pursuant to subdivisions
(b) and (c) of section seven of article three of chapter
twenty-one-a of this code.
§23-4-1a. Report of injuries by employee.
Every employee who sustains an injury subject to this chapter,
or his
or her representative, shall immediately on the occurrence
of such injury or as soon thereafter as practicable give or cause
to be given to the employer or any of
his the employer's agents a
written notice of the occurrence of such injury, with like notice
or a copy thereof to the
commissioner workers' compensation
division stating in ordinary language the name and address of the
employer, the name and address of the employee, the time, place, nature and cause of the injury, and whether temporary total
disability has resulted therefrom. Such notice shall be given
personally to the employer or any of
his the employer's agents, or
may be sent by
registered certified mail addressed to the employer
at
his the employer's last known residence or place of business.
Such notice may be given to the
commissioner personally or workers'
compensation division by mail.
§23-4-1c. Payment of temporary total disability benefits directly
to claimant; payment of medical benefits; payments
of benefits during protest; right of division to
collect payments improperly made.
(a) In any claim for benefits under this chapter, the
commissioner workers' compensation division shall determine
whether the claimant has sustained a compensable injury within the
meaning of section one of this article and
he the division shall
enter an order giving all parties immediate notice of such
decision.
(1) The division may enter an order conditionally approving
the claimant's application if the division finds that obtaining
additional medical evidence or evaluations or other evidence
related to the issue of compensability would aid the division in
making a correct final decision. Benefits shall be paid during the
period of conditional approval; however, if the final decision is
one that rejects the claim, then any such payments shall be considered an overpayment. The division may only recover the
amount of such an overpayment as provided for in subsection (i) of
this section.
(2) In making a determination regarding the compensability of
a newly filed claim or upon a filing for the reopening of a prior
claim pursuant to the provisions of section sixteen of this article
based upon an allegation of recurrence, reinjury, aggravation, or
progression of the previous compensable injury or in the case of a
filing of a request for any other benefits under the provisions of
this chapter, the division shall consider the date of the filing of
the claim for benefits for a determination of the following:
(A) Whether the claimant had scheduled shutdown or vacation
time beginning within one week of the date of the filing; or
(B) Whether the claimant received notice within sixty days of
the filing that his or her employment position was to be
eliminated, including, but not limited to, the claimant's worksite,
a layoff, or the elimination of the claimant's employment position;
or
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing.
In the event of an affirmative finding upon any of these four
factors, there shall arise a rebuttable evidentiary presumption that the filing is false and is to be refused.
(3) Any party shall have the right to protest the order of the
commissioner division and obtain an evidentiary hearing as provided
in section one, article five of this chapter.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided in
section five of this article, the
commissioner division may
immediately enter an order commencing the payment of temporary
total disability benefits to the claimant in the amounts provided
for in sections six and fourteen of this article, and the payment
of the expenses provided for in subsection (a), section three of
this article, relating to said injury, without waiting for the
expiration of the thirty-day period during which objections may be
filed to such findings as provided in section one, article five of
this chapter. The
commissioner division shall enter an order
commencing the payment of temporary total disability or medical
benefits within fifteen days of receipt of either the employee's or
employer's report of injury, whichever is received sooner, and
also upon receipt of either a proper physician's report or any
other information necessary for a determination. The
commissioner
division shall give to the parties immediate notice of any order
granting temporary total disability or medical benefits.
(c) The
commissioner division may enter orders granting temporary total disability benefits upon receipt of medical
evidence justifying the payment of such benefits. In no claim
shall the
commissioner division enter an order granting prospective
temporary total disability benefits for a period of more than
ninety days:
Provided, That when the
commissioner division
determines that the claimant remains disabled beyond the period
specified in the prior order granting temporary total disability
benefits, the
commissioner division shall enter an order continuing
the payment of temporary total disability benefits for an
additional period not to exceed ninety days, and shall give
immediate notice to all parties of such decision.
(d) Upon receipt of the first report of injury in claim, the
commissioner division shall request from the employer or employers
any wage information necessary for determining the rate of benefits
to which the employee is entitled. If an employer does not furnish
the
commissioner division with this information within fifteen days
from the date the
commissioner division received the first report
of injury in the case, the employee shall be paid temporary total
disability benefits for lost time at the rate the
commissioner
division obtains from reports made
to him or her pursuant to
section eleven, article ten, chapter twenty-one-a of this code. If
no such wages have been reported, then the
commissioner division
shall make such payments at the rate
he or she believes the
division finds would be justified by the usual rate of pay for the occupation of the injured employee. The
commissioner division
shall adjust the rate of benefits both retroactively and
prospectively upon receipt of proper wage information. The
commissioner division shall have access to all wage information in
the possession of any state agency
, including wage information
received by the unemployment compensation division under said
chapter, pertinent to such determination.
(e)
Upon Subject to the limitations set forth in section
sixteen of this article, upon a finding of the
commissioner
division that a claimant who has sustained a previous compensable
injury which has been closed by any order of the
commissioner
division, or by the claimant's return to work, suffers further
temporary total disability or requires further medical or hospital
treatment resulting from the compensable injury, the
commissioner
division shall immediately enter an order commencing the payment of
temporary total disability benefits to the claimant in the amount
provided for in sections six and fourteen of this article, and the
expenses provided for in subsection (a), section three of this
article, relating to said disability, without waiting for the
expiration of the thirty-day period during which objections may be
filed to such findings as provided in section one, article five of
this chapter. The
commissioner division shall give immediate
notice to the parties of his order.
(f) Where the employer is a subscriber to the workers' compensation fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the
commissioner division
shall mail all workers' compensation checks paying temporary total
disability benefits directly to the claimant and not to the
employer for delivery to the claimant.
(g) Where the employer has elected to carry his own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the
commissioner division shall immediately issue a pay
order directing the employer to pay such amounts as are due the
claimant for temporary total disability benefits. A copy of the
order shall be sent to the claimant. The self-insured employer
shall commence such payments by mailing or delivering the payments
directly to the employee within ten days of the date of the receipt
of the pay order by the employer. If the self-insured employer
believes that his employee is entitled to benefits, he may start
payments before receiving a pay order from the
commissioner
division.
(h) In the event that an employer files a timely objection to
any order of the
commissioner division with respect to
compensability, or any order denying an application for
modification with respect to temporary total disability benefits,
or with respect to those expenses outlined in subsection (a),
section three of this article, the
commissioner division shall
continue to pay to the claimant such benefits and expenses during the period of such disability. Where it is subsequently found by
the
commissioner division that the claimant was not entitled to
receive such temporary total disability benefits or expenses, or
any part thereof, so paid, the
commissioner division shall, when
the employer is a subscriber to the fund, credit said employer's
account with the amount of the overpayment; and, when the employer
has elected to carry its own risk, the
commissioner division shall
refund to such employer the amount of the overpayment. The amounts
so credited to a subscriber or repaid to a self insurer shall be
charged by the
commissioner division to the surplus fund created in
section one, article three of this chapter.
(i) When the employer has protested the compensability or
applied for modification of a temporary total disability benefit
award or expenses and the final decision in such case determines
that the claimant was not entitled to such benefits or expenses,
the amount of such benefits or expenses shall be considered
overpaid. The
commissioner division may only recover the amount of
such benefits or expenses by withholding, in whole or in part, as
determined by the
commissioner division, future permanent partial
disability benefits payable to the individual in the same or other
claims and credit such amount against the overpayment until it is
repaid in full.
(j) In the event that the
commissioner division finds that
based upon the employer's report of injury, the claim is not compensable, the
commissioner division shall provide a copy of such
employer's report
to the claimant in addition to the order denying
the claim.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the
commissioner division makes an award for permanent
partial or permanent total disability, the
commissioner division or
self-insured employer shall start payment of benefits by mailing or
delivering the amount due directly to the employee within fifteen
days from the date of the award.
(b) On and after the first day of July, one thousand nine
hundred and ninety-five, whenever the division, the office of
judges, or the workers' compensation appeals board enters an order
granting the claimant a permanent total disability award and an
objection or appeal is then filed by the employer or the division,
the division shall begin the payment of monthly permanent total
disability benefits. However, any payment for a back period of
benefits from the onset date of total permanent disability to the
date of the award shall be limited to a period of twelve months of
benefits. If, after all litigation is completed and the time for
the filing of any further objections or appeals to the award has
expired, the award of permanent total disability benefits is
upheld, then the claimant shall receive the remainder of benefits
due to him or her based upon the onset date of total permanent
disability that was finally determined.
(c) If the claimant is then owed any additional payment of
back permanent total disability benefits, then the division shall
not only pay the claimant the sum owed but shall also add thereto
interest at the simple rate of six percent per annum from the date
of the initial award granting the total permanent disability to the
date of the final order upholding the award. In the event that an
intermediate order directed an earlier onset date of permanent
total disability than was found in the initial award, the interest
earning period for that additional period shall begin upon the date
of the intermediate award. Any interest payable shall be charged
to the account of the employer or shall be paid by the employer if
it has elected to carry its own risk. (b) (d) If a timely protest to the award is filed, as provided in
section one or section one-h,
of article five of this chapter, the
commissioner division or self-insured employer shall continue to
pay to the claimant such benefits during the period of such
disability unless it is subsequently found
by the commissioner or
administrative law judge that the claimant was not entitled to
receive the benefits, or any part thereof, so paid, in which event
the
commissioner division shall, where the employer is a subscriber
to the fund, credit said employer's account with the amount of the
overpayment; and, where the employer has elected to carry the
employer's own risk, the
commissioner division shall refund to such
employer the amount of the overpayment. The amounts so credited to
a subscriber or repaid to a self-insurer shall be charged by the
commissioner division to the surplus fund created by section one,
article three of this chapter. If the final decision in any case
determines that a claimant was not lawfully entitled to benefits
paid to him or her pursuant to a prior decision, such amount of
benefits so paid shall be deemed overpaid. The
commissioner
division may only recover such amount by withholding, in whole or
in part, as determined by the
commissioner, division, future
permanent partial disability benefits payable to the individual in
the same or other claims and credit such amount against the
overpayment until it is repaid in full.
§23-4-3. Schedule of maximum disbursements for medical, surgical,
dental and hospital treatment; legislative approval;
guidelines; preferred provider agreements; charges in
excess of scheduled amounts not to be made; required
disclosure of financial interest in sale or rental of
medically related mechanical appliances or devices;
promulgation of rules to enforce requirement;
consequences of failure to disclose; contract by
employer with hospital, physician, etc., prohibited;
criminal penalties for violation; payments to certain
providers prohibited; medical cost and care programs;
payments; interlocutory orders.
(a) The
commissioner workers' compensation division shall
establish and alter from time to time as
he or she the division may determine to be appropriate a schedule of the maximum reasonable
amounts to be paid to
chiropractic physicians, medical physicians,
osteopathic physicians, podiatrists, optometrists, vocational
rehabilitation specialists, pharmacists, ophthalmologists and
others practicing medicine and surgery, surgeons, hospitals health
care providers, providers of rehabilitation services, providers of
durable medical and other goods, or other persons, firms or
corporations for the rendering of treatment or services to injured
employees under this chapter. The
commissioner division also, on
the first day of each regular session and also from time to time,
as the
commissioner the division may consider appropriate, shall
submit the schedule, with any changes thereto, to the Legislature.
The promulgation of the schedule is not subject to the legislative
rule-making review procedures established in sections nine through
sixteen, article three, chapter twenty-nine-a of this code.
The
commissioner division shall disburse and pay from the fund
for such personal injuries to such employees as may be entitled
thereto hereunder as follows:
(1) Such sums for
medicines, medical, surgical, dental and
hospital treatment or services, crutches, artificial limbs and such
other and additional approved mechanical appliances and devices
health care services, durable medical and other goods, and other
supplies as may be reasonably required. The
commissioner division
shall determine that which is reasonably required within the meaning of this section in accordance with the guidelines developed
by the health care advisory panel pursuant to section three-b of
this article:
Provided, That nothing herein shall prevent the
implementation of guidelines applicable to a particular type of
treatment or service or to a particular type of injury before
guidelines have been developed for other types of treatment or
services or injuries:
Provided, however, That any guidelines for
utilization review which are developed in addition to the
guidelines provided for in said section may be utilized by the
commissioner division until superseded by guidelines developed by
the health care advisory panel pursuant to said section. Each
health care provider who seeks to provide services or treatment
which are not within any such guideline shall submit to the
commissioner division specific justification for the need for such
additional services in the particular case and the
commissioner
division shall have the justification reviewed by a health care
professional before authorizing any such additional services. The
commissioner division is authorized to enter into preferred
provider
and managed care agreements.
(2) Payment for
such medicine, medical, surgical, dental and
hospital treatment or services, crutches, artificial limbs and such
other and additional approved mechanical appliances and devices
health care services, durable medical and other goods, and other
supplies 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 durable medical or other goods or other supplies, or who has
advanced payment for same, as the
commissioner division may deem
proper, but no such payments or disbursements shall be made or
awarded by the
commissioner division unless duly verified
statements on forms prescribed by the
commissioner division shall
be filed with the
commissioner division within two years after the
cessation rendering of such treatment or the delivery of such
appliances goods or supplies:
Provided, That no payment hereunder
shall be made unless such verified statement shows no charge for or
with respect to such treatment or for or with respect to any of the
items specified above has been or will be made against the injured
employee or any other person, firm or corporation, and when an
employee covered under the provisions of this chapter is injured in
the course of and as a result of his or her employment and is
accepted for
medical, surgical, dental or hospital treatment or
services or any mechanical appliances and devices health care
services or the provision of durable medical or other goods or
other supplies, the person, firm or corporation rendering such
treatment is hereby prohibited from making any charge or charges
therefor or with respect thereto against the injured employee or
any other person, firm or corporation which would result in a total
charge for the treatment rendered in excess of the maximum amount set forth therefor in the
commissioner's division's schedule
established as aforesaid.
(3) Any pharmacist filling a prescription for medication for
a workers' compensation claimant shall dispense a generic brand of
the prescribed medication if a generic brand exits. If a generic
brand does not exist, then the pharmacist may dispense the name
brand. In the event that a physician wishes to prescribe the use
of the name brand of a given prescription medication, then he or
she must indicate in his or her own handwriting on the prescription
order form that the brand name medication is to be issued. In the
event that a claimant wishes to receive the name brand medication
in lieu of the generic brand and if the physician has not indicated
that the brand name is required, then the claimant may receive the
name brand medication but, in that event, the claimant will be
personally liable for the difference in costs between the generic
brand medication and the brand name medication.
(4) In the event that a claimant elects to receive health
care services from a health care provider from outside of the state
of West Virginia and if that health care provider refuses to abide
by and accept as full payment the reimbursement made by the
workers' compensation division pursuant to the schedule of maximum
reasonable amounts of fees authorized by subsection (a) of this
section, then, with the exceptions noted below, the claimant will
be personably liable for the difference between the scheduled fee and the amount demanded by the out of state health care provider.
