ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 250
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
__________
[Originating in the Committee on the Judiciary;
reported on February 6, 1995.]
__________
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 amend and reenact section eight,
article three, chapter twenty-two of said code; to amend and
reenact sections one, four, 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, five-a, nine, fourteen and fifteen, article
two of said chapter; to amend and reenact 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,
four, six, six-a, six-c, seven, seven-a, 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;
felony offense for failure to subscribe, make payment or file
reports and the criminal penalties therefor; venue for
offenses; felony offense for making false report or statement
and the criminal penalties therefor; subpoenas of division
employees; coverage for volunteers; premium taxes; failure to
subscribe and consequent noncoverage of partner, proprietor or
officer; definitions; primary contractor liability; notice of
subcontractor default; report 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; surplus fund; second
injury benefits determination; definitions; 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; 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; 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;
change in method of payments of certain dependents' benefits;
annuities; elections for reduced benefits; time for filing
claims applications and limitations thereon; 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 eight,
article three, chapter twenty-two of said code be amended and
reenacted; that sections one, four, eleven, thirteen and sixteen,
article one, chapter twenty-three of said code be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section eighteen; that sections one, one-
d; three, four, five, five-a, nine, fourteen and fifteen, article
two 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, four, six, six-a, six-c, seven, seven-a, 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
with regard to any required subscription to the workers'
compensation fund, the payment of premiums to the fund, the timely
filing of payroll reports and the maintenance of an adequate
premium deposit. If the applicant is delinquent or defaulted, or
has been terminated, then the permit shall not be issued until the
applicant returns to compliance or is restored by the workers'
compensation division under a reinstatement agreement:
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
maintain continued compliance with the provisions of section five,
article two, chapter twenty-three of this code and provide proof of
compliance to the director on an annual basis.
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, chapter twenty-one-a of this code.
(b) The commissioner is authorized to promulgate rules and
regulations to implement the provisions of this chapter.
(c) 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.
(d) 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.
(e) 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, or in any case in which a
petition for an extraordinary writ is filed in the supreme court of
appeals or in any circuit court, in which such representation shall
appear to the commissioner to be desirable, the commissioner may
designate a regular employee of this office, qualified to practice
before such court to represent the commissioner upon such appeal or
proceeding, and in no case shall the person so appearing for the
commissioner before the court receive remuneration therefor other
than such person's regular salary.
§23-1-4. Office hours; records; confidentiality; exceptions;
executive director.
(a) The offices of the 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 division
may elect. As the chief executive officer of the bureau of employment programs, the commissioner shall designate an executive
director to serve as the chief operating 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 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 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 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 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 tax 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 division's records and
the time periods thereof; and
(4) If a specific employer is delinquent or in default, what
the payments due the 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 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 division shall designate the person to represent it for the taking of any such deposition.
(b) The 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 parties or their attorneys, if any:
Provided, That the
division, upon due notice 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 they were taken at such
place or under such circumstances as imposed an undue burden or
hardship upon the other parties, and the 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 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 division or
before the duly authorized representative of the 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 division as being qualified to represent a
claimant or who is an individual otherwise found to be qualified by
the 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 division or
before the duly authorized representative of the 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 division as being qualified to represent
an employer or who is an individual otherwise found to be qualified
by the 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 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; venue.
(a) Any person, firm, partnership, company, corporation or
association who, as an employer, is required by the provisions of this chapter to subscribe to the workers' compensation fund, and
who knowingly and willfully fails to subscribe thereto, or who
knowingly and willfully fails to make any payment or file a report
as required by the provisions of this chapter within the time
periods specified by law, is 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
subsequent conviction under this subsection, any person so
convicted shall be imprisoned in the penitentiary for a definite
term of imprisonment which is not less than one year nor more than
three years or fined not less than five thousand dollars nor more
than twenty-five thousand dollars:
Provided, That in the case of
a person other than a natural person, the amount of the fine shall
be not less than ten thousand dollars nor more than twenty-five
thousand dollars. The venue for prosecution of any violation of
this subsection is either the county in which the defendant's
principal business operations are located, or in Kanawha county
where the fund is located. In charging a person with a second or
subsequent offense under the provisions of this subsection, the
warrant, indictment or information must set forth the date and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense unless the conviction
for the previous offense has become final, and unless a prior
offense occurred within the ten year period next preceding the
second or subsequent offense.
(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 nor more than ten thousand dollars or confined
in the penitentiary for a definite term of imprisonment which is
not less than one year nor 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.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business registration
certificates.
(a) The state of West Virginia and all governmental agencies
or departments created by it, including county boards of education,
political subdivisions of the state, any volunteer fire department
or company and other emergency service organizations as defined by
article five, chapter fifteen of this code, and all persons, firms,
associations and corporations regularly employing another person or
persons for the purpose of carrying on any form of industry,
service or business in this state, are employers within the meaning of this chapter and are hereby required to subscribe to and pay
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 workers' compensation division with reference to
rate, classification and premium payment:
Provided, That such
rates will be adjusted by the 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 or her employees does not exceed
three and the period of employment is temporary, intermittent and
sporadic in nature and does not exceed ten calendar days in any
calendar quarter; or
(5) Churches; or
(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged in
thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary unit organized under the auspices of a county commission,
municipality or other government entity or political subdivision;
volunteer organizations created or sponsored by government
entities, political subdivisions; or, area or regional emergency
medical services boards of directors in furtherance of the purposes
of the emergency medical services act of article four-c, chapter
sixteen of this code:
Provided, That should any of the employers
described in this subdivision have paid employees, then to the
extent of those paid employees the employer must subscribe to and
pay premium taxes into the workers' compensation fund based upon
the gross wages of the paid employees; but, with regard to the
volunteers, such coverage remains optional.