(A) In the event of an emergency where there is an urgent
need for immediate medical attention in order to prevent the death
of a claimant or to prevent serious and permanent harm to the
claimant, if the claimant receives the emergency care from an out
of state health care provider who refuses to accept as full payment
the scheduled amount, then that claimant will not be personally
liable for the difference between the amount scheduled and the
amount demanded by the health care provider. Upon the claimant's
attaining a stable medical condition and being able to be
transferred to either a West Virginia health care provider or an
out of state health care provider who has agreed to accept the
scheduled amount of fees as payment in full, if such claimant
refuses to seek the specified alternative health care providers,
then he or she will be personally liable for the difference in
costs between the scheduled amount and the amount demanded by the
health care provider for services provided after attaining
stability and being able to be transferred.
(B) In the event that there is no health care provider
reasonably near to the claimant's home who is qualified to provide
the claimant's needed medical services and who is either located in
the state of West Virginia or who has agreed to accept as payment
in full the scheduled amounts of fees, then the division upon
application by the claimant may authorize the claimant to receive medical services from another health care and such claimant shall
not be personally liable for the difference in costs between the
scheduled amount and the amount demanded by the health care
provider.
(b) No chiropractic physician, medical physician, osteopathic
physician, podiatrist or others practicing medicine or surgery
(collectively and individually referred to hereinafter as
"practitioner" or "practitioners") shall refer his or her patients
to the practitioner himself or herself or to a supplier of
mechanical appliances or devices owned in whole or in part by the
practitioner, the practitioner's partnership or professional
corporation, or a member of the practitioner's immediate family for
the purchase or rental of any mechanical appliances or devices
which the practitioner has prescribed or recommended to such
patient except upon the terms prescribed by this section. Examples
of mechanical appliances or devices are described as follows, but
these examples are described for illustrative purposes only and are
not intended to limit the range of items included by this phrase:
Hearing aids; crutches; artificial limbs; oxygen concentrators; and
TENS units. For the purposes of this subsection, the term
"practitioner" shall include natural persons, partnerships and
professional corporations.
(1) In order to avoid the bar of this subdivision, a
practitioner shall first disclose to his or her patient the ownership interest of the practitioner, or of the practitioner's
partnership or professional corporation, or of a member of the
practitioner's immediate family in the entity which would sell or
rent the mechanical appliance or device to the patient. If the
practitioner would sell or rent the mechanical appliance or device
as part of his or her practice and not as a separate legal entity,
the practitioner shall disclose this fact to the patient. These
disclosures must be delivered in writing to the patient.
(2) The commissioner may include in any rules promulgated to
implement this section a requirement that the written notice
disclose to the patient that he or she is free to use any lawful
supplier of the mechanical appliance or device prescribed or
recommended and that other suppliers may offer the mechanical
appliance or device for less cost but of equal or better quality
elsewhere and that the patient is encouraged to comparison shop.
The commissioner's rule may also provide for a differing level of
reimbursement to the supplier if the supplier is the practitioner
himself or herself or if the supplier is owned in whole or in part
by the practitioner, the practitioner's partnership or professional
corporation or a member of the practitioner's immediate family as
compared to the reimbursement of a supplier who is wholly
independent from the practitioner.
(3) Failure by a practitioner to comply with the provisions of
this subsection shall cause the practitioner to forfeit his, her, or its right to reimbursement for the services rendered by the
practitioner to the patient and, if any such services have
previously been reimbursed, the commissioner shall either seek
recovery of such funds by any lawful means or by deducting such
amounts from future payments to the practitioner on account of
services rendered to the same patient or to other claimants of the
workers' compensation fund. In addition, failure by a practitioner
to comply with the provisions of this subsection shall also result
in the denial of payment to the supplier of the mechanical
appliance or device if that supplier is one which is owned in whole
or in part by the practitioner, the practitioner's partnership or
professional corporation, or a member of the practitioner's
immediate family. If such supplier has already been reimbursed for
the cost of the pertinent mechanical appliance or device, then the
commissioner shall either seek recovery of such funds by any lawful
means or by deducting such amounts from future payments to the
supplier on account of goods delivered to the same patient or to
other claimants of the workers' compensation fund.
(c) (b) No employer shall enter into any contracts with any
hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or surgical
attention therein to any employee for injury compensable within the
purview of this chapter, and no employer shall permit or require
any employee to contribute, directly or indirectly, to any fund for the payment of such medical, surgical, dental or hospital
service within such hospital for such compensable injury. Any
employer violating this section shall be liable in damages to the
employer's employees as provided in section eight, article two of
this chapter, and any employer or hospital or agent or employee
thereof violating the provisions of this section shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be punished by
a fine not less than one hundred dollars nor more than one thousand
dollars or by imprisonment not exceeding one year, or both:
Provided, That the foregoing provisions of this subsection shall
not be deemed to prohibit an employer from participating in a
preferred provider organization or program or a health maintenance
organization or
managed care organization or other medical cost
containment relationship with the providers of medical, hospital
or other health care:
Provided, however, That nothing in this
section shall be deemed to restrict the right of a claimant to
select
a his or her initial health care provider for treatment of
a compensable injury or disease.
Should such a claimant thereafter
wish to change his or her health care provider and if his or her
employer provides a preferred provider organization or program or
a health maintenance organization or managed care organization to
its employees as part of the employer's general health insurance
benefit, then the claimant shall select a new health care provider
from such an organization. Moreover, if the division enters into an agreement which has been approved by the compensation programs
performance council with a managed care organization or
organizations, then should a claimant seek to change his or her
initial choice of health care provider, such a claimant shall
select a new health care provider from the offerings of the managed
care program applicable to him or her.
(d) (c) When an injury has been reported to the
commissioner
division by the employer without protest, the
commissioner division
may pay, or order an employer who or which made the election and
who or which received the permission mentioned in section nine,
article two of this chapter to pay, within the maximum amount
provided by schedule established by the
commissioner division as
aforesaid, bills for medical or hospital services without requiring
the injured employee to file an application for benefits.
(e) (d) The
commissioner division shall provide for the
replacement of artificial limbs, crutches, hearing aids, eyeglasses
and all other mechanical appliances provided in accordance with
this section which later wear out, or which later need to be
refitted because of the progression of the injury which caused the
same to be originally furnished, or which are broken in the course
of and as a result of the employee's employment. The fund or self-
insured employer shall pay for these devices, when needed,
notwithstanding any time limits provided by law.
(f) (e) No payment shall be made to a health care provider who is suspended or terminated under the terms of section three-c
of this article except as provided in subsection (c) of said
section.
(g) (f) The
commissioner division is authorized to engage in
and contract for medical cost containment programs, medical case
management programs and utilization review programs. Payments for
these programs shall be made from the supersedeas reserve of the
surplus fund. Any order issued pursuant to any such program shall
be interlocutory in nature until an objecting party has exhausted
all review processes provided for by the
commissioner division.
(h) (g) Notwithstanding the foregoing, the
commissioner
division may establish fee schedules, make payments and take other
actions required or allowed pursuant to article twenty-nine-d,
chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
The commissioner shall establish a health care advisory panel
consisting of representatives of the various branches and
specialties among health care providers in this state. There shall
be a minimum of five members of the health care advisory panel who
shall receive reasonable compensation for their services and
reimbursement for reasonable actual expenses. Each member of this
panel shall be provided appropriate professional or other liability
insurance, without additional premium, by the state board of risk
and insurance management created pursuant to article twelve, chapter twenty-nine of this code. The panel shall:
(a) Establish guidelines for the health care which is
reasonably required for the treatment of the various types of
injuries and occupational diseases within the meaning of section
three of this article.
Upon receiving the approval of the
compensation programs performance council pursuant to subdivisions
(b) and (c) of section seven of article three of chapter
twenty-one-a of this code, such treatment standards shall be the
standards of care for all purposes related to the treatment and
care of workers' compensation claimants. Any action brought
against a health care provider as a result of the treatment given
or not given or the outcome of any such treatment shall utilize
these treatment guidelines as the standard of care in the medical
community and for any specialty area of practice that may be
involved in a given case. In conjunction with the health care
advisory panel, the workers' compensation division is authorized to
conduct outcome studies for the purpose of evaluating any proposed
treatment guidelines or the review of any adopted treatment
guidelines.
(b) Establish protocols and procedures for the performance of
examinations or evaluations performed by physicians or medical
examiners pursuant to sections seven-a and eight of this article.
(c) Assist the
commissioner division in establishing
guidelines for the evaluation of the care provided by health care providers to injured employees for purposes of section three-c of
this article.
(d) Assist the
commissioner division in establishing
guidelines as to the anticipated period of disability for the
various types of injuries pursuant to subsection (b), section
seven-a of this article.
(e) Assist the
commissioner division in establishing
appropriate professional review of requests by health care
providers to exceed the guidelines for treatment of injuries and
occupational diseases established pursuant to subsection (a) of
this section.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal
penalties.
(a) In case the personal injury causes death, reasonable
funeral expense,,
not to exceed three thousand five hundred dollars
in an amount to be fixed from time to time by the division, shall
be paid from the fund, payment to be made to the persons who have
furnished the services and supplies, or to the persons who have
advanced payment for same, as the
commissioner division may deem
proper, in addition to such award as may be made to the employee's
dependents.
(b) A funeral director, or any person who furnished the
services and supplies associated with the funeral expenses, or a
person who has advanced payment for same, is prohibited from making any charge or charges against the employee's dependents for funeral
expenses which would result in a total charge for funeral expenses
in excess of the amount fixed by the division unless:
(1) The person seeking funeral expenses notifies, in writing
and prior to the rendering of any service, the employee's dependent
as to the exact cost of the service and the exact amount the
employee's dependent would be responsible for paying in excess of
the amount fixed by the division; and
(2) The person seeking funeral expenses secures, in writing
and prior to the rendering of any service, consent from the
employee's dependent that he or she will be responsible to make
payment for the amount in excess of the amount fixed by the
division.
(c) Any person who seeks or receives payment of funeral
expenses in excess of the amount fixed by the division without
satisfying both of the requirements of subsection (b) of this
section shall be guilty of a misdemeanor and upon conviction
therefor shall be fined not more than ten thousand dollars or
imprisoned in the county or regional jail for not more than twelve
months, or both.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of
this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The expressions "average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury" and
"average weekly wage in West Virginia", as used in this chapter,
shall have the meaning and shall be computed as set forth in
section fourteen of this article except for the purpose of
computing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(b) If the injury causes temporary total disability, the
employee shall receive during the continuance thereof
weekly
benefits as follows: A a maximum weekly benefit to be computed on
the basis of
seventy sixty-six and two-thirds percent of the
average weekly wage earnings, wherever earned, of the injured
employee, at the date of injury, not to exceed
the percentage one
hundred percent 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 day of July, one thousand nine
hundred seventy-four; and for injuries occurring on or after the
first day of July, one thousand nine hundred seventy-six, thirty-
three and one-third percent of the average weekly wage in West
Virginia, except as provided in section six-d of this article. In
no event, however, shall such minimum weekly benefits exceed the
level of benefits determined by use of the then applicable federal
minimum hourly wage:
Provided, That any claimant receiving
permanent total disability benefits, permanent partial disability
benefits or dependents' benefits prior to the first day of July,
one thousand nine hundred ninety-four, shall not have his or her
benefits reduced based upon the requirement herein that the minimum
weekly benefit shall not exceed the applicable federal minimum
hourly wage.
(c) Subdivision (b) of this section shall be limited as
follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight
weeks.
(d)
If For all awards:
(1) that are made on and after the effective date of this
subsection; or
(2) that were made prior to the effective date of this
section; or
(3) in claims in which a request for a permanent total
disability award is pending at the effective date of this section;
then , if the injury causes permanent total disability, benefits
shall be payable
during the remainder of life until the claimant
attains the age then necessary to receive federal old age
retirement benefits from the social security administration at the
maximum or minimum weekly benefits as provided in subdivision (b)
of this section for temporary total disability
; Provided, That for
claims in which a permanent total disability award was made prior
to the effective date of this section, if the claimant has already
attained the age of sixty-seven years, then that claimant shall
continue to receive the awarded benefits for a period not to exceed
one year after the effective date of this section.
In all claims
in which an award for permanent total disability benefits was made
prior to the effective date of this subsection, such awards shall
continue to be paid at the rate in effect prior to the effective
date of this section: Provided, That the provisions of sections one through eight of article four-a of this chapter shall be
applied thereafter to all such prior awards that were previously
subject to its provisions. A 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 division
grant an additional permanent disability award to a claimant
receiving a permanent total disability award
, or to a claimant who
has previously been granted permanent disability awards totaling
eighty-five percent or more and has been granted a permanent total
disability award:
Provided, That if any claimant thereafter
sustains another compensable injury and has permanent partial
disability resulting therefrom, the total permanent disability
award benefit rate shall be computed at the highest benefit rate
justified by any of the compensable injuries, and the cost of any
increase in the permanent total disability benefit rate shall be
paid from the second injury reserve created by section one, article
three of this chapter. In any claim in which a claimant aggregates
permanent partial disability awards in the amount of eighty-five
percent or more after the effective date of this subsection, the
claimant shall be entitled to a permanent total disability award
unless the evidence establishes that the claimant is not
permanently and totally disabled pursuant to subdivision (n) of
this section.
(e)
If For all awards made on and after the effective date of
this section, 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. rates. The maximum weekly benefit shall be sixty-six and
two-thirds percent of the average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury, not to
exceed
the percentage one hundred percent 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 of
disability shall be determined by the
commissioner, with the following table establishing the minimum percentage of disability.
In determining the percentage of disability,
the commissioner may
be guided by, but shall not be limited to, the disabilities
enumerated in the following table, and in no event shall the
disability be less than that specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a two
percent disability.
The loss of all toes shall be considered a twenty-five percent
disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index finger shall be considered a
thirty-two percent disability.
The loss of index and middle finger shall be considered a twenty percent disability.
The loss of middle and ring finger shall be considered a
fifteen percent disability.
The loss of ring and little finger shall be considered a ten
percent disability.
The loss of thumb, index and middle finger shall be considered
a forty percent disability.
The loss of index, middle and ring finger shall be considered
a thirty percent disability.
The loss of middle, ring and little finger shall be considered
a twenty percent disability.
The loss of four fingers shall be considered a thirty-two
percent disability.
The loss of hand shall be considered a fifty percent
disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent
disability.
The total and irrecoverable loss of the sight of one eye shall
be considered a thirty-three percent disability. For the partial
loss of vision in one, or both eyes, the percentages of disability
shall be determined by the
commissioner division, using as a basis
the total loss of one eye.
The total and irrecoverable loss of the hearing of one ear
shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one, or both ears, the
percentage of disability shall be determined by the
commissioner
division, using as a basis the total loss of hearing in both ears.
Should a claimant sustain a compensable injury which results
in the total loss by severance of any of the bodily members named
in this subdivision, die from sickness or noncompensable injury
before the
commissioner division makes the proper award for such
injury, the
commissioner division shall make such award to
claimant's dependents as defined in this chapter, if any; such
payment to be made in the same installments that would have been
paid to claimant if living:
Provided, That no payment shall be
made to any surviving spouse of such claimant after his or her
remarriage, and that this liability shall not accrue to the estate
of such claimant and shall not be subject to any debts of, or
charges against, such estate.
(g) Should a claimant to whom has been made a permanent
partial award
of from one percent to eighty-four percent, both
inclusive, die from sickness or noncompensable injury, the unpaid
balance of such award shall be paid to claimant's dependents as
defined in this chapter, if any; such payment to be made in the same installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of
such claimant after his or her remarriage, and that this liability
shall not accrue to the estate of such claimant and shall not be
subject to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have the force and effect
of an award.
(i)
The award for permanent disabilities intermediate to those
fixed by the foregoing schedule and permanent disability of from
one percent to eighty-four percent shall be the same proportion and
shall be computed and allowed by the commissioner. For the
purposes of this chapter with the exception of those injuries
provided for in subdivision (f) of this section and in section
six-b of this article, the degree of permanent disability other
than permanent total disability shall be determined exclusively by
the degree of whole body medical impairment that a claimant has
suffered. For those injuries provided for in subdivision (f) of
this section and section six-b of this article, the degree of
disability shall be determined exclusively by the provisions of
that subdivision and that section. The workers' compensation
division shall adopt standards for the evaluation of claimants and
the determination of a claimant's degree of whole body medical
impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of
permanent partial disability that shall be awarded to the claimant.
This subdivision shall be applicable to all injuries incurred and
diseases with a date of last exposure on and after the effective
date of this section and to all applications for an award of
permanent partial disability made on and after the effective date
of this section. The prior provisions of this subdivision shall
remain in effect for all other claims.
(j)
The percentage of all permanent disabilities other than
those enumerated in subdivision (f) of this section shall be
determined by the commissioner, and awards made in accordance with
the provisions of subdivision (d) or (e) of this section. Where
there has been an injury to a member as distinguished from total
loss by severance of that member, the commissioner in determining
the percentage of disability may be guided by, but shall not be
limited to, the disabilities enumerated in subdivision (f) of this
section. With the exception of those injuries provided for in
subdivision (f) of this section, for noise induced hearing loss as
provided for in section six-b of this article, and for occupational
pneumoconiosis as provided for in section eight-c of this article,
the workers' compensation division with the approval of the
compensation programs performance council created pursuant to
article three of chapter twenty-one-a of this code shall appoint a
medical panel for the purposes of determining the degree of medical impairment that a claimant has suffered. A member or members of
that panel shall review the medical records of a claimant and any
reports and opinions offered by the claimant, the employer, and any
independent medical examiner on the degree of the claimant's whole
body medical impairment. The panel member or members may elect to
reexamine the claimant. Upon completion of this review, the panel
member or members shall select that degree of medical impairment
from the reports offered by the claimant, the employer, or an
independent medical examiner which most closely matches the degree
of medical impairment that the panel member or members believe that
a claimant has suffered. The panel member or members shall not
substitute the member's or members' judgement on the degree of
medical impairment for those proffered in the reports on file. The
division shall then enter an award of permanent partial disability
premised upon the recommendation of the panel member or members.
Objections pursuant to section one of article five of this chapter
shall be limited to a review of the record developed before the
workers' compensation division and shall further be limited to a
determination that the panel member or members properly applied the
standards for determining medical impairment. No additional
evidence may be introduced during the review of the objection
before the office of judges or elsewhere on appeal. This
subdivision shall be applicable to all injuries and diseases
incurred on and after the effective date of this section and to all applications for an award of permanent partial disability made or
pending on and after the effective date of this section. The prior
provisions of this subdivision shall remain in effect for all other
claims.
(k) Compensation payable under any subdivision of this section
shall not exceed the maximum nor be less than the weekly benefits
specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this chapter,
temporary total disability benefits payable under subdivision (b)
of this section shall not be deductible from permanent partial
disability awards payable under subdivision (e) or (f) of this
section. Compensation, either temporary total or permanent
partial, under this section shall be payable only to the injured
employee and the right thereto shall not vest in his or her estate,
except that any unpaid compensation which would have been paid or
payable to the employee up to the time of his or her death, if he
or she had lived, shall be paid to the dependents of such injured
employee if there be such dependents at the time of death.
(m) The following permanent disabilities shall be conclusively
presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
In all other cases permanent disability shall be determined by
the commissioner in accordance with the facts in the case and award
made in accordance with the provisions of subdivision (d) or (e) of
this section.
(n)
(1) Other than for those injuries specified in subdivision
(m) of this section, in order to be eligible to apply for an award
of permanent total disability benefits for all injuries incurred
and all diseases, including occupational pneumoconiosis, with a
date of last exposure on and after the effective date of this
section and for all requests for such an award made or pending on
and after the effective date of this section, a claimant must have
been awarded the sum of sixty percent in prior permanent partial
disability awards or have suffered an occupational injury or
disease which results in a finding that the claimant has suffered
a medical impairment of sixty-five percent. Upon filing such an
application, the claimant will be reevaluated by a member or
members of the medical panel created pursuant to subdivision (j) of
this section to determine if he or she has suffered a whole body
medical impairment of sixty-five percent resulting from either a
single occupational injury or occupational disease or a combination
of occupational injuries and occupational diseases. The member or
members of the medical panel shall review the claim as provided for
in subdivision (j) of this section except that the member or
members may make a finding based upon the member's or members' own judgment of the degree of medical impairment and not be limited to
the reports and opinions of record. The review of any objection
filed pursuant to section one of article five of this chapter to
that finding shall be limited to a review of the record developed
before the division and to a determination that the panel member's
or members' opinion was composed in accordance with the adopted
standards. If the claimant has not suffered medical impairment in
the amount of or in excess of sixty-five percent, then the request
shall be refused. If the claimant does suffer that degree of
medical impairment, then the review of the application shall
continue as provided for in the following paragraph of this
subdivision. For the purposes of determining whether the claimant
should be awarded a permanent total disability benefits under the
second injury provisions of subsection (d) of section one of
article three of this code, only a combination of occupational
injuries and occupational diseases, including occupational
pneumoconiosis, shall be considered.
(2) A disability which renders the injured employee unable to
engage in substantial gainful activity requiring skills or
abilities comparable to those of any gainful activity in which he
or she has previously engaged with some regularity and over a
substantial period of time shall be considered in determining the
issue of total disability. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three, chapter twenty-one-a of this code shall be considered once they are
effective.
(3) The compensation programs performance council and the
commissioner shall develop and implement a program through which
those claimants:
(A) whose degree of whole body medical impairment exceeds
twenty-five percent but is less than sixty percent; or
(B) whose degree of whole body medical impairment exceeds
sixty-five percent, but who have been denied a permanent total
disability award under the provisions of this subdivision; and
(C) in the case of either one of the above, if the claimant's
disability prevents him or her from returning to work without
retraining or other rehabilitation;
then an employer who employs that claimant and participates in the
rehabilitation of the claimant and who continuously employs the
claimant shall be entitled, for a period of not more than three
years, to deduct the full amount of the claimant's wages from the
amount reported to the division pursuant to section five of article
two of this chapter. If the claimant leaves the employ of that
employer prior to the expiration of the three year period, then
such deduction shall cease.
§23-4-6a. Benefits and mode of payment to employees and dependents
for occupational pneumoconiosis; further adjustment
of claim for occupational pneumoconiosis.
If an employee is found to be permanently disabled due to
occupational pneumoconiosis, as defined in section one of this
article, the percentage of permanent disability shall be determined
by the
commissioner in accordance with the facts in the case and
with the advice and recommendation of degree of medical impairment
that is found by the occupational pneumoconiosis board.
The
division shall enter an order setting forth the findings of the
occupational pneumoconiosis board with regard to whether the
claimant has occupational pneumoconiosis and the degree of medical
impairment, if any, resulting therefrom. That order shall be the
final decision of the division for purposes of section one of
article five of this chapter. If such a decision is objected to,
the office of judges shall affirm the findings of occupational
pneumoconiosis and the degree of medical impairment unless the
findings are clearly wrong in view of the reliable, probative and
substantial evidence on the whole record. Compensation shall be
paid therefor in the same manner and at the same rate as is
provided for permanent disability under the provisions of
subdivisions (d), (e), (g), (h), (i), (j), (k), (m) and (n) of
the
preceding section
six of this article:
Provided, That if it shall
be determined by the
commissioner division in accordance with the
facts in the case and with the advice and recommendation of the
occupational pneumoconiosis board that an employee has occupational
pneumoconiosis, but without measurable pulmonary impairment therefrom, such employee shall be awarded and paid twenty weeks of
benefits at the same benefit rate as hereinabove provided.
If the employee dies from occupational pneumoconiosis, the
benefits shall be as provided for in section ten of this article;
as to such benefits sections eleven to fourteen, inclusive, of this
article shall apply.
In cases of permanent disability or death due to occupational
pneumoconiosis, as defined in section one of this article,
accompanied by active tuberculosis of the lungs, compensation shall
be payable as for disability or death due to occupational
pneumoconiosis alone.
The provisions of section sixteen, article four and sections
one-a, one-b, one-c and one-d, two, three, four and five of article
five of this chapter providing for the further adjustment of claims
shall be applicable to the claim of any claimant who receives a
permanent partial disability award for occupational pneumoconiosis.
§23-4-6c. Benefits payable to certain sheltered workshop
employees; limitations.
Notwithstanding the provisions of section six, six-a or six-b
of this article or any other provision of this chapter, the minimum
weekly benefit payments under subsection (b), section one of this
article shall not apply to employees who work at nonprofit
"workshops" as defined in section one, article
one six, chapter
five-a of this code. When compensation is due any such employee, the weekly benefits payable hereunder to such employee may not
exceed
seventy sixty-six and two-thirds percent of that employee's
actual weekly wages, and in no event may the average weekly wage in
West Virginia be the basis upon which to compute the benefits of
temporary total disability to employees working for less than the
minimum wage.
§23-4-7. Release of medical information to employer; legislative
findings; effect of application for benefits; duty of
employer.
(a) The Legislature hereby finds and declares that two of the
primary objectives of the workers' compensation system established
by this chapter are to provide benefits to an injured claimant
promptly and to effectuate his return to work at the earliest
possible time; that the prompt dissemination of medical information
to the
commissioner division and employer as to diagnosis,
treatment and recovery is essential if these two objectives are to
be achieved; that claimants are increasingly burdened with the
task of contacting their treating physicians to request the
furnishing of detailed medical information to the
commissioner
division and their employers; that the
commissioner division is
increasingly burdened with the administrative responsibility of
providing copies of medical reports to the employer involved,
whereas in other states the employer can obtain the necessary
medical information direct from the treating physician; that much litigation is occasioned in this state because of a lack of medical
information having been received by the employer as to the
continuing disability of a claimant; and that detailed narrative
reports from the treating physician are often necessary in order
for the
commissioner division, the claimant's representatives and
the employer to evaluate a claim and determine whether additional
or different treatment is indicated.
(b) In view of the foregoing findings, on and after the
effective date of this section, a claimant shall irrevocably agree
by the filing of his
or her application for benefits that any
physician may release
, to the claimant's employer or its
representative, to and orally discuss with the claimant's employer,
or its representative, or with a representative of the division
from time to time
to such claimant's employer the claimant's
complete medical history and any medical reports containing
detailed information as to the claimant's condition, treatment,
prognosis and anticipated period of disability and dates as to when
the claimant will reach or has reached his maximum degree of
improvement or will be or was released to return to work.
For the
exclusive purposes of this chapter, the patient-physician privilege
of confidentiality is waived with regard the physician's providing
any medical information to the division, the employer, or to the
employer's representative. Whenever a copy of any such medical
report is obtained by the employer or their representative and the physician has not also forwarded a copy of the same to the
commissioner division, the employer shall forward a copy of such
medical report to the
commissioner division within ten days from
the date such employer received the same from such physician.
§23-4-7a. Monitoring of injury claims; legislative findings;
review of medical evidence; recommendation of
authorized treating physician; independent medical
evaluations; temporary total disability benefits and
the termination thereof; mandatory action;
additional authority.
(a) The Legislature hereby finds and declares that injured
claimants should receive the type of treatment needed as promptly
as possible; that overpayments of temporary total disability
benefits with the resultant hardship created by the requirement of
repayment should be minimized; and that to achieve these two
objectives, it is essential that the
commissioner division
establish and operate a systematic program for the monitoring of
injury claims where the disability continues longer than might
ordinarily be expected.
(b) In view of the foregoing findings, the
commissioner
division, in consultation with medical experts, shall establish
guidelines as to the anticipated period of disability for the
various types of injuries. Each injury claim in which temporary
total disability continues beyond the anticipated period of disability so established for the injury involved shall be reviewed
by the
commissioner division. If satisfied, after reviewing the
medical evidence, that the claimant would not benefit by an
independent medical evaluation, the
commissioner division shall
mark the claim file accordingly and shall diary such claim file as
to the next date for required review which shall not exceed sixty
days. If the
commissioner division concludes that the claimant
might benefit by an independent medical evaluation,
he or she the
division shall proceed as specified in subsections (d) and (e) of
this section.
(c) When the authorized treating physician concludes that the
claimant has either reached his or her maximum degree of
improvement or is ready for disability evaluation, or when the
claimant has returned to work, such authorized treating physician
may recommend a permanent partial disability award for residual
impairment relating to and resulting from the compensable injury,
and the following provisions shall govern and control:
(1) If the authorized treating physician recommends a
permanent partial disability award of fifteen percent or less, the
commissioner division shall enter an award of permanent partial
disability benefits based upon such recommendation and all other
available information, and the claimant's entitlement to temporary
total disability benefits shall cease upon the entry of such award
unless previously terminated under the provisions of subsection (e) of this section.
(2) If, however, the authorized treating physician recommends
a permanent partial disability award in excess of fifteen percent,
or recommends a permanent total disability award, the claimant's
entitlement to temporary total disability benefits shall cease upon
the receipt by the
commissioner division of such report and the
commissioner division shall refer the claimant to a physician or
physicians of the
commissioner's division's selection for
independent evaluation prior to the entry of a permanent disability
award:
Provided, That
unless the claimant has returned to work,
the claimant shall thereupon receive benefits which shall then be
at the permanent partial disability rate as provided in subdivision
(e), section six of this article until the entry of a permanent
disability award
or until the claimant returns to work, and which
amount of such benefits paid prior to the receipt of such report
shall be considered and deemed to be payment of the permanent
disability award then granted, if any. In the event that benefits
actually paid exceed the amount granted by the permanent partial
disability award, claimant shall be entitled to no further benefits
by such award but shall not be liable by offset or otherwise for
the excess paid.