(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 or her full salary, such circuit or group
of churches may elect to be considered a single employer for the
purpose of premium payment into the workers' compensation fund.
(d) Employers who are not required to subscribe to the
workers' compensation fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in such case shall be subject to all requirements of
this chapter and all rules and regulations prescribed by the
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
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 division. At the time of making application
such employer shall deposit with the 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 the
employer's application be rejected by the division. Upon notice to
such employer of the acceptance of his or her application by the
division, he or she 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 division
in addition to other requirements of this chapter, furnish 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 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 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.
§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 regard to subcontractors with
whom the primary contractor has a contract for any work or services
for a period longer than thirty-days:
Provided, That this section
shall also be applicable to contracts for consecutive periods of
work that total more than thirty days. It is not applicable to the
primary contractor with regard to sub-subcontractors. However, a
subcontractor for the purposes of a contract with the primary
contractor can itself become a primary contractor with regard to
other employers with whom it subcontracts.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the commissioner,
prior to the initial performance of any work by the subcontractor's
employees, a certificate that the subcontractor is in good standing
with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor shall
result in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes,
premium deposits, interest and other penalties arising during the
life of the contract or due to work performed in furtherance of the
contract:
Provided, That the division shall be entitled to collect
only once for the amount of premiums, premium deposits and interest
due to the default, but the 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.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided for in this
section, such default or failure shall be good and sufficient cause
for a primary contractor to hold the subcontractor responsible and
to seek reimbursement or indemnification for any amounts paid on
behalf of the subcontractor to avoid or cure a workers' compensation default, plus related costs including reasonable
attorneys' fees, and to terminate its subcontract with the
subcontractor notwithstanding any provision to the contrary in the
contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after the first day
of January, one thousand nine hundred ninety-four.
(e) The division may take any action authorized by section
five-a of this article in furtherance of its efforts to collect
amounts due from the primary contractor under this section.
§23-2-3. Report forms and other forms for use of employers.
The division shall prepare and furnish report forms for the
use of employers subject to this chapter. Every employer receiving
from the division any form or forms with direction for completion
and returning to the division shall return the same, within the
period fixed by the 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 division on the forms prescribed by the
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 division on forms to be furnished
by the 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 employers subject to this chapter, a system for
determining rates of premium taxes applicable to employers subject
to this chapter, a system of multiple policy options with criteria
for subscription 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 premium taxes
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;
(4) The rule shall be consistent with classification and rate
making methodologies found in the insurance industry; and
(5) The rule shall be consistent with the principles of
promoting more effective workplace health and safety programs as
contained in article two-b, of this chapter.
(b) Notwithstanding any other provision of this chapter to the
contrary, the compensation programs performance council may elect
to premise its premium tax determination methodology on the
aggregate number of hours worked by employees of the employer
rather than upon the gross wages of the employer. Such an election
may apply to all industrial classifications or to less than all.
If this election is made, then in all instances in which this
chapter refers to gross wage reports for the purpose of premium tax
determination such references shall be taken to mean a report of
the number of hours so worked.
(c) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of July, one
thousand nine hundred ninety-six. Until the rule is finally
promulgated the prior provisions of this section as found in
chapter one hundred seventy-one of the acts of the Legislature, one
thousand nine hundred ninety-three, shall remain in effect.
(d) 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 premium taxes calculated
as a percentage of the employer's gross wages payroll at the rate
determined by the workers' compensation division and then in
effect. At the time each employer subscribes to the fund, the
application required by the 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 twenty-five dollars.
(1) Thereafter, 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 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 ninety-six, by the compensation
programs performance council to report gross wages and pay premium taxes at other intervals.
(2) At the time each premium is paid, every subscribing
employer shall make a gross wages payroll report to the division
for the preceding quarter. The report shall be on the form or
forms prescribed by the division, and shall contain all information
required by the 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 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 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 premium taxes and premium deposits required by this
article to be paid shall be paid by the employers to the division,
which shall maintain a record of all sums so received. Any such
sum mailed to the 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 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 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 division determines that such delinquency has been
caused by delays in the administration of the fund. The 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 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 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 on the
delinquent premium payment and premium deposit pursuant to section
thirteen of this article.
(c) Whenever the division notifies an employer of the
delinquent status of its account, the notification shall explain
the legal consequence of subsequent default by an employer required
to subscribe to the fund and the legal consequences of termination
of an electing employer's account.
(d) Failure by the employer, who is required to subscribe to
the fund and who fails to resolve the delinquency within the
prescribed period, shall place the account in default and shall
deprive such default employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer shall be liable as provided in section eight of
this article. The default employer's liability under said sections
shall be retroactive to midnight of the last day of the month
following the end of the quarter for which the delinquency occurs.
The division shall notify the default employer of the method by
which the employer may be reinstated with the fund. The 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 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 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 such employer shall be liable as provided in section eight of
this article. The default employer's liability under said section
shall be retroactive to 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
division and payment into the fund of all unpaid premiums, an
adequate premium deposit, 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 premium taxes to the division at a penalty
rate. The applicable penalty premium 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 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 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 tax rate for future years.