(d) When the
commissioner division concludes that an
independent medical evaluation is indicated, or that a claimant may
be ready for disability evaluation in accordance with other provisions of this chapter, the
commissioner division shall refer
the claimant to a physician or physicians of the
commissioner's
division's selection for examination and evaluation. If the
physician or physicians so selected recommend continued, additional
or different treatment, the recommendation shall be relayed to the
claimant and the claimant's then treating physician and the
recommended treatment may be authorized by the
commissioner
division.
(e) Notwithstanding any provision in subsection (c) of this
section, the
commissioner division shall enter a notice suspending
the payment of temporary total disability benefits but providing a
reasonable period of time during which the claimant may submit
evidence justifying the continued payment of temporary total
disability benefits when:
(1) The physician or physicians selected by the
commissioner
division conclude that the claimant has reached his or her maximum
degree of improvement; or
(2) When the authorized treating physician shall advise the
commissioner division that the claimant has reached his or her
maximum degree of improvement or that he or she is ready for
disability evaluation and when the authorized treating physician
has not made any recommendation with respect to a permanent
disability award as provided in subsection (c) of this section; or
(3) When other evidence submitted to the
commissioner division justifies a finding that the claimant has reached his or her
maximum degree of improvement:
Provided, That in all cases a
finding by the
commissioner division that the claimant has reached
his or her maximum degree of improvement shall terminate the
claimant's entitlement to temporary total disability benefits
regardless of whether the claimant has been released to return to
work:
Provided, however, That under no circumstances shall a
claimant be entitled to receive temporary total disability benefits
either beyond the date the claimant is released to return to work
or beyond the date he or she actually returns to work.
In the event that the medical or other evidence indicates that
claimant has a permanent disability,
unless he or she has returned
to work, the claimant shall thereupon receive benefits which shall
then be at the permanent partial disability rate as provided in
subdivision (e), section six of this article until entry of a
permanent disability award, pursuant to an evaluation by a
physician or physicians selected by the
commissioner, division, or
until the claimant returns to work and which amount of benefits
shall be considered and deemed to be payment of the permanent
disability award then granted, if any. In the event that benefits
actually paid exceed the amount granted under the permanent
disability award, claimant shall be entitled to no further benefits
by such order but shall not be liable by offset or otherwise for
the excess paid.
(f) Notwithstanding the anticipated period of disability
established pursuant to the provisions of subsection (b) of this
section, whenever in any claim temporary total disability shall
continue longer than one hundred twenty days from the date of
injury (or from the date of the last preceding examination and
evaluation pursuant to the provisions of this subsection or
pursuant to the directions of the
commissioner division under other
provisions of this chapter), the
commissioner division shall refer
the claimant to a physician or physicians of the
commissioner's
division selection for examination and evaluation in accordance
with the provisions of subsection (d) of this section and the
provisions of subsection (e) of this section shall be fully
applicable:
Provided, That the requirement of mandatory
examinations and evaluations pursuant to the provisions of this
subsection (f) shall not apply to any claimant who sustained a
brain stem or spinal cord injury with resultant paralysis or an
injury which resulted in an amputation necessitating a prosthetic
appliance.
(g) The provisions of this section are in addition to and in
no way in derogation of the power and authority vested in the
commissioner division by other provisions of this chapter or vested
in the employer to have a claimant examined by a physician or
physicians of the employer's selection and at the employer's
expense, or vested in the claimant or employer to file a protest, under other provisions of this chapter.
(h) All evaluations and examinations performed by physicians
shall be performed in accordance with the protocols and procedures
established by the health care advisory panel pursuant to section
three-b of this article:
Provided, That the physician may exceed
these protocols when additional evaluation is medically necessary.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist workers to return to
suitable gainful employment after an injury. In order to encourage
workers to return to employment and to encourage and assist
employers in providing suitable employment to injured employees, it
shall be a priority of the
commissioner division to achieve early
identification of individuals likely to need rehabilitation
services and to assess the rehabilitation needs of these injured
employees. It shall be the goal of rehabilitation to return
injured workers to employment which shall be comparable in work and
pay to that which the individual performed prior to the injury. If
a return to comparable work is not possible, the goal of
rehabilitation shall be to return the individual to alternative
suitable employment, using all possible alternatives of job
modification, restructuring, reassignment and training, so that the
individual will return to productivity with his or her employer or,
if necessary, with another employer. The Legislature further finds that it is the shared responsibility of the employer, the employee,
the physician and the
commissioner division to cooperate in the
development of a rehabilitation process designed to promote
reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in
temporary disability in excess of one hundred twenty days, and such
fact has been determined by the
commissioner division, the
commissioner division shall at the earliest possible time determine
whether the employee would be assisted in returning to remunerative
employment with the provision of rehabilitation services and if the
commissioner division determines that the employee can be
physically and vocationally rehabilitated and returned to
remunerative employment by the provision of rehabilitation services
including, but not limited to, vocational or on-the-job training,
counseling, assistance in obtaining appropriate temporary or
permanent work site, work duties or work hours modification, by the
provision of crutches, artificial limbs, or other approved
mechanical appliances, or medicines, medical, surgical, dental or
hospital treatment, the
commissioner division shall forthwith
develop a rehabilitation plan for the employee and, after due
notice to the employer, expend such an amount as may be necessary
for the aforesaid purposes:
Provided, That such expenditure for
vocational rehabilitation shall not exceed ten thousand dollars for any one injured employee:
Provided, however, That no payment shall
be made for such vocational rehabilitation purposes as provided in
this section unless authorized by the
commissioner division prior
to the rendering of such physical or vocational rehabilitation,
except that payments shall be made for reasonable medical expenses
without prior authorization if sufficient evidence exists which
would relate the treatment to the injury and the attending
physician or physicians have requested authorization prior to the
rendering of such treatment: Provided further, That payment for
physical rehabilitation, including the purchase of prosthetic
devices and other equipment and training in use of such devices and
equipment, shall be considered expenses within the meaning of
section three of this article and shall be subject to the
provisions of sections three, three-a, three-b and three-c of this
article. The provision of any rehabilitation services shall be
pursuant to a rehabilitation plan to be developed and monitored by
a rehabilitation professional for each injured employee.
(c) In every case in which the
commissioner division shall
order physical or vocational rehabilitation of a claimant as
provided herein, the claimant shall, during the time he or she is
receiving any vocational rehabilitation or rehabilitative treatment
that renders him or her totally disabled during the period thereof,
be compensated on a temporary total disability basis for such
period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's
average weekly wage earnings are less than the average weekly wage
earnings earned by the injured employee at the time of the injury,
he or she shall receive temporary partial rehabilitation benefits
calculated as follows: The temporary partial rehabilitation
benefit shall be
seventy sixty-six and two-thirds percent of the
difference between the average weekly wage earnings earned at the
time of the injury and the average weekly wage earnings earned at
the new employment, both to be calculated as provided in sections
six, six-d and fourteen of this article as such calculation is
performed for temporary total disability benefits, subject to the
following limitations: In no event shall such benefits be subject
to the minimum benefit amounts required by the provisions of
subdivision (b), section six of this article, nor shall such
benefits exceed the temporary total disability benefits to which
the injured employee would be entitled pursuant to sections six,
six-d and fourteen of this article during any period of temporary
total disability resulting from the injury in the claim:
Provided,
That no temporary total disability benefits shall be paid for any
period for which temporary partial rehabilitation benefits are
paid. The amount of temporary partial rehabilitation benefits
payable under this subsection shall be reviewed every ninety days
to determine whether the injured employee's average weekly wage in the new employment has changed and, if such change has occurred,
the amount of benefits payable hereunder shall be adjusted
prospectively. Temporary partial rehabilitation benefits shall
only be payable when the injured employee is receiving vocational
rehabilitation services in accordance with a rehabilitation plan
developed under this section.
(e) The commissioner shall promulgate rules for the purpose of
developing a comprehensive rehabilitation program which will assist
injured workers to return to suitable gainful employment after an
injury in a manner consistent with the provisions and findings of
this section. Such rules shall provide definitions for
rehabilitation facilities and rehabilitation services pursuant to
this section.
(f) (e) The provisions of this section shall be terminated
and be of no further force or effect on the first day of July, one
thousand nine hundred ninety-eight.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his employment, causes
death, and disability is continuous from date of such injury until
date of death, or if death results from occupational pneumoconiosis
or from any other occupational disease, the benefits shall be in
the amounts and to the persons as follows:
(a) If there be no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of
this article.
(b) If there be dependents as defined in subdivision (d) of
this section, such dependents shall be paid for as long as their
dependency shall continue in the same amount as was paid or would
have been paid the deceased employee for total disability had he
lived. The order of preference of payment and length of dependence
shall be as follows:
(1) A dependent widow or widower until death or remarriage of
such widow or widower, and any child or children dependent upon the
decedent until each such child shall reach eighteen years of age or
where such child after reaching eighteen years of age continues as
a full-time student in an accredited high school, college,
university, business or trade school, until such child reaches the
age of twenty-five years or if an invalid child to continue as long
as such child remains an invalid. All such persons shall be
jointly entitled to the amount of benefits payable as a result of
employee's death.
(2) A wholly dependent father or mother until death.
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee.
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of death, the payment shall be fifty dollars a month, to continue for
such portion of the period of six years after the death, as the
commissioner division may determine, but no such partially
dependent person shall receive compensation payments as a result of
the death of more than one employee.
Compensation under subdivisions (b) and (c) hereof shall,
except as may be specifically provided to the contrary therein,
cease upon the death of the dependent, and the right thereto shall
not vest in his or her estate.
(d) Dependent, as used in this chapter, shall mean a widow,
widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided herein, invalid
child or posthumous child, who, at the time of the injury causing
death, is dependent in whole or part for his or her support upon
the earnings of the employee, stepchild under eighteen years of
age, or under twenty-five years of age when a full-time student as
provided herein, child under eighteen years of age legally adopted
prior to the injury causing death, or under twenty-five years of
age when a full-time student as provided herein, father, mother,
grandfather or grandmother, who at the time of the injury causing
death, is dependent in whole or in part for his or her support upon
the earnings of the employee; and invalid brother or sister wholly
dependent for his or her support upon the earnings of the employee
at the time of the injury causing death.
(e) If a person receiving permanent total disability benefits
dies from a cause other than a disabling injury leaving any
dependents as defined in subdivision (d) of this section, a lump
sum payment shall be made to such dependents in an amount equal to
one hundred four times the weekly benefit the worker was receiving
at the time of his death.
§23-4-15. Application for benefits.
(a) To entitle any employee or dependent of a deceased
employee to compensation under this chapter, other than for
occupational pneumoconiosis or other occupational disease, the
application therefor must be made on the form or forms prescribed
by the
commissioner division and filed
in the office of the
commissioner with the division within
two years six months from and
after the injury or death, as the case may be, and unless so filed
within such
two-year six month period, the right to compensation
under this chapter shall be forever barred, such time limitation
being hereby declared to be a condition of the right and hence
jurisdictional, and all proofs of dependency in fatal cases must
likewise be filed with the
commissioner division within
two years
six months from and after the death. In case the employee is
mentally or physically incapable of filing such application, it may
be filed by his attorney or by a member of his family.
(b) To entitle any employee to compensation for occupational
pneumoconiosis under the provisions hereof, the application therefor must be made on the form or forms prescribed by the
commissioner division and filed
in the office of the commissioner
with the division within three years from and after the last day of
the last continuous period of sixty days or more during which the
employee was exposed to the hazards of occupational pneumoconiosis
or within three years from and after the employee's occupational
pneumoconiosis was made known to him by a physician or which he
should reasonably have known, whichever shall last occur, and
unless so filed within such three-year period, the right to
compensation under this chapter shall be forever barred, such time
limitation being hereby declared to be a condition of the right and
hence jurisdictional, or, in the case of death, the application
shall be filed as aforesaid by the dependent of such employee
within
two years one year from and after such employee's death, and
such time limitation is a condition of the right and hence
jurisdictional.
(c) To entitle any employee to compensation for occupational
disease other than occupational pneumoconiosis under the provisions
hereof, the application therefor must be made on the form or forms
prescribed by the
commissioner division and filed
in the office of
the commissioner with the division within three years from and
after the day on which the employee was last exposed to the
particular occupational hazard involved or within three years from
and after the employee's occupational disease was made known to him by a physician or which he should reasonably have known, whichever
shall last occur, and unless so filed within such three-year
period, the right to compensation under this chapter shall be
forever barred, such time limitation being hereby declared to be a
condition of the right and hence jurisdictional, or, in case of
death, the application shall be filed as aforesaid by the dependent
of such employee within
two years one year from and after such
employee's death, and such time limitation is a condition of the
right and hence jurisdictional.
§23-4-15b. Determination of nonmedical questions by division;
claims for occupational pneumoconiosis; hearing.
If a claim for occupational pneumoconiosis benefits be filed
by an employee within three years from and after the last day of
the last continuous period of sixty days exposure to the hazards of
occupational pneumoconiosis, the
commissioner division shall
determine whether the claimant was exposed to the hazards of
occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within three
years prior to the filing of his or her claim, whether in the state
of West Virginia the claimant was exposed to such hazard over a
continuous period of not less than two years during the ten years
immediately preceding the date of his or her last exposure thereto
and whether the claimant was exposed to such hazard over a period
of not less than ten years during the fifteen years immediately preceding the date of his or her last exposure thereto. If a claim
for occupational pneumoconiosis benefits be filed by an employee
within three years from and after the employee's occupational
pneumoconiosis was made known to the employee by a physician or
otherwise should have reasonably been known to the employee, the
commissioner division shall determine whether the claimant filed
his or her application within said period and whether in the state
of West Virginia the claimant was exposed to such hazard over a
continuous period of not less than two years during the ten years
immediately preceding the date of last exposure thereto and whether
the claimant was exposed to such hazard over a period of not less
than ten years during the fifteen years immediately preceding the
date of last exposure thereto. If a claim for occupational
pneumoconiosis benefits be filed by a dependent of a deceased
employee, the
commissioner division shall determine whether the
deceased employee was exposed to the hazards of occupational
pneumoconiosis for a continuous period of not less than sixty days
while in the employ of the employer within ten years prior to the
filing of the claim, whether in the state of West Virginia the
deceased employee was exposed to such hazard over a continuous
period of not less than two years during the ten years immediately
preceding the date of his or her last exposure thereto and whether
the claimant was exposed to such hazard over a period of not less
than ten years during the fifteen years immediately preceding the date of his or her last exposure thereto. The
commissioner
division shall also determine such other nonmedical facts as may in
the
commissioner's division's opinion be pertinent to a decision on
the validity of the claim.
The
commissioner division shall enter an order with respect to
such nonmedical findings within ninety days following receipt by
the
commissioner division of both the claimant's application for
occupational pneumoconiosis benefits and the physician's report
filed in connection therewith, and shall give each interested party
notice in writing of these findings with respect to all such
nonmedical facts and such findings and such actions of the
commissioner division shall be final unless the employer, employee,
claimant or dependent shall, within thirty days after receipt of
such notice, object to such findings, and unless an objection is
filed within such thirty-day period, such findings shall be forever
final, such time limitation being hereby declared to be a condition
of the right to litigate such findings and hence jurisdictional.
Upon receipt of such objection,
the commissioner shall set a
hearing as provided in section one, article five of this chapter or
the chief administrative law judge shall set a hearing as provided
in section
one-h, nine of article five of this chapter. In the
event of an objection to such findings by the employer, the claim
shall, notwithstanding the fact that one or more hearings may be
held with respect to such objection, mature for reference to the occupational pneumoconiosis board with like effect as if the
objection had not been filed. If the
commissioner or
administrative law judge concludes after the protest hearings that
the claim should be dismissed, a final order of dismissal shall be
entered, which final order shall be subject to appeal in
accordance with the provisions of
section one or section one-i and
section three, sections ten and twelve of article five of this
chapter. If the
commissioner or administrative law judge concludes
after such protest hearings that the claim should be referred to
the occupational pneumoconiosis board for its review, the order
entered shall be interlocutory only and may be appealed only in
conjunction with an appeal from a final order with respect to the
findings of the occupational pneumoconiosis board.
§23-4-16. Division's jurisdiction over case continuous;
modification of finding or order; time limitation
on awards; reimbursement of claimant for expenses;
reopening cases involving permanent total
disability; promulgation of rules.
(a) The power and jurisdiction of the
commissioner division
over each case shall be continuing and
he the division may
, from
time to time, in accordance with the following provisions and after
due notice to the employer, make such modifications or changes with
respect to former findings or orders as may be justified
.:
Provided, That no further award may be made in fatal cases arising after the seventh day of March, one thousand nine hundred twenty-
nine, except within two years after the death of the employee, or
in case of nonfatal injuries, on and after the seventh day of
March, one thousand nine hundred twenty-nine, except within five
years after payments for temporary disability shall have ceased or
not more than two times within five years after the commissioner
shall have made the last payment in the original award or any
subsequent increase thereto in any permanent disability case:
Provided, however, That no such modification or change may be made
in any case in which no award has been made, except within five
years after the date of injury: Provided further, That a further
award may be made for medical benefits only at any time. In any
case in which an injured employee shall make application for a
further adjustment of his claim, if such application be in writing
and filed within the applicable time limit as prescribed herein,
the commissioner shall pass upon and determine the merits of such
application within thirty days after the filing thereof Upon and
after the effective date of this section, the period in which a
claimant may request a modification, change or reopening of a prior
award that was entered either prior to or after the effective date
of this section shall be determined by the following paragraphs of
this subsection. Any such request that is made beyond such period
shall be refused.
(1) In any claim which was closed without the entry of an order regarding the degree, if any, of permanent disability that a
claimant has suffered, any such request must be made within five
years of the date of the closure order. During that time period,
only two such requests may be filed.
(2) Except as stated below, in any claim in which an award of
permanent disability was made, any such request must be made within
five years of the date of the initial award. During that time
period, only two such requests may be filed. With regard to those
occupational diseases, including occupational pneumoconiosis, which
are medically recognized as progressive in nature, if any such
request is granted by the division, then a new five year period
shall begin upon the date of the subsequent award. With the advice
of the health care advisory panel, the commissioner and the
compensation programs performance council shall by rule designate
those progressive diseases which are customarily the subject of
claims.
(3) In a claim by a dependent for the death of an employee,
any such request must be made within two years of the death of the
employee.
(4) With the exception of the items set forth in subsection
(d) of section three of this article, in any claim wherein medical
or any type of rehabilitation service has not been rendered or
durable medical goods or other supplies have not been received for
a period of five years, then no request for additional medical or any type of rehabilitation benefits shall be granted nor shall any
such medical or any type of rehabilitation benefits or any type of
goods or supplies be paid for by the division if such were provided
without a prior request. For the exclusive purposes of this
paragraph (h, medical services and rehabilitation services shall
not include any encounter in which significant treatment was not
performed.
(b) In any claim in which an injured employee shall make
application for a further period of temporary total disability
benefits as noted above, if such application be in writing and
filed within the applicable time limit stated above, then the
division shall pass upon the request within thirty days of the
receipt of the request. If the decision is to grant the request,
then the order shall provide for the receipt of temporary total
disability benefits. In any case in which an injured employee
shall make application for a further award of permanent partial
disability benefits or for an award of permanent total disability
benefits, if such application be in writing and filed within the
applicable time limit as stated above, the division shall pass upon
the request within thirty days of its receipt and, if the division
determines that the claimant may be entitled to an award, the
division will then refer the claimant for such further examinations
as may be necessary.
(b) (c) If such application is based on a report of any medical examination made of the claimant and submitted by the
claimant to the
commissioner division in support of his
or her
application, and the claim is opened for further consideration and
additional award is later made, the claimant shall be reimbursed
for the expenses of such examination. Such reimbursement shall be
made by the
commissioner division to the claimant, in addition to
all other benefits awarded, upon due proof of the amount thereof
being furnished the
commissioner division by the claimant, but
shall in no case exceed the sum fixed pursuant to the
commissioner's division's schedule of maximum reasonable fees
established under the provisions of section three of this article.
(c) (d) The
commissioner division shall have continuing power
and jurisdiction over claims in which permanent total disability
awards have been made after the effective date of this section.
(1) The
commissioner division shall continuously monitor
permanent total disability awards and may from time to time, after
due notice to the claimant, reopen a claim for reevaluation of the
continuing nature of the disability and possible modification of
the award:
Provided, That such reopenings shall not be done sooner
than every two years:
Provided, however, That any individual
claimant shall only be reevaluated a total of two times after which
he or she may not be again reevaluated under the provisions of this
subsection. The
commissioner division may reopen a claim for
reevaluation when, in the
commissioner's division's sole discretion,
he or she it concludes that there exists good cause to
believe that the claimant no longer meets the eligibility
requirements under subdivision
(n), section six of this article.
The eligibility requirements, including any vocational standards,
shall be applied as those requirements are stated at the time of a
claim's reopening. This section shall not be applicable to any
claim in which the final decision on the eligibility of the
claimant to a permanent total disability award was made more than
ten years prior to the date of proposed reevaluation.
(2) Upon reopening a claim under this subsection, the
commissioner division may take evidence, have the claimant
evaluated, make findings of fact and conclusions of law and shall
vacate, modify or affirm the original permanent total disability
award as the record requires. The claimant's former employer shall
not be a party to the reevaluation, but shall be notified of the
reevaluation and may submit such information to the
commissioner
division as the employer may elect. In the event the claimant
retains his or her award following the reevaluation, then the
claimant's reasonable attorneys' fees incurred in defending the
award shall be paid by the workers' compensation division from the
supersedeas reserve of the surplus fund. In addition, the workers'
compensation division shall reimburse a prevailing claimant for his
or her costs in obtaining one evaluation on each issue during the
course of the reevaluation with such reimbursement being made from the supersedeas reserve of the surplus fund. The compensation
programs performance council shall adopt criteria for the
determination of reasonable attorneys' fees.
(3) This subsection shall not be applied to awards made under
the provisions of subdivision (m) of section six of this article.
The claimant may seek review of the
commissioner's division's final
order as otherwise provided for in article five of this chapter for
review of orders granting or denying permanent disability awards.
(e) A claimant may have only one active request for a
permanent disability award pending in a claim at any one time. Any
new such request that is made while another is pending shall be
consolidated into the former request.
§23-4-18. Mode of paying benefits generally; exemptions of
compensation from legal process.
Except as provided by this section, compensation shall be paid
only to such employees or their dependents, and shall be exempt
from all claims of creditors and from any attachment, execution or
assignment other than compensation to counsel for legal services,
under the provisions of, and subject to the limitations contained
in section
five, sixteen of article five of this chapter, and other
than for the enforcement of orders for child or spousal support
entered pursuant to the provisions of chapters forty-eight and
forty-eight-a of this code. Payments may be made in such periodic
installments as determined by the
commissioner division in each case, but in no event less frequently than semimonthly for any
temporary award and monthly for any permanent award. Payments for
permanent disability shall be paid on or before the third day of
the month in which they are due. In all cases where compensation
is awarded or increased, the amount thereof shall be calculated and
paid from the date of disability.
§23-4-24. Permanent total disability awards; retirement age;
limitations on eligibility and the introduction of
evidence; effects of other types of awards;
procedures; requests for awards; jurisdiction.
Notwithstanding any provision of this chapter to the contrary,
from and after the effective date of this section the following
provisions shall be in effect.
(a) Except (a) Notwithstanding any provision of this chapter
to the contrary, except as stated below, no claimant shall be
awarded permanent total disability benefits arising under
subdivision (d) or (n), section six or of section eight-c of this
article who terminates active employment and is receiving full
old-age retirement benefits under the Social Security Act, 42
U.S.C. 401 and 402. Any such claimant shall be evaluated only for
the purposes of receiving a permanent partial disability award
premised solely upon the claimant's impairments. This subsection
shall not be applicable in any claim in which the claimant has
completed the submission of his or her evidence on the issue of permanent total disability prior to the later of the following:
Termination of active employment or the initial receipt of full
old-age retirement benefits under the Social Security Act. Once
the claimant has terminated active employment and has begun to
receive full old-age social security retirement benefits, the
claimant shall not be permitted to produce additional evidence of
permanent total disability before the
commissioner, division or the
office of judges
, the appeal board or the supreme court of appeals
nor shall such a claim be remanded for the production of such
evidence.
(b) For the purposes of
subdivision (d), subdivisions (d) and
(n), section six of this article, the award of permanent partial
disability benefits under the provisions of section six-b of this
article or under that portion of section six-a of this article
which awards twenty weeks of benefits to a claimant who has
occupational pneumoconiosis but without measurable pulmonary
impairment therefrom shall not be counted towards the eighty-five
percent needed to gain the rebuttable presumption of permanent
total disability
or towards the sixty percent threshold of
paragraph (1) of subdivision (n) of section six of this article
when such claimant has terminated active employment and is
receiving federal nondisability pension or retirement benefits,
including old-age benefits under the Social Security Act. This
subsection shall not affect any other awards of permanent partial disability benefits and their use in achieving the rebuttable
eighty-five percent presumption
or the sixty percent threshold.
(c) The
office of judges shall not have workers' compensation
division shall have the sole and exclusive jurisdiction to
initially hear and decide any claim
or request pertaining in whole
or in part to subdivision (d) or (n), section six of this article.
Any claim
or request for permanent total disability benefits
arising under said subdivisions shall first be presented to the
commissioner division as part of the initial claim filing or by way
of an application for modification or adjustment pursuant to
section sixteen of this article
and section one-a, article five of
this chapter. The office of judges may consider such a claim only
after the
commissioner division has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of
disability benefits for wages earned by claimant.
(a) After the effective date of this section, a reduction in
the amount of benefits as specified in subsection (b) of this
section shall be made whenever benefits are being paid for a
permanent total disability award regardless of when such benefits
were awarded. This section is not applicable to the receipt of
medical benefits or the payment therefor, the receipt of permanent
partial disability benefits, the receipt of benefits by partially
or wholly dependant persons, or to the receipt of benefits pursuant
to the provisions of subsection (e), section ten of this article. Prior to the application of this section to any claimant, the
commissioner division shall give the claimant notice of the effect
of this section upon a claimant's award if and when such claimant
later earns wages.
(b) Whenever applicable benefits are paid to a claimant with
respect to the same time period in which the claimant has earned
wages as a result of his or her employment, the following reduction
in applicable benefits shall be made. The claimant's applicable
monthly benefits and monthly net wages received from the current
employment shall be added together. If such total exceeds by more
than one hundred and twenty percent of the amount of the claimant's
monthly net wages earned during his or her last employment prior to
the award of permanent total disability benefits, then such excess
shall be reduced by one dollar for each two dollars that the
claimant's monthly
benefits and monthly net wages exceed the one
hundred and twenty percent level:
Provided, That in no event shall
applicable benefits be reduced below the minimum weekly benefits as
provided for in subdivisions (b) and (d), section six of this
article.
§23-4C-1. Purpose.
The purpose of this article is to
establish a fund permit the
establishment of a system to provide insurance coverage for
employers subject to this chapter who may be subjected to liability
under section two, article four of this chapter, for any excess of damages over the amount received or receivable under this chapter.
§23-4C-2. Employers' excess liability fund established.
(a) To provide insurance coverage for employers subject to
this chapter who may be subjected to liability for any excess of
damages over the amount received or receivable under this chapter,
there is hereby established a the division may continue the fund
to
be known as the employers' excess liability fund, which fund shall
be separate from the workers' compensation fund. The employers'
excess liability fund shall consist of premiums paid thereto by
employers who may voluntarily elect to subscribe to the fund for
coverage of potential liability to any person who may be entitled
to any excess of damages over the amount received or receivable
under this chapter.
(b) The commissioner and the compensation programs
performance council are authorized to provide for, by the
promulgation of a rule pursuant to subdivisions (b) and (c) of
section seven of article three of chapter twenty-one-a of this
code, the continuance, abolition, or sale of the employers' excess
liability fund established by section one of this article In the
event that fund is to be sold, the sale shall be conducted through
the solicitation of competitive bids. Any funds that may remain
after the sale or abolition of the employers' excess liability fund
shall be paid into and become a part of the workers' compensation
fund to be used for the purposes of that fund. In the event that the employer's excess liability fund program is abolished and the
remaining liabilities of that program exceed the amount retained in
the employers' excess liability fund, such excess liability
including the costs of administration shall be paid for from the
workers' compensation fund.
§23-5-1. Notice by
commissioner division of decision; procedures
on claims; objections and hearing; mediation.
(a) The
commissioner workers' compensation division shall have
full power and authority to hear and determine all questions within
his or her its jurisdiction. In matters arising under articles
three and four of this chapter, the
commissioner or a designated
deputy division shall promptly review and investigate all claims.
The parties to a claim shall file such information in support of
their respective positions as they deem proper. In addition, the
commissioner or a designated deputy division is authorized to
develop such additional information as
he or she it deems to be
necessary in the interests of fairness to the parties and in
keeping with
the commissioner's the fiduciary obligations
owed to
the fund. With regard to any issue which is ready for a decision,
the
commissioner or designated deputy division shall explain the
basis of
his or her its decisions.