(2) The division shall have the authority to restore a
defaulted or terminated employer through a reinstatement agreement.
Such reinstatement agreement shall require the payment in full of
all premium taxes, premium deposits, the penalty for late reporting
and payment, past accrued interest and future interest calculated
pursuant to the provisions of section thirteen of this article.
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
division is authorized to file a lien against the employer as
provided by section five-a of this article. In addition, entry
into a reinstatement agreement is discretionary with the division.
Such discretion shall be exercised in keeping with the fiduciary
obligations owed to the workers' compensation fund. Should the
division decline to enter into a reinstatement agreement and should
the employer not comply with the provisions of subdivision (1) of
this subsection, then the 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
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 gross wages
information shall be certified by the employer or its authorized agent; and (C) include a payment of a portion of the liability
equal to one half of one percent of the gross payroll during the
period of delinquency and default or equal to another portion of
the liability 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. An employer who applies for
reinstatement shall be entitled to the benefits and protection of
this chapter on the day a properly completed and acceptable
application which is accompanied by the application payment is
received by the division:
Provided, That if the division reinstates
an employer subject to the terms of a reinstatement agreement, the
subsequent failure of the employer to make scheduled payments or to
pay accrued or future interest in accordance with the reinstatement
agreement or to timely file current 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
reinstatement agreement does not require earlier restoration of the
premium deposit, to restore the premium deposit to the required
amount by the end of the repayment period shall cause the
reinstatement application and the reinstatement agreement to be
null, void and of no effect, and the employer 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 its account in good
standing with regard to subsequent premium taxes and premium deposits after filing an application for reinstatement and prior to
the final resolution of an application for reinstatement by
entering into a reinstatement agreement or by payment of the
liability in full as provided for in subdivision (1) of this
subsection shall cause the reinstatement application to be null,
void and of no effect, and the employer shall be denied the
benefits and protection of this chapter effective from the date
that such employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the
provisions of a repayment agreement, the division 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) 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, the employer shall be refunded the balance due the
employer of its deposit, after deducting all amounts owed by the
employer to the workers' compensation fund and other agencies of
this state, and the division shall notify the employees of such
employer of said termination in such manner as the division 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 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 division and shall be posted in a
conspicuous place at the chief works of the employer, as the same
appear in records of the 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
. 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 one
thousand dollars, and said notice shall state this provision upon
its face. The 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 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 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 division out
of any funds at its disposal, but shall be charged by the division
against the account of the employer to whose delinquency such
notice relates.
§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil remedies; creation and
enforcement of lien against employer and purchaser; duty of
secretary of state to register liens; distraint powers;
insolvency proceedings; secretary of state to withhold
certificates of dissolution; injunctive relief; bond; attorney
fees and costs.
(a) The workers' compensation division in the name of the
state may commence a civil action against an employer who, after
due notice, defaults in any payment required by this chapter. If
judgment is against the employer, such employer shall pay the costs
of the action. Civil action under this section shall be given
preference on the calendar of the court over all other civil
actions. Upon prevailing in any such civil action, the division
shall be entitled to recover its attorneys' fees and costs of
action from the employer.
(b) In addition to the foregoing provisions of this section,
any payment, interest and penalty thereon due and unpaid under this
chapter shall be a personal obligation of the employer immediately
due and owing to the division and shall, in addition thereto, be a
lien enforceable against all the property of the employer:
Provided, That no such lien shall be enforceable as against a
purchaser (including a lien creditor) of real estate or personal
property for a valuable consideration without notice, unless
docketed as provided in section one, article ten-c, chapter
thirty-eight of this code:
Provided, however, That such lien may
be enforced as other judgment liens are enforced through the provisions of chapter thirty-eight of this code and the same shall
be deemed by the circuit court to be a judgment lien for this
purpose.
(c) In addition to all other civil remedies prescribed herein,
the division may in the name of the state, after giving appropriate
notice as required by due process, distrain upon any personal
property, including intangible property, of any employer delinquent
for any payment, interest and penalty thereon. If the division has
good reason to believe that such property or a substantial portion
thereof is about to be removed from the county in which it is
situated, upon giving appropriate notice, either before or after
the seizure, as is proper in the circumstances, the division may
likewise distrain in the name of the state before such delinquency
occurs. For such purpose, the division may require the services of
a sheriff of any county in the state in levying such distress in
the county in which the sheriff is an officer and in which such
personal property is situated. A sheriff so collecting any
payment, interest and penalty thereon shall be entitled to such
compensation as is provided by law for his or her services in the
levy and enforcement of executions. Upon prevailing in any
distraint action, the division shall be entitled to recover its
attorneys' fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter shall be operated in
connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction such business is operated shall, by the entry of a proper order or
decree in the cause, make provisions, so far as the assets in
administration will permit, for the regular payment of such
payments, interest and penalties as the same become due.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by the division that all
payments, interest and penalties thereon against any such
corporation which is an employer under this chapter have been paid
or that provision satisfactory to the division has been made for
payment.
(f) In any case when an employer required to subscribe to the
fund defaults in payments of premium, premium deposits, penalty or
interest thereon, for as many as two calendar quarters, which
quarters need not be consecutive, and remains in default after due
notice, the division may bring action in the circuit court of
Kanawha county to enjoin such employer from continuing to carry on
the business in which such liability was incurred:
Provided, That
the division may as an alternative to this action require such
delinquent employer to file a bond in the form prescribed by the
commissioner with satisfactory surety in an amount not less than
fifty percent more than the payments, interest and penalties due.