(b) Except with regard to interlocutory matters, upon making
any decision, upon the making or refusing to make any award, or
upon the making of any modification or change with respect to former findings or orders, as provided by section sixteen, article
four of this chapter, the
commissioner division shall give notice,
in writing, to the employer, employee, claimant, as the case may
be, of
his or her its action, which notice shall state the time
allowed for filing an objection to such finding, and such action of
the
commissioner division shall be final unless the employer,
employee, claimant or dependant shall, within thirty days after the
receipt of such notice, object in writing, to such finding, and
unless an objection is filed within such thirty-day period, such
finding or action shall be forever final, such time limitation
being hereby declared to be a condition of the right to litigate
such finding or action and hence jurisdictional. Any such
objection shall be filed with the office of judges with a copy
served upon the
commissioner division and other parties in
accordance with the procedures set forth in sections
one-g and
one-h eight and nine of this article.
(c) Where a finding or determination of the
commissioner
division is protested only by the employer, and the employer does
not prevail in its protest and, in the event the claimant is
required to attend a hearing by subpoena or agreement of counsel or
at the express direction of the
commissioner division or office of
judges, then such claimant in addition to reasonable traveling and
other expenses shall be reimbursed for loss of wages incurred by
the claimant in attending such hearing.
(d) Once an objection has been filed with the office of
judges, the parties to the objection shall be offered an
opportunity for mediation of the disputed issue by the
commissioner
division If all of the parties to the objection agree to
mediation, the
commissioner division shall designate a deputy who
was not involved in the original decision to act as mediator:
Provided, That on issues related solely to the medical necessity
of proposed medical treatment or diagnostic services, the
commissioner division shall offer the parties to the objection a
selection of names of medical providers in the appropriate
specialty. The parties shall then either agree upon a medical
provider who shall act as mediator or, in the absence of an
agreement, the
commissioner division shall select a medical
provider who shall act as mediator. In cases where issues of
medical necessity are intertwined with nonmedical treatment or
nondiagnostic issues, both a medical provider and a designated
deputy shall act as comediators and shall consider their respective
issues. Neither shall be empowered to overturn the decision of the
other.
Upon entering into mediation, the parties shall inform the
office of judges of that action and the office of judges shall stay
further action on the objection.
The mediator shall solicit the positions of the parties and
shall review such additional information as the parties or the
commissioner division shall furnish. The mediator shall then issue
a decision in writing with the necessary findings of fact and
conclusions of law to support that decision. If any party
disagrees with the decision, that party may note its objection to
the office of judges, the
commissioner division and the other
parties, and the office of judges shall lift the stay on the
original protest. The decision and any information introduced
during the attempted mediation shall be subject to consideration by
the office of judges in making its decision on the objection. Upon
acceptance by the parties of the result of the mediation, the
office of judges shall dismiss the objection with prejudice.
The mediator shall conduct the mediation in an informal manner
and without regard to the formal rules of evidence and procedure.
Once the parties agree to mediation, then the agreement cannot be
withdrawn.
(e) The panel of medical providers who shall serve as
mediators shall be selected and approved by the compensation
programs performance council. A medical provider serving as a
mediator shall have the same protections from liability as does the
commissioner division's employees with regard to
his or her their
decisions including coverage by the board of risk management which
shall be provided by the workers' compensation division.
(f) The division is expressly authorized to amend, correct, or
set aside any order on any issue entered by it which is on its face defective or clearly erroneous or the result of mistake, clerical
error or fraud. Jurisdiction to take this action shall continue
until the expiration of one hundred and eighty days from the date
of entry of an order unless the order is sooner affected by
appellate action: Provided, That corrective actions in the case of
fraud may be taken at any time.
(g) All objections to orders of the division shall be styled
in the name of the workers' compensation division and not in the
name of any individual. Similarly, all appeals prosecuted from the
office of judges or from the appeals board shall either be in the
name of the workers' compensation division or shall be against the
workers' compensation division and not in the name of any
individual. In all such matters, the workers' compensation division
shall be the party in interest.
§23-5-2. Application by employee for further adjustment of claim
-- Objection to modification; hearing.
In any case where an injured employee makes application in
writing for a further adjustment of his or her claim under the
provisions of section sixteen, article four of this chapter, and
such application discloses cause for a further adjustment thereof,
the
commissioner division shall, after due notice to the employer,
make such modifications, or changes with respect to former
findings or orders in such claim as may be justified, and any party
dissatisfied with any such modification or change so made by the
commissioner division shall, upon proper and timely objection, be
entitled to a hearing, as provided in section
one
or section one-h nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
If, however, in any case in which application for further
adjustment of a claim is filed under the next preceding section, it
shall appear to the
commissioner division that such application
fails to disclose a progression or aggravation in the claimant's
condition, or some other fact or facts which were not theretofore
considered by the
commissioner in his or her division in its former
findings, and which would entitle such claimant to greater benefits
than the claimant has already received, the
commissioner division
shall, within a reasonable time, notify the claimant and the
employer that such application fails to establish a prima facie
cause for reopening the claim. Such notice shall be in writing
stating the reasons for denial and the time allowed for objection
to such decision of the
commissioner division. The claimant may,
within thirty days after receipt of such notice, object in writing
to such finding and unless the objection is filed within such
thirty-day period, no such objection shall be allowed, such time
limitation being hereby declared to be a condition of the right to
such objection and hence jurisdictional. Upon receipt of an
objection, the
commissioner or office of judges shall afford the
claimant an evidentiary hearing as provided in section
one or one-h nine of this article.
§23-5-4. Application by employer for modification of award --
Objection to modification; hearing.
In any case wherein an employer makes application in writing
for a modification of any award previously made to an employee of
said employer, and such application discloses cause for a further
adjustment thereof, the
commissioner division shall, after due
notice to the employee, make such modifications or changes with
respect to former findings or orders in such form as may be
justified, and any party dissatisfied with any such modification or
change so made by the
commissioner division, shall upon proper and
timely objection, be entitled to a hearing as provided in section
one or section one-h nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any such case it shall appear to the
commissioner
division that such application fails to disclose some fact or facts
which were not theretofore considered by the
commissioner in his or
her division in its former findings, and which would entitle such
employer to any modification of said previous award, the
commissioner division shall, within sixty days from the receipt of
such application, notify the claimant and employer that such
application fails to establish a just cause for modification of
said award. Such notice shall be in writing stating the reasons
for denial and the time allowed for objection to such decision of the
commissioner division. The employer may, within thirty days
after receipt of said notice, object in writing to such decision,
and unless the objection is filed within such thirty-day period, no
such objection shall be allowed, such time limitation being hereby
declared to be a condition of the right to such objection and hence
jurisdictional. Upon receipt of such objection, the
commissioner
or office of judges shall afford the employer an evidentiary
hearing as provided in section
one or section one-h nine of this
article.
§23-5-6. Time periods for objections and appeals; extensions.
Notwithstanding the fact that the time periods set forth for
objections, protests, and appeals to or from the workers'
compensation appeal board, are jurisdictional, such periods may be
extended or excused upon application of either party within a
period of time equal to the applicable period by requesting an
extension of such time period showing good cause or excusable
neglect, accompanied by the objection, protest, or appeal petition.
In exercising such discretion the
commissioner, administrative law
judge, appeal board, or court, as the case may be, shall consider
whether the applicant was represented by counsel and whether timely
and proper notice was actually received by the applicant or the
applicant's representative.
§23-5-7. Compromise and settlement.
(a) After an objection is filed to a commissioner's decision either granting a permanent partial disability award of fifteen
percent or less, or making no award upon a finding that no
permanent partial disability was suffered as the result of the
injury received, the parties may agree to compromise and settle the
award in controversy under the conditions and limitations set out
in this section. In addition, a reopening petition resulting in an
increased permanent partial disability award of fifteen percent or
less may similarly be compromised and settled. No other types of
settlements shall be permitted. The terms of such settlement shall
be reviewed by the administrative law judge as herein provided.
(b) In any claim involving an employer not electing to carry
its own risk within the meaning of section nine, article two of
this chapter, the parties shall notify the commissioner of their
intent to settle a claim and the commissioner may participate, at
his or her discretion, as a party in interest in any settlement
proceeding under this section.
(c) The parties seeking to settle and compromise an objection
to a commissioner's decision described in subsection (a) of this
section shall jointly file with the chief administrative law judge
a written memorandum of settlement, signed by all parties in
interest. An administrative law judge shall review the written
memorandum to determine if it is reasonable and fair, after giving
due consideration to the interests of all parties, and if it is in
conformity with the provisions of this chapter. The administrative law judge, in his or her discretion, may hear testimony relating to
any proposed settlement. If the administrative law judge finds the
settlement to be fair and reasonable, he or she shall issue an
order so finding which shall, for all purposes, constitute an order
appealable to the appeal board as provided under sections one and
three of this article. If the settlement is not approved by the
administrative law judge, the settlement agreement between the
parties shall be null and void, and the administrative law judge
shall issue an order so finding which shall be appealable to the
appeal board.
(d) A settlement may provide for a final award of greater than
fifteen percent permanent partial disability: Provided, That no
settlement shall be approved
which provides for or would result in
a permanent total disability or second injury life award.
(e) The amounts of compensation payable under a settlement may
be commuted to one or more lump sum payments by agreement of the
parties.
(f) A party seeking to vacate an order approving a settlement
on the grounds that a settlement was obtained by fraud, undue
influence or coercion shall file a petition therefor with the
office of judges within six months after the date of the order
approving the settlement. The petition shall set forth in
particular the facts upon which the grounds alleged therein are
based and shall be served upon all other parties to the settlement. Upon request by any party to the settlement, the chief
administrative law judge shall set the matter down for hearing. At
the conclusion thereof, the chief administrative law judge shall
enter an order setting forth his or her findings of fact and
conclusions of law, which order shall be appealable to the appeal
board. Upon a finding, by clear and convincing evidence, that the
settlement was obtained by fraud, undue influence or coercion, the
chief administrative law judge shall vacate and set aside the order
approving the settlement.
(g) A settlement approved by the administrative law judge
shall be final and binding as to the particular award in
controversy but shall not affect any right under article four of
this chapter to future medical benefits, to physical and vocational
rehabilitation, or the right to seek a reopening of the claim
pursuant to section sixteen, article four of this chapter and
section one-a of this article.
(h) For matters pending before the commissioner on the first
day of July, one thousand nine hundred ninety, or thereafter, the
foregoing procedures for settlement shall apply except the
commissioner shall act in the place of the administrative law judge
or chief administrative law judge.
The claimant and the employer, with the consent and approval
of the workers' compensation division, may negotiate a final
settlement of any and all issues in a claim wherever the claim may then be in the review or appellate processes. If the employer is
not active in the claim, then the division may negotiate a final
settlement of any and all issues in a claim with the claimant. The
parties seeking to settle and compromise an objection to a division
decision shall file the written and executed agreement with the
division. The division shall review the proposed agreement to
determine if it is fair and reasonable to the parties and shall
ensure that each of the parties are fully aware of the effects of
the agreement including what each party is giving up in exchange
for the agreement. If the division concludes that the agreement is
not fair or is not reasonable or that one of the parties is not
fully informed, then the division shall reject the agreement. Upon
the approval of the agreement, the agreement shall be filed with
the division's records which filing shall constitute a dismissal of
any objection or appeal on the issues agreed to and the division
will give notice of the settlement and dismissal, if necessary, to
the office of judges, the appeal board, or the supreme court of
appeals. Once any such agreement is accepted by the parties and
the division, any issue that is the subject of the agreement shall
not be reopened by either party or by the division. Any such
agreement may provide for a lump sum payment which shall not exceed
a percentage of the entire settlement to be determined from time to
time by the compensation programs performance council in keeping
with the necessity to protect the claimant, the employer, and the solvency of the workers' compensation fund. The remainder of any
such settlement shall be paid out over time as would have been the
case had an award been made. If a settlement provides for both
future medical or rehabilitation costs and a degree of permanent
partial disability, then the agreed upon degree of permanent
partial disability shall be stated in the agreement. That degree
of permanent partial disability shall then be entered upon the
records of the division as the award in the claim. In the event
that an employer agrees to settle an issue which settlement is to
be paid directly by the employer, then the amount so paid or to be
paid shall be a portion of the employer's premium tax as that term
is used in article two of this chapter. If such employer later
fails to make the agreed upon payment, the division shall assume
the obligation to make the payments and shall be entitled to
recover the amounts paid or to be paid from the employer as
provided for in sections five and five-a of article two of this
chapter.
§23-5-8. Continuation of office of administrative law judges;
powers of chief administrative law judge and said
office.
(a) There is hereby continued within the workers' compensation
appeal board the workers' compensation office of administrative law
judges which shall be referred to as the office of judges. The
workers' compensation office of administrative law judges previously created pursuant to chapter twelve, acts of the
legislature, one thousand nine hundred ninety, second extraordinary
session, is hereby continued and designated to be an integral part
of the workers' compensation system of this state. The office of
judges shall be under the supervision of a chief administrative law
judge who shall be appointed by the governor, with the advice and
consent of the Senate.
The previously appointed incumbent of that
position who is serving at the effective date of this section shall
continue to serve in that capacity unless subsequently removed as
provided for in subsection (b) of this section.
(b) The chief administrative law judge shall be a person who
has been admitted to the practice of law in this state and shall
also have had at least four years of experience as an attorney.
The chief administrative law judge's salary shall be set by the
appeal board created in section two of this article compensation
programs performance council created in section one, article three
of chapter twenty-one-a of this code. Said salary shall be within
the salary range for comparable chief administrative law judges as
determined by the state personnel board created by section six,
article six of chapter twenty-nine of this code. The chief
administrative law judge may only be removed by the
appeal board
compensation programs performance council and shall not be removed
except for official misconduct, incompetence, neglect of duty,
gross immorality, or malfeasance and then only after he or she has been presented in writing with the reasons for his or her removal
and
then only in the manner prescribed in article six-a of chapter
twenty-nine of this code and is given an opportunity to respond.
No other provision of this code purporting to limit the term of
office of any appointed official or employee or affecting the
removal of any appointed official or employee shall be applicable
to the chief administrative law judge.
(c) By and with the consent of the commissioner, the chief
administrative law judge shall employ
such additional
administrative law judges and other personnel as are necessary for
the proper conduct of a system of administrative review of orders
issued by the
commissioner workers' compensation division which
orders have been objected to by a party, and all such employees
shall be in the classified service of the state. Qualifications,
compensation and personnel practice relating to the employees of
the office of judges, other than the chief administrative law
judge, shall be governed by the provisions of the statutes, rules
and regulations of the classified service pursuant to article six,
chapter twenty-nine of this code. All such additional
administrative law judges shall be persons who have been admitted
to the practice of law in this state and shall also have had at
least two years of experience as an attorney. The chief
administrative law judge shall supervise the other administrative
law judges and other personnel which collectively shall be referred to in this chapter as the office of judges.