§23-2-9. 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 any provisions of this chapter to the
contrary, 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; 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, article three, 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 may, in the
division's discretion, cause the employer's self-insurance status
to be terminated. The security or bond provided by employers prior
to the second day of February, one thousand nine hundred ninety-
five shall continue in full force and effect until the performance
of the employer's annual review and the entry of any appropriate
decision on the amount or form of the employer's security or bond.
(5) Whenever a self-insured employer 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 required payments to the employer's injured employees
or dependents of fatally injured employees as benefits provided for
by this chapter including second injury benefits and catastrophic
injury benefits, if applicable, shall constitute the remaining
portion of the self-insurer's premium tax.
(1) If an employer defaults in the payment of any portion of
its self-insured premium taxes, the division may, in an appropriate
case, determine the full accrued value based upon generally
accepted accounting principles of the employer's liability
including the costs of all awarded claims and of all incurred but
not reported claims. The amount so determined may then, in an
appropriate case, be assessed against the employer and the division
may demand and collect the present value of such defaulted tax
liability. Interest shall accrue upon the demanded amount as
provided for in section thirteen of this article until the premium
tax is fully paid. Payment of all amounts then due to the division
and to the employer's employees is a sufficient basis for
reinstating the employer to good standing with the fund.
(2) 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), section one, 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 said 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
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), section one, article three of
this chapter. Such an 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 second
day of February, one thousand nine hundred ninety-five, permitted
to self-insure its second injury risk as defined in subsection (d),
section one, 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 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 payment of obligations of self-insured employers. If such pool
is created, the compensation programs performance council shall
adopt rules for the organizational plan, participation,
contributions and other payments which may be required of self-
insured employers under this section. The council, in order to
create and fund such a risk pool, may adopt a rule authorizing the
division to assess each self-insured employer in proportion
according to each employer's portion of the unsecured obligation
and liability or to assess according to some other method provided for by rule which shall properly create and fund such risk pool to
serve the needs of employees, employers and the workers'
compensation fund by providing adequate security. The council, in
funding such security risk pool, may authorize the division to 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-insured 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
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.
§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 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:
(1) Such employer's premium taxes, premium deposits, interest
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 this 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 of the sold or
transferred assets, which lien shall constitute a personal
obligation of the employer.
(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) Unless all amounts owed by the predecessor employer are
paid prior to or at the sale or other transfer, 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 (1), 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.
(d) If an employer subject to subsection (a), (b) or (c) of
this section pays to the 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 division shall issue a certificate to the
employer stating that the employer's account is in good standing
with the division and that the assets may be sold or otherwise
transferred without the attachment of the 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 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
division and that the assets may be sold or otherwise transferred
without the attachment of the 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) At any time prior to or following the acquisition
described in subsection (a), (b) or (c), section fourteen of this
article, the buyer or other recipient may file a certified petition
with the division requesting that the 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 other penalty, or any
combination thereof. The division shall review the petition by
considering the seven factors set forth below:
(1) The exact nature of the default;
(2) The amount owed to the 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;
(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 division, no hearing
need be held on the petition. However, any decision made by the
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 division's filing with
the secretary of state, for publication in the state register, of
a notice of the decision. At the time of filing the notice of its
decision, the division shall also file with the secretary of state
a true copy of the decision. The publication shall include 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 division setting forth the objection and the
basis therefor. If any such objection is filed, the 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.
(b) In the factual situations set forth in subsection (a), (b)
or (c), section fourteen of this article, if the predecessor's
modified rate of premium tax, as calculated in accordance with
section four of this article, is greater than the manual rate of
premium tax, 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. As provided for by
subdivision (4), subsection (b), section fourteen of this article,
the new employer may avoid this assumption of the predecessor's
rate of premium tax if all liabilities of the predecessor are paid prior to or at the time of the sale or other transfer.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§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.
(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 pursuant to the
rules adopted to implement section four, article two of this
chapter and shall be in an amount sufficient to maintain a solvent
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, article two of this
chapter.
(2) If an employee of an employer, where the employer has
elected to carry his or her 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 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 division, and shall make all reports and execute all blanks,
forms and papers as directed by the division, and as provided in
this chapter.
§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, 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
employers, vendors and all others lawfully entitled to receive such
disbursements:
Provided, That claimants may not be required to
accept such transfers but may elect to do so.
(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), section seven, article three, chapter twenty-one-a of this
code.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§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 the employer's agents a
written notice of the occurrence of such injury, with like notice
or a copy thereof to the 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 the employer's agents, or may be sent by certified mail
addressed to the employer at the employer's last known residence or
place of business. Such notice may be given to the 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 workers'
compensation division shall determine whether the claimant has
sustained a compensable injury within the meaning of section one of
this article and 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 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, then such finding shall be given probative weight in the
overall determination of the compensability of the claim or of the
merits of the reopening request.
(3) Any party shall have the right to object to the order of
the 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 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
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 division shall give to the parties immediate
notice of any order granting temporary total disability or medical
benefits.