(d) The administrative expense of the office of judges shall
be included
by the appeal board in its within the annual budget
when it submits that budget to the commissioner pursuant to section
two of this article of the workers' compensation division.
(e)
With the advice and consent of the commissioner, on or
before the first day of May, one thousand nine hundred ninety-one,
the appeal board Subject to the approval of the compensation
programs performance council pursuant to subdivisions (b) and (c)
of section seven of article three of chapter twenty-one-a of this
code, the office of judges shall
from time to time promulgate rules
of practice and procedure for the hearing and determination of all
objections to findings or orders of the
commissioner workers'
compensation division pursuant to section one of this article
and
for the settlement of claims pursuant to section one-f of this
article.
Such rules of practice and procedure shall be promulgated
in accordance with the provisions of article three of chapter
twenty-nine-a of this code. The
appeal board office of judges
shall not have the power to
initiate or to promulgate legislative
rules as that phrase is defined in article three of chapter
twenty-nine-a of this code.
(f)
On and after the first day of July, one thousand nine
hundred ninety-one, the The chief administrative law judge shall
continue to have the power
, which shall be delegated by the appeal board, to hear and determine all disputed claims in accordance with
the provisions of this article, establish a procedure for the
hearing of disputed claims, take oaths, examine witnesses, issue
subpoenas, establish the amount of witness fees, keep such records
and make such reports as are necessary for disputed claims,
review
and approve agreements to compromise and settle claims involving
permanent partial disability awards permitted by the provisions of
section one-f, article five of this chapter, and exercise such
additional powers, including the delegation of such powers to
administrative law judges or hearing examiners as may be necessary
for the proper conduct of a system of administrative review of
disputed claims.
The chief administrative law judge shall make
such reports as may be requested of him or her by the compensation
programs performance council.
(g) Pursuant to the provisions of chapter four, article ten of
this code, the office of judges shall continue to exist until the
first day of July, one thousand nine hundred ninety-six, to allow
for the completion of a preliminary performance review by the joint
committee on government operations.
§23-5-9. Hearings on objections to
commissioner's division
decisions by office of administrative law judges.
On or after the first day of July, one thousand nine hundred
ninety-one, objections Objections to a
commissioner's workers'
compensation division decision made pursuant to the provisions of section one of this article shall be filed with the office of
judges. Upon receipt of an objection, the office of judges shall,
within fifteen days from receipt thereof, set a time and place for
the hearing of evidence and shall notify the
commissioner division
of the filing of the objection. Hearings may be conducted at the
county seat of the county wherein the injury occurred, or at any
other place which may be agreed upon by the interested parties, and
in the event the interested parties cannot agree, and it appears in
the opinion of the chief administrative law judge or the chief
administrative law judge's authorized representative that the ends
of justice require the taking of evidence elsewhere, then at such
place as the chief administrative law judge or such authorized
representative may direct, having due regard for the convenience of
witnesses. The employer, the claimant and the
commissioner
division shall be notified of such hearing at least ten days in
advance, and the hearing shall be held within thirty days after the
filing of the objection unless such hearing be postponed by
agreement of the parties or by the chief administrative law judge
or such authorized representative for good cause. The
commissioner
division shall be a party to any proceeding under this article
which involves a claim chargeable against the workers' compensation
fund, the disabled workers' relief fund or such other fund as may
then be under the commissioner's management and control.
The office of judges shall keep full and complete records of all proceedings concerning a disputed claim. All testimony upon a
disputed claim shall be recorded but need not be transcribed unless
the claim is appealed or in such other circumstances as, in the
opinion of the chief administrative law judge, may require such
transcription. Upon receipt of notice of the filing of an
objection, the
commissioner division shall forthwith forward to the
chief administrative law judge all records, or copies of such
records
, in the commissioner's office which relate to the matter
objected to. All such records or copies thereof and any evidence
taken at hearings conducted by the office of judges shall
constitute the record upon which the matter shall be decided. The
office of judges shall not be bound by the usual common law or
statutory rules of evidence. At any time within thirty days after
hearing, if the chief administrative law judge or the chief
administrative law judge's authorized representative is of the
opinion that the facts have not been adequately developed at such
hearing, he or she may order supplemental hearings or obtain such
additional evidence as he or she deems warranted upon due notice to
the parties.
All hearings shall be conducted as determined by the chief
administrative law judge pursuant to the rules of practice and
procedure promulgated pursuant to section
one-g eight of this
article. Upon consideration of the entire record, the chief
administrative law judge or an administrative law judge within the office of judges shall, within thirty days after final hearing,
render a decision affirming, reversing or modifying the
commissioner's division's action. Said decision shall contain
findings of fact and conclusions of law and shall be mailed to all
interested parties.
§23-5-10. Appeal from administrative law judge decision to appeal
board.
The employer, claimant or
commissioner workers' compensation
division may appeal to the appeal board created in section
two
eleven of this article for a review of a decision by an
administrative law judge. No appeal or review shall lie unless
application therefor be made within thirty days of receipt of
notice of the administrative law judge's final action or in any
event within sixty days of the date of such final action,
regardless of notice and, unless the application for appeal or
review is filed within the time specified, no such appeal or review
shall be allowed, such time limitation being hereby declared to be
a condition of the right of such appeal or review and hence
jurisdictional.
§23-5-11. Workers' compensation appeal board -- Generally.
There shall be a board to be known as the "Workers'
Compensation Appeal Board", which shall be referred to in this
article as the "board", to be composed of three members.
The board
shall perform the duties and responsibilities assigned to it by this code consistent with the administrative policies developed by
the governor and the commissioner with the assistance of the
compensation programs performance council.
Two members of such board shall be of opposite politics to the
third, and all three shall be citizens of this state who have
resided therein for a period of at least five years. All members
of the board shall be appointed by the governor and shall receive
an annual salary in accordance with the provisions of section two-
a, article seven, chapter six of this code. The salaries shall be
payable in monthly installments, and the members shall also be
entitled to all reasonable and necessary traveling and other
expenses actually incurred while engaged in the performance of
their duties. The governor shall designate one of the members of
the board as chairman thereof, and the board shall meet at the
capitol or at such other places throughout the state as it may
consider proper at regular sessions designated as "Appeal Board
Hearing Days" commencing on the first Tuesday of every month or the
next regular business day, for a period of at least three days, for
the purpose of conducting hearings on appeals, and continuing as
long as may be necessary for the proper and expeditious transaction
of the hearings, decisions and other business before it. All
clerical services required by the board shall be paid for by the
commissioner from any funds at his
or her disposal. The board
shall, from time to time, compile and promulgate such rules of practice and procedure as to it shall appear proper for the prompt
and efficient discharge of its business and such rules shall be
submitted
first to the compensation programs performance council
for its approval pursuant to subdivisions (b) and (c) of section
seven of article three of chapter twenty-one-a of this code and, if
so approved, then to the supreme court of appeals for approval, and
if approved by such court shall have the same force and effect as
the approved rules of procedure of circuit courts.
The By and with
the consent of the commissioner, the board shall employ such
clerical staff as may be necessary for the efficient conduct of its
business
but the number of such employees shall not exceed four.
Salaries of the board, and its employees, and all of its necessary
operating expenses shall be paid from the workers' compensation
fund. The board shall submit its annual budget to the commissioner
for inclusion as a separate item in the budget estimates prepared
by him
or her annually and within the limits of such budget, all
expenses of the board shall be by the requisition of the
commissioner. Salaries of the employees of the board shall be
fixed by the board governed by the provisions of article six,
chapter twenty-nine of this code.
The board shall report monthly to the
governor and
commissioner compensation programs performance council on the
status of all claims on appeal.
§23-5-12. Appeal to board; procedure; remand and supplemental hearing.
(a) Any employer, employee, claimant or dependent, who shall
feel aggrieved at any final action of the
commissioner or
administrative law judge taken after a hearing held in accordance
with the provisions of section
one or section one-h nine of this
article, shall have the right to appeal to the board created in
section
two eleven of this article for a review of such action.
The
commissioner workers' compensation division shall likewise have
the right to appeal to the appeal board any final action taken
in
proceeding in which he or she is a party by the administrative law
judge. The aggrieved party shall file a written notice of appeal
with
the compensation commissioner or, after the first day of July,
one thousand nine hundred ninety-one, with the office of judges
directed to such board, within thirty days after receipt of notice
of the action complained of, or in any event, regardless of notice,
within sixty days after the date of the action complained of, and
unless the notice of appeal is filed within the time specified, no
such appeal shall be allowed, such time limitation being hereby
declared to be a condition of the right to such appeal and hence
jurisdictional; and the
commissioner or the office of judges shall
notify the other parties immediately upon the filing of a notice of
appeal. The
commissioner or the office of judges shall forthwith
make up a transcript of the proceedings before the
commissioner or
the office of judges and certify and transmit the same to the board. Such certificate shall incorporate a brief recital of the
proceedings therein had and recite each order entered and the date
thereof.
(b) The board shall review the action of the
commissioner or
administrative law judge complained of at its next meeting after
the filing of notice of appeal, provided such notice of appeal
shall have been filed thirty days before such meeting of the board,
unless such review be postponed by agreement of parties or by the
board for good cause. The board shall set a time and place for the
hearing of arguments on each claim and shall notify the interested
parties thereof, and briefs may be filed by the interested parties
in accordance with the rules of procedure prescribed by the board.
The board may affirm the order or decision of the administrative
law judge or remand the case for further proceedings. It shall
reverse, vacate or modify the order or decision of the
administrative law judge if the substantial rights of the
petitioner or petitioners have been prejudiced because the
administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of
the administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) And thereupon, after After a review of the case, the
board shall sustain the finding of the
commissioner or
administrative law judge, in which case it need not make findings
of fact or conclusions of law, or enter such order or make such
award as the
commissioner or administrative law judge should have
made, stating in writing its reasons therefor, and shall thereupon
certify the same to the
commissioner, or workers' compensation
division and chief administrative law judge, who shall proceed in
accordance therewith.
(d) Or, instead Instead of affirming
or, reversing
, or
modifying the decision of the
commissioner or administrative law
judge as aforesaid, the board may, upon motion of
either any party
or upon its own motion, for good cause shown, to be set forth in
the order of the board, remand the case to the
commissioner or
chief administrative law judge for the taking of such new,
additional or further evidence as in the opinion of the board may
be necessary for a full and complete development of the facts of
the case. In the event the board shall remand the case to the
commissioner or chief administrative law judge for the taking of
further evidence therein, the
commissioner or administrative law
judge shall proceed to take such new, additional or further evidence in accordance with any instruction given by the board, and
shall take the same within thirty days after receipt of the order
remanding the case, giving to the interested parties at least ten
days' written notice of such supplemental hearing, unless the
taking of evidence shall be postponed by agreement of parties, or
by the
commissioner or administrative law judge for good cause.
After the completion of such supplemental hearing, the
commissioner
or administrative law judge shall, within sixty days, render his or
her decision affirming, reversing or modifying the former action of
the
commissioner or administrative law judge, which decision shall
be appealable to, and proceeded with by the appeal board in like
manner as in the first instance.
In addition, upon a finding of
good cause, the board may remand the case to the workers'
compensation division for further development. Any decision made
by the division following such a remand shall be subject to
objection to the office of judges and not to the board. The board
may remand any case as often as in its opinion is necessary for a
full development and just decision of the case.
The board may take
evidence or consider ex parte statements furnished in support of
any motion to remand the case to the commissioner or chief
administrative law judge. All evidence taken by or filed with the
board shall become a part of the record. All appeals from the
action of the
commissioner or administrative law judge shall be
decided by the board at the same session at which they are heard, unless good cause for delay thereof be shown and entered of record.
In all proceedings before the board, any party may be represented
by counsel.
§23-5-13. Continuances and supplemental hearings; claims not to
be denied on technicalities.
It is the policy of this chapter that the rights of claimants
for workers' compensation be determined as speedily and
expeditiously as possible to the end that those incapacitated by
injuries and the dependents of deceased workers may receive
benefits as quickly as possible in view of the severe economic
hardships which immediately befall the families of injured or
deceased workers. Therefore, the criteria for continuances and
supplemental hearings "for good cause shown" are to be strictly
construed by the
commissioner and chief administrative law judge
and
their his or her authorized representatives to prevent delay
when granting or denying continuances and supplemental hearings.
It is also the policy of this chapter to prohibit the denial of
just claims of injured or deceased workers or their dependents on
technicalities.
§23-5-14. Disqualification of board members.
In any appeal wherein a board member is a party, or is
interested in the results thereof otherwise than as a general
subscriber to the compensation fund, or he
or she is connected with
a contributor therein, or is a beneficiary therein, or is connected with a beneficiary therein, he
or she shall be disqualified from
participating in the hearing and determination of such appeal.
§23-5-15. Appeals from final decisions of board to supreme court
of appeals; procedure; costs.
From any final decision of the board, including any order of
remand, an application for review may be prosecuted by either
party
, or by the commissioner, or by the workers' compensation
division to the supreme court of appeals within thirty days from
the date thereof by the filing of a petition therefor to such court
against the board and the adverse party
(claimant or employer, as
the case may be) or parties as respondents, and unless the petition
for review is filed within such thirty-day period, no such appeal
or review shall be allowed, such time limitation being hereby
declared to be a condition of the right to such appeal or review
and hence jurisdictional; and the clerk of such court shall notify
each of the respondents and the
commissioner workers' compensation
division of the filing of such petition. The board shall, within
ten days after receipt of such notice, file with the clerk of the
court the record of the proceedings had before it, including all
the evidence. The court or any judge thereof in vacation may
thereupon determine whether or not a review shall be granted. And
if granted to a nonresident of this state, he
or she shall be
required to execute and file with the clerk before such order or
review shall become effective, a bond, with security to be approved by the clerk, conditioned to perform any judgment which may be
awarded against
him or her thereon. The board may certify to the
court and request its decision of any question of law arising upon
the record, and withhold its further proceeding in the case,
pending the decision of court on the certified question, or until
notice that the court has declined to docket the same. If a
review be granted or the certified question be docketed for
hearing, the clerk shall notify the board and the parties litigant
or their attorneys and the
commissioner workers' compensation
division, of that fact by mail. If a review be granted or the
certified question docketed, the case shall be heard by the court
in the same manner as in other cases, except that neither the
record nor briefs need be printed. Every such review granted or
certified question docketed prior to thirty days before the
beginning of the term, shall be placed upon the docket for such
term. The attorney general shall, without extra compensation,
represent the board in such cases. The court shall determine the
matter so brought before it and certify its decision to the board
and to the
commissioner division. The cost of such proceedings on
petition, including a reasonable attorney's fee, not exceeding
thirty dollars to the claimant's attorney, shall be fixed by the
court and taxed against the employer if the latter be unsuccessful,
and if the claimant, or the
commissioner division (in case the
latter be the applicant for review) be unsuccessful, such costs, not including attorney's fees, shall be taxed against the
commissioner division, payable out of
any funds available in his
hands the workers' compensation fund, or shall be taxed against the
claimant, in the discretion of the court. But there shall be no
cost taxed upon a certified question.