(c) The 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 division enter an
order granting prospective temporary total disability benefits for
a period of more than ninety days:
Provided, That when the
division determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total
disability benefits, the 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
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
division with this information within fifteen days from the date
the 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 division obtains from reports made pursuant to
section eleven, article ten, chapter twenty-one-a of this code. If
no such wages have been reported, then the division shall make such
payments at the rate the division finds would be justified by the
usual rate of pay for the occupation of the injured employee. The
division shall adjust the rate of benefits both retroactively and
prospectively upon receipt of proper wage information. The
division shall have access to all wage information in the
possession of any state agency.
(e) Subject to the limitations set forth in section sixteen of
this article, upon a finding of the division that a claimant who
has sustained a previous compensable injury which has been closed
by any order of the 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 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 division shall give immediate notice to
the parties of its 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 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 its own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the 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
its employee is entitled to benefits, the employer may start payments before receiving a pay order from the division.
(h) In the event that an employer files a timely objection to
any order of the division with respect to compensability, or any
order denying an application for modification with respect to
temporary total disability benefits, or with respect to those
expenses outlined in subsection (a), section three of this article,
the division shall continue to pay to the claimant such benefits
and expenses during the period of such disability. Where it is
subsequently found by the division that the claimant was not
entitled to receive such temporary total disability benefits or
expenses, or any part thereof, so paid, the division shall, when
the employer is a subscriber to the fund, credit said employer's
account with the amount of the overpayment; and, when the employer
has elected to carry its own risk, the 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 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 division may only recover the amount of such
benefits or expenses by withholding, in whole or in part, as
determined by the 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 division finds that based upon the
employer's report of injury, the claim is not compensable, the
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 division makes an award for permanent partial or
permanent total disability, the 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:
Provided, That the division may withhold payment of the
portion of the award that is the subject of the following
subsection until seventy-seven days have expired without an
objection being filed.
(b) On and after the first day of July, one thousand nine
hundred ninety-five, whenever the division, the office of judges,
or the workers' compensation appeal 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.
(d) If a timely protest to the award is filed, as provided in
section one or nine, article five of this chapter, the 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 that the claimant was not entitled to receive
the benefits, or any part thereof, so paid, in which event the
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 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 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 division may only recover such amount by
withholding, in whole or in part, as determined by the 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 workers' compensation division shall establish and
alter from time to time as the division may determine to be
appropriate a schedule of the maximum reasonable amounts to be paid to health care providers, providers of rehabilitation services,
providers of durable medical and other goods and providers of other
supplies and medically related items or other persons, firms or
corporations for the rendering of treatment or services to injured
employees under this chapter. The division also, on the first day
of each regular session and also from time to time, as 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 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 health care services, rehabilitation
services, durable medical and other goods and other supplies and
medically related items as may be reasonably required. The
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
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 division specific
justification for the need for such additional services in the
particular case and the division shall have the justification
reviewed by a health care professional before authorizing any such
additional services. The division is authorized to enter into
preferred provider and managed care agreements.
(2) Payment for health care services, rehabilitation services,
durable medical and other goods and other supplies and medically
related items authorized under this subsection may be made to the
injured employee or to the person, firm or corporation who or which
has rendered such treatment or furnished health care services,
rehabilitation services, durable medical or other goods or other
supplies and items, or who has advanced payment for same, as the
division may deem proper, but no such payments or disbursements
shall be made or awarded by the division unless duly verified
statements on forms prescribed by the division shall be filed with
the division within two years after the rendering of such treatment
or the delivery of such goods, supplies or items:
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 health care services,
rehabilitation services, or the provision of durable medical or
other goods or other supplies or medically related items, the
person, firm or corporation rendering 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 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 exists. 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 "brand medically necessary". 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 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 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
has established and maintains a managed health care program
consisting of a preferred provider organization or program, a
health maintenance organization, then the claimant shall select a
new health care provider through such managed care program.
Moreover, if the division enters into an agreement which has been
approved by the compensation programs performance council with a
preferred provider organization or program, a health maintenance
organization or other health care delivery organization or
organizations, then if a claimant seeks to change his or her
initial choice of health care provider and if the claimant's
employer does not provide access to such an organization then the
claimant shall be provided with a new health care provider from the
division's preferred provider organization or program, health
maintenance organization or other health care delivery organization
or organizations available to him or her.
(c) When an injury has been reported to the division by the
employer without protest, the 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 division as aforesaid, bills for health care
services without requiring the injured employee to file an
application for benefits.
(d) The 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.
(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.
(f) The 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 division.
(g) Notwithstanding the foregoing, the 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.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal
penalties.
(a) In case the personal injury causes death, reasonable
funeral expense, 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 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 knowingly and willfully 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 is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined three thousand dollars or
confined in jail for a definite term of confinement of twelve
months, or both.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of
this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The 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 a maximum
weekly benefit to be computed on the basis of seventy percent of
the average weekly wage earnings, wherever earned, of the injured
employee, at the date of injury, not to exceed one hundred percent
of the average weekly wage in West Virginia:
Provided, That in the case of a claimant whose injury occurred prior to the second day of
February, one thousand nine hundred ninety-five, the maximum
benefit rate shall be the rate applied under the prior enactment of
this subsection which was in effect at the time the injury
occurred, and the rate shall not be affected by the amendment and
reenactment of this section during the regular session of the
Legislature in the year one thousand nine hundred ninety-five.
The minimum weekly benefits paid hereunder shall not be less
than thirty-three and one-third percent of the average weekly wage
in West Virginia, except as provided in section six-d and section
nine 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) For all awards of permanent total disability benefits that
are made on or after the second day of February, one thousand nine
hundred ninety-five, including those claims in which a request for an award was pending before the division or which were in
litigation but not yet submitted for a decision, then benefits
shall be payable until the claimant attains the age necessary to
receive federal old age retirement benefits under the provisions of
the Social Security Act, 42 U.S.C. 401 and 402, in effect on the
effective date of this section. Such a claimant shall be paid
benefits so as not to exceed a maximum benefit of sixty-six and
two-thirds percent of the claimant's average weekly wage earnings,
wherever earned, at the time of the date of injury not to exceed
one hundred percent of the average weekly wage in West Virginia.
The minimum weekly benefits paid hereunder shall be as is provided
for in subdivision (b) of this section. In all claims in which an
award for permanent total disability benefits was made prior to the
second day of February, one thousand nine hundred ninety-five, such
awards shall continue to be paid at the rate in effect prior to the
such date, subject to annual adjustments for changes in the average
weekly wage in West Virginia:
Provided, That the provisions of
sections one through eight, article four-a of this chapter shall be
applied thereafter to all such prior awards that were previously
subject to its provisions. A single or aggregate 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 paragraph (2), subdivision (n) of
this section:
Provided, however, That the claimant must also be at
least fifty percent medically impaired upon a whole body basis.
The presumption may be rebutted if the evidence establishes that the claimant is not permanently and totally disabled pursuant to
subdivision (n) of this section. Under no circumstances shall the
division grant an additional permanent disability award to a
claimant receiving a permanent total disability award:
Provided
further, That if any claimant thereafter sustains another
compensable injury and has permanent partial disability resulting
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.
(e) (1) For all awards made on or after the second day of
February, one thousand nine hundred ninety-five, if the injury
causes permanent disability less than permanent total disability,
the percentage of disability to total disability shall be
determined and the award computed on the basis of four weeks'
compensation for each percent of disability determined, at the
maximum or minimum benefit rates provided for in subdivision (d) of
this section:
Provided, That in the case of a claimant whose
injury occurred prior to the second day of February, one thousand
nine hundred ninety-five, the maximum benefit rate shall be the
rate applied under the prior enactment of this section which was in
effect at the time the injury occurred, and the rate shall not be
affected by the amendment and reenactment of this section during
the regular session of the Legislature in the year one thousand
nine hundred ninety-five.
(2) If a claimant is released by his or her treating physician
to return to work at the job he or she held before the occupational
injury occurred and if the claimant's preinjury employer does not
offer the preinjury job or a comparable job to the employee when
such a position is available to be offered, then the award for the
percentage of partial disability shall be computed on the basis of
six weeks of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be
as provided in subdivision (b) of this section for temporary total
disability.
(f) If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage of
disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a two
percent disability.
The loss of all toes shall be considered a twenty-five percent
disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index 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 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 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 division makes the proper award for such injury, the
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 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) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section and
in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said section.
The occupational pneumoconiosis board created pursuant to section
eight-a of this article shall premise its decisions on the degree
of pulmonary function impairment that claimants suffer solely upon
whole body medical impairment. The workers' compensation 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 or after second day of
February, one thousand nine hundred ninety-five, to all
applications for an award of permanent partial disability made on
and after such date, and to all applications for an award of
permanent partial disability that were pending before the division
or pending in litigation but not yet submitted for decision on and
after such date. The prior provisions of this subdivision shall
remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the
commissioner by the health care advisory panel, the commissioner
shall appoint an interdisciplinary examining board consisting of
five members to evaluate claimants, including by examination if the
board so elects. The board shall be composed of three qualified
physicians with specialties and expertise qualifying them to
evaluate medical impairment and two vocational rehabilitation
specialists who are qualified to evaluate the ability of a claimant
to perform gainful employment with or without retraining. One
member of the board shall be designated annually as chairperson by
the commissioner. The term of office of each member of the board
shall be six years and until his or her successor has been
appointed and has qualified:
Provided, That two of the persons
initially appointed shall serve a term of six years, two of the
remaining persons shall serve a term of four years; and the
remaining member shall serve a term of two years. Any member of
the board may be appointed to any number of terms. Any two
physician members and one vocational rehabilitation specialist member shall constitute a quorum for the transaction of business.
The commissioner, from time to time, shall fix the per diem salary,
computed on the basis of actual time devoted to the discharge of
their duties, to be paid to each member of the board, and the
members shall also be entitled to reasonable and necessary
traveling and other expenses incurred while actually engaged in the
performance of their duties.
(1) Prior to the referral of any issue to the
interdisciplinary examining board, the division shall conduct such
examinations of the claimant as it finds necessary and obtain all
pertinent records concerning the claimant's medical history and
reports of examinations and forward them to the board at the time
of the referral. The division shall provide adequate notice to the
employer of the filing of the request for a permanent total
disability award and the employer shall be granted an appropriate
period in which to respond to the request. The claimant and the
employer may furnish all pertinent information to the board and
shall furnish to the board any information requested by the board.
The claimant and the employer may each submit no more than one
report and opinion regarding each issue present in a given claim.
The employer shall be entitled to have the claimant examined by
medical specialists and vocational rehabilitation specialists:
Provided, That the employer is entitled to only one such
examination on each issue present in a given claim. Any additional
examinations must be approved by the division and shall be granted
only upon a showing of good cause. The reports from all employer-conducted examinations must be filed with the board and served upon
the claimant. The board may request that those persons who have
furnished reports and opinions regarding a claimant provide it with
such additional information as the board may deem necessary. Both
the claimant and the employer, as well as the division, may submit
reports from experts challenging or supporting the other reports in
the record regardless of whether or not such an expert examined the
claimant or relied solely upon the evidence of record.