§23-5-4a. Appeals from final decision of board to supreme court of
appeals -- Weight of board's findings of fact.
In a judicial proceeding to review a decision of the board,
the findings of fact of the board shall have like weight to that
accorded to the findings of facts of a trial chancellor or judge in
equity procedure.
§23-5-16. Fees of attorney for claimant; unlawful charging or
receiving of attorney fees.
On or after the first day of July, one thousand nine hundred
seventy-five, no No attorney's fee in excess of twenty percent of
any award granted shall be charged or received by an attorney for
a claimant or dependent. In no case shall the fee received by the
attorney of such claimant or dependent be in excess of twenty
percent of the benefits to be paid during a period of two hundred
eight weeks.
This section shall not apply to any contract for
legal services made prior to the first day of July, one thousand
nine hundred seventy-five: Provided, That the The interest on
disability or dependent benefits as provided for in this chapter
shall not be considered as part of the award in determining any such attorney's fee. However, any contract entered into in excess
of twenty percent of the benefits to be paid during a period of two
hundred eight weeks, as herein provided, shall be unlawful and
unenforceable as contrary to the public policy of this state and
any fee charged or received by an attorney in violation thereof
shall be deemed an unlawful practice and render the attorney
subject to disciplinary action.
NOTE: The purpose of this bill is to effect a general
revision of code provisions governing workers' compensation.
§22-3-8 - amended to require annual proof of good standing
with workers' compensation fund in order for employer to retain
permit for surface-mining operations.
§23-1-1 - amended to permit commissioner to retain counsel to
represent the bureau in courts and administrative bodies.
§23-1-4 - amended to change title of executive secretary of
workers' compensation division to executive director; amended to
clarify what information from claimant and employer files can be
released pursuant to freedom of information act.
§23-1-11 - amended to clarify who the parties can be in
hearings and investigations conducted by the division.
§23-1-13 - amended to provide that notice to a party's
attorney is sufficient notice to the party; conforming amendments
to reflect that the division is the proper party for defending
claims and other decisions.
§23-1-16 - amended to rewrite criminal provisions related to
employer failure to subscribe to the fund, to make wage reports and
premium payments; to add Kanawha county as a place of venue for
prosecutions; and to rewrite criminal provisions for perjury and
false statements; penalties are rewritten and a second offender
provision is added for employers.
§23-1-18 - this is a new section specifying that division
employees cannot be required to testify regarding their decisions
in hearings before the office of judges.
§23-2-1 - amended to provide coverage for volunteer rescue
squads, volunteer police auxiliary, and volunteer emergency service
organizations; further amended to prevent coverage of claims by
officers, owners and other officials of employers where the
employer fails to subscribe to the fund; defines "regularly
employing" and provides criteria for determining who is an
independent contractor.
§23-2-1d - amended to simplify process for a primary
contractor to determine if one of its subcontractors has defaulted
on its obligations to the fund and thus avoid assuming that
liability.
§23-2-3 - amended to clarify the division's obligation to
provide forms for employer use.
§23-2-4 - amended to permit compensation programs performance
council to adopt by rule a new system of classification of
industries and premium tax rate setting methodology in conformity
with practices in the insurance industry and generally accepted
accounting principles.
§23-2-5 - amended to clarify issues regarding collections
procedures and repayment agreements for defaulted employers;
amended to allow annual filing of reports by certain employers in
lieu of quarterly reporting as specified in the rule under 23-2-4;
changes fee for employers reporting no employees from $10 to $25
per quarter; changes fee for late reporting of wages and payment of
premiums to $50 or 10% of premium tax due not to exceed $500;
allows for the use of an emergency rule to determine what amount of
defaulted premium must be paid along with an application for
reinstatement by a defaulted employer; provides that premium
deposits will not be refunded if the employer otherwise owes the
division or owes another agency of the state; amended to reflect
that the premium obligations of employers are premium taxes so that
defaulted premium obligations will be afforded priority status in
bankruptcy matters.
§23-2-9 - rewrites entire self insurance section to simplify
section's requirements; to eliminate out dated provisions; to
strengthen division's ability to set and require adequate security;
to provide that premium taxes for self insurers will be set under
the rules adopted to implement 23-2-4; to permit the performance
council to adopt and implement a program by which qualified self
insurers can administer their programs for the delivery of workers'
compensation benefits to their injured employees.
§23-2-14 - amended to strengthen division's ability to collect monies owed to it from successor employers where the predecessor
employer's ability to continue to do business will be ended by the
sale or transfer; liabilities of predecessor will be assumed by
successor unless successor ensures that proceeds of sale are used
to retire the obligation.
§23-2-15 - amended to delete language that is preempted by
amendments to 23-2-14; adds a criterium for determining whether to
waive successor employer's liability or assumption of predecessor's
premium rate.
§23-2A-1 - amended to expand the amounts that the division can
recover through subrogation against a claimant's recovery of
damages from a responsible third party. All benefits paid at the
time of verdict or settlement will be recoverable rather than just
medical payments; limit on subrogation amount to fifty percent of
verdict amount or settlement amount is retained; amended to clarify
that the subrogation provided is not equitable subrogation but is
statutory subrogation in order to avoid release of division's and
self insurer's right of subrogation against claimants who allege
they are not made whole by the verdict or settlement.
§23-3-1 - amended to reflect that surplus fund premium taxes
are to be set pursuant to the rules adopted to implement 23-2-4;
amended to reflect that for second injury purposes the first injury
must be occupational in nature; amended to require that the issue
of entitlement to a permanent total disability award be decided
prior to determining whether the costs will be assumed by the
second injury reserve; amended to remove duplicative language
regarding rules; and amended to reflect that the performance
council may adopt rules by which second injury reserve coverage
would be limited to self insurers if the rate setting methodology
adopted pursuant to 23-2-4 eliminates the need for such coverage
for subscribers.
§23-3-4 - A new section which provides that unclaimed checks
from the workers' compensation fund and the other chapter funds
will not be treated as abandoned property but will be redeposited
in the appropriate fund; also provides that all interest earned on
chapter 23 funds are to be deposited into those funds.
§23-3-5 - A new section which permits the division to
implement a program by which selected vendors must invoice the fund
electronically and to accept electronic transfer of funds as
payment; and to permit the division to require the direct deposit
of claimants' checks by electronic transfer.
§23-4-1a - amended to allow the use of less costly certified mail rather than registered mail by which a claimant must notify
his or her employer of an injury.
§23-4-1c - amended to permit the division to conditionally
grant compensability to a claim and begin payments thereon where
the claim appears to be justified but further investigation is
necessary; this will permit the division to comply with the 15 day
ruling requirement and yet avoid the division having to deny
meritorious claims or to grant claims later determined to be false;
if the conditional approval is determined to be in error, then the
division can vacate it and cease payments.
§23-4-1d - amended to provide that only 12 months of back
payments on a permanent total disability award will be made until
all appeals are completed. Thereafter, the remainder of the back
pay would be made along with six percent simple interest. This
will aid in avoiding large overpayments if an award is later found
to have been in error.
§23-4-3 - amended to permit the requirement that generic
prescription drugs be used unless a generic is not available or the
treating physician requires the use of a name brand. Allows the
claimant to insist upon the name brand but the claimant must then
pay the difference in cost. Also amended to require claimants to
use only out of state health care providers who are willing to
accept payment under the division's fee schedule. Exceptions are
provided for emergencies and where a local health care provider of
the type necessary is not reasonably available; amended to delete
special provisions by which workers' compensation health care
practitioners cannot self refer; henceforth, general state and
federal law on this issue would be applicable rather than a
redundant workers' compensation requirement; amended to permit
employers and the division to enter into managed care agreements
and to provide that a claimant may freely choose his or her initial
health care provider, but if he or she later seeks to change
providers, then the provider must be a participant in the managed
care program; an employer managed care program must be the same as
one it uses for general health care insurance benefits for its
employees.
§23-4-3b - amended to require that any treatment guidelines
recommended by the health care advisory panel and implemented by
rule by the performance council are to be used as the standard of
care in the local community for all other purposes such as
malpractice cases.
§23-4-4 - amended to permit the division to set a fee schedule
for the payment of funeral expenses and to prohibit the vendor from charging more than that fee unless the deceased employee's
dependents are informed of the extra cost in writing and agrees in
writing to assume that additional cost. A criminal penalty is
provided for vendors who violate this section.
§23-4-6 - amended to reduce the disability rate from 70% of an
employee's average weekly wage to 66 and 2/3%; limits eligibility
to continue receiving permanent disability benefits only for so
long as the claimant is not eligible to receive social security
benefits; amended to provide that the scheduled injuries set forth
in subdivision (f) are to be compensated at the rate provided;
amended to require that permanent partial disability be determined
solely by the degree of whole body medical impairment that a
claimant has suffered; amended to provide for a medical panel to
resolve disputes in the degree of impairment and to provide for
limitations on the appellate review of the panel's decisions in
order to reduce litigation; amended to require a threshold of 60%
permanent partial disability based upon whole body medical
impairment before a claimant is eligible to be considered for a
permanent total disability award; and amended to provided for the
performance council to adopt a rule by which employers who
participate in the rehabilitation of a permanently disabled
employee may deduct that employee's wages from its quarterly wage
reports.
§23-4-6a - amended to provide decisions of the occupational
pneumoconiosis board the same level of appellate review as that
afforded the medical panel.
§23-4-6c - amended to conform disability payments to 66 and
2/3%.
§23-4-7 - amended to vacate the recent
Morris decision which
has hindered an employer's and the division's ability to
communicate with a claimant's treating physician regarding the
claimant's condition, diagnosis, treatment plans, and return to
work ability.
§23-4-7a - amended to provide that nonawarded disability
payments (NAP) are not to be made if the claimant has returned to
work.
§23-4-9 - amended to conform to change in disability payments
to 66 and 2/3% and to drop historical requirement for adoption of
rules which has now been completed.
§23-4-10 - amended to delete provision for payment of the 104
weeks award to dependents of a claimant who was receiving a permanent total disability award and who subsequently died from a
cause unrelated to his or her disability.
§23-4-15 - amended to reduce the period in which an
occupational injury claim and all death claims must be filed to six
months for injury claims and one year for death claims following
the date of injury or death; occupational disease and occupational
pneumoconiosis time periods were not changed.
§23-4-15b - amended to reflect the renumbering of article
five.
§23-4-16 - amended to limit the reopening of claims to one
five year period for all but progressive disease claims; two
attempts to reopen during that five year period are permitted; time
periods for ruling upon the different types of reopening requests
are provided; also, the number of active requests that a claimant
may have at one time is limited to one and any additional requests
are to be consolidated into the first.
§23-4-18 - amended to reflect the renumbering of article five.
§23-4-24 - amended to reflect the 60% threshold on filing
requests for permanent total disability claims and to clarify that
only the division can make the initial ruling upon such a claim.
§23-4-25 - amended to correct an ambiguity in determining the
amount of wages and benefits that must be offset if a claimant is
able to work after receiving a permanent total disability award.
§23-4C-1 - amended to reflect the provisions of the following
section regarding the continuance or abolition of the employers'
excess liability fund.
§23-4C-2 - amended to permit the performance council to decide
whether to retain the employers' excess liability fund or to
dispose of it by sale or termination. Provision is made for
continued payment of already incurred liabilities.
§23-5-1 - entire article has been amended to renumber the
sections; this section is amended to permit the division to
correct defective and clearly erroneous decisions without having to
require the parties to go through litigation to do so; a time limit
for doing so is provided of 180 days or until an appellate ruling
is made if that is sooner; the section is amended to clarify that
the division is the party to all hearings and appeals of workers'
compensation decisions; this clarifies the commissioner's role as
the executive officer for the entire workers' compensation system for policy making and overall operational purposes.
§23-5-2 - amended to reflect that the division is the party
and to reflect the renumbering of the article.
§23-5-3 - amended as in the preceding section.
§23-5-4 - amended as in the preceding section.
§23-5-5 - amended as in the preceding section.
§23-5-6 - amended as in the preceding section and to drop
duplicative term.
§23-5-7 - Rewrites the entire section on settlement of claims;
the parties may seek to settle any and all issues pending in a
claim and to resolve them finally without a right to reopen;
provisions are made for the division to review the fairness of a
settlement and to ensure that the parties fully understand the
implications of the settlement; limitations are placed on the
amount of a lump sum that may be paid as a result of a settlement
with the limit to be set by rule; provision is made for the
division to assume payments on a settlement if a self insured
employer defaults on its obligations.
§23-5-8 - amendments are made to place the office of judges
within the oversight of the performance council; the council will
set the salary of the chief administrative law judge and have the
authority to terminate the holder of that position; a right to
notice and hearing is afforded; the council's authority to review
and approve office of judges rules is clarified; the council can
require such reports from the office of judges as it deems
necessary.
§23-5-9 - conforming changes are made to this section
regarding the division's status as the proper party and with regard
to renumbering the article.
§23-5-10 - the section is amended to conform to the
renumbering of the article.
§23-5-11 - amendments are made to ensure that the appeals
board adheres to the overall policies of the workers' compensation
program; that the rules of the appeals board must first be approved
by the performance council before they are submitted to the supreme
court of appeals for final approval; the limitation on the appeals
board's staff at four employees is eliminated in expectation of the
large increase in work the board is facing as the backlog in the office of judges is reduced; and the board is required to supply
the performance council with such reports as the council requests.
§23-5-12 - amendments are made to conform the section to the
other changes in the article; in addition, the standard of review
by the appeals board of decisions made by the office of judges is
changed to the same standard as is used in the administrative
procedures act; the board cannot substitute its view of the facts
of a claim for that of the office of judges unless the facts as
found by the office of judges are clearly wrong when viewed from
the whole record.
§23-5-13 - conformity changes are made to this section.
§23-5-14 - conformity changes are made to this section.
§23-5-15 - conformity changes are made to this section.
§23-5-16 - this section is renumbered and obsolete language is
deleted.
With regard to the repealed sections:
§23-2-5b - this section is now obsolete as the time period for
the amnesty program for defaulted employers has passed.
§23-2-5 - this section duplicates the rule making authority
already vested in the commissioner and the performance council
elsewhere in the code.
§23-2A-2 - this is an obsolete study provision of the effects
of subrogation.
§23-4-23 - this section provides for an offset of social
security benefits against permanent total disability benefits that
is made obsolete by the new provision of limiting the time period
of receipt of such awards so as not to extend beyond social
security retirement age.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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