(2) If the board or a quorum thereof elects to examine a
claimant, the individual members shall conduct such examinations as
are pertinent to each of their specialties. If a claim presents an
issue beyond the expertise of the board, the board may obtain
advice or evaluations by other specialists. In addition, if the
compensation programs performance council determines that the
number of applications pending before the board has exceeded the
level at which the board can review and make recommendations within
a reasonable time, then the council may authorize the commissioner
to appoint such additional members to the board as may be necessary
to reduce the backlog of applications. Such additional members
shall be recommended by the health care advisory panel and the
commissioner may make such appointments as he or she chooses from
the recommendations. The additional board members shall not serve
a set term but shall serve until the council determines that the
number of pending applications has been reduced to an acceptable
level.
(3) Referrals to the board shall be limited to matters related to the determination of permanent total disability under the
provisions of subdivision (n) of this section and to questions
related to medical cost containment decisions, utilization review
decisions and managed care decisions arising under section three of
this article.
(4) In the event the board members elect to examine a
claimant, the board shall prepare a report stating the tests,
examinations, procedures and other observations that were made, the
manner in which each was conducted, and the results of each. The
report shall state the findings made by the board and the reasons
therefor. Copies of the reports of all such examinations shall be
served upon the parties and the division and each shall be given an
opportunity to respond in writing to the findings and conclusions
stated in the reports.
(5) The board shall state its initial recommendations to the
division in writing with an explanation for each such
recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the division
and each shall be afforded a thirty-day opportunity to respond in
writing to the board regarding the board's recommendations. The
board shall then review any such responses and issue its final
recommendations. The final recommendations shall then be
effectuated by the entry of an appropriate order by the division.
(6) Except as noted below, objections pursuant to section one,
article five of this chapter to any such order shall be limited in
scope to matters within the record developed before the workers' compensation division and the board and shall further be limited to
the issue of whether the board properly applied the standards for
determining medical impairment, if applicable, and the issue of
whether the board's findings are clearly wrong in view of the
reliable, probative and substantial evidence on the whole record.
Should either party contend that the claimant's condition has
changed significantly since the review conducted by the board, the
party may file a motion with the administrative law judge, together
with a report supporting that assertion. Upon the filing of such
motion, the administrative law judge shall cause a copy of the
report to be sent to the examining board asking, the board to
review the report and provide such comments as the board chooses
within sixty days of the board's receipt of the report. The board
may then either supply such comments or, at the board's discretion,
request that the claim be remanded to the board for further review
by the board. If remanded, the claimant is not required to submit
to further examination by the employer's medical specialists or
vocational rehabilitation specialists. Following any such remand,
the board shall file its recommendations with the administrative
law judge for his or her review. If the board elects to respond
with comments, such comments shall be filed with the administrative
law judge for his or her review. Following the receipt of either
the board's recommendations or comment, the administrative law
judge shall then issue a written decision ruling upon the asserted
change in the claimant's condition. No additional evidence may be
introduced during the review of the objection before the office of judges or elsewhere on appeal:
Provided, That each party and the
division may submit one written opinion on each issue pertinent to
a given claim based upon a review of the evidence of record either
challenging or defending the board's findings and conclusions.
Thereafter, based upon the evidence then of record, the
administrative law judge shall issue a written decision containing
his or her findings of fact and conclusions of law regarding each
issue involved in the objection.
(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.
(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 second day of February, one
thousand nine hundred ninety-five, and for all requests for such an
award pending before the division on and after the second day of
February, one thousand nine hundred ninety five, a claimant must
have been awarded the sum of fifty 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 fifty percent. Upon filing such
an application, the claim will be reevaluated by the examining
board pursuant to subdivision (j) of this section to determine if
he or she has suffered a whole body medical impairment of fifty
percent or more resulting from either a single occupational injury
or occupational disease or a combination of occupational injuries
and occupational diseases. A claimant whose prior permanent
partial disability awards total eighty-five percent or more shall
also be examined by the board and must be found to have suffered a
whole body medical impairment of fifty percent in order for his or
her request to be eligible for further review. The examining board
shall review the claim as provided for in subdivision (j) of this
section. If the claimant has not suffered whole body medical impairment of at least fifty percent, then the request shall be
denied. Upon a finding that the claimant does have a fifty percent
whole body medical impairment, then the review of the application
shall continue as provided for in the following paragraph of this
subdivision. Those claimants whose prior permanent partial
disability awards total eighty-five percent or more and who have
been found to have a whole body medical impairment of at least
fifty percent shall then be entitled to the rebuttable presumption
created pursuant to subdivision (d) for the remaining issues in the
request. For the purposes of determining whether the claimant
should be awarded a permanent total disability benefits under the
second injury provisions of subsection (d), section one, 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) In the event that a claimant, who has been found to have
at least a fifty percent whole body medical impairment, is denied an award of permanent total disability benefits pursuant to this
subdivision and then accepts and continues to work at a lesser
paying job than he or she previously held, then such a claimant
shall be eligible, notwithstanding the provisions of section nine
of this article, to receive temporary partial rehabilitation
benefits for a period of four years. Such benefits shall be paid
at the level necessary to ensure the claimant's receipt of the
following percentages of the average weekly wage earnings of the
claimant at the time of injury calculated as provided in this
section and sections six-d and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year:
Provided, That in no event shall such benefits exceed one hundred
percent of the average weekly wage in West Virginia. In no event
shall such benefits be subject to the minimum benefit amounts
required by the provisions of subdivision (b) of this section.
§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 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, article five of this chapter.
If such a decision is objected to, the office of judges shall
affirm the decision of occupational pneumoconiosis board made
following hearing unless the decision is clearly wrong in view of
the reliable, probative and substantial evidence on the whole
record. Compensation 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), section six of this article:
Provided, That if it shall
be determined by the 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
two, three, four and five, 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 six of this
article shall not apply to employees who work at nonprofit
"workshops" as defined in section one, article one, 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 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 or her return to work at the
earliest possible time; that the prompt dissemination of medical
information to the 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 division and their employers;
that the 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 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, a claimant irrevocably
agrees by the filing of his or her application for benefits that
any physician may release to and orally discuss with the claimant's
employer, or its representative, or with a representative of the
division from time to time the claimant's medical history and any
medical reports pertaining to the occupational injury or disease
and to any prior injury or disease of the portion of the claimant's
body to which a medical impairment is alleged containing detailed information as to the claimant's condition, treatment, prognosis
and anticipated period of disability and dates as to when the
claimant will reach or has reached his maximum degree of
improvement or will be or was released to return to work. For the
exclusive purposes of this chapter, the patient-physician privilege
of confidentiality is waived with regard to the physician's
providing this medical information to the division, the employer,
or to the employer's representative. Whenever a copy of any such
medical report is obtained by the employer or its representative
and the physician has not also forwarded a copy of the same to the
division, the employer shall forward a copy of such medical report
to the 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 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 division, in
consultation with the health care advisory panel, shall establish
guidelines as to the anticipated period of disability for the
various types of injuries. Each injury claim in which temporary
total disability continues beyond the anticipated period of
disability so established for the injury involved shall be reviewed
by the division. If satisfied, after reviewing the medical
evidence, that the claimant would not benefit by an independent
medical evaluation, the 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 division
concludes that the claimant might benefit by an independent medical
evaluation, 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
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 division of such report and the division shall
refer the claimant to a physician or physicians of the 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 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 division shall refer the claimant to a physician or physicians of the 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
division.
(e) Notwithstanding any provision in subsection (c) of this
section, the 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 division
conclude that the claimant has reached his or her maximum degree of
improvement; or
(2) When the authorized treating physician shall advise the
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 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 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 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 division under other provisions
of this chapter), the division shall refer the claimant to a
physician or physicians of the 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 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
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.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an employee in the course of and resulting from his or her employment,
causes death, and disability is continuous from 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 or
she lived. The order of preference of payment and length of
dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage of
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
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) (1) If a person receiving permanent total disability
benefits which were awarded prior to the second day of February,
one thousand nine hundred ninety-five dies from a cause other than
a disabling injury leaving any dependents as defined in subdivision
(d) of this section, an award shall be made to such dependents in
an amount equal to one hundred four times the weekly benefit the
worker was receiving at the time of his or her death. The award
shall be paid to the dependents in the same interval at which the
decedent had been receiving benefits prior to his or her death.
(2) On and after the second day of February, one thousand nine
hundred ninety-five, when an award of permanent total disability
benefits is made, a claimant shall make a one-time election of
whether to receive the full amount of payments for the award or to
receive a reduced payment in order to provide an annuity payment to
his or her dependents. The sum of twenty thousand dollars shall be
the initial amount of the annuity. Thereafter, the compensation
programs performance council shall review the annuity amount at
least every three years. The council shall also from time to time
determine the amount of the reduction in benefits that will be used
to contribute towards the full amount necessary to purchase the
annuity. The council may, from time to time as it deems
appropriate, fix an amount which the fund will contribute toward
the purchase of annuities. The commissioner and the council are
authorized to either fund such annuities through the investments of
the workers' compensation fund or through the use of a private provider of annuities. The selection of such a private provider of
annuities shall be through competitive bids. If at the time of the
claimant's death he or she has no dependents, then the proceeds of
the annuity shall remain with the fund. Should such a claimant's
entitlement to receive the permanent total disability award
terminate due to his or her attaining the necessary retirement age
provided for by subdivision (d), section six of this article or for
any other reason other than the death of the claimant, then the
annuity shall be cancelled and the proceeds thereof shall remain
with the fund.
§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 division and filed with the division within six months from
and after the injury or death, as the case may be, and unless so
filed within such 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 division within 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 or her
attorney or by a member of his or her family.
(b) To entitle any employee to compensation for occupational pneumoconiosis under the provisions hereof, the application
therefor must be made on the form or forms prescribed by the
division and filed 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 or
her by a physician or which he or she 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 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 division and filed 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 or her by a physician or which he or she 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 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 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 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 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
division shall also determine such other nonmedical facts as may in
the division's opinion be pertinent to a decision on the validity
of the claim.
The division shall enter an order with respect to such
nonmedical findings within ninety days following receipt by the
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 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 chief administrative law judge shall set a hearing
as provided in section nine, article five of this chapter. In the
event of an objection to 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 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 sections ten and twelve, article five of this chapter. If the
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 division over each case
shall be continuing and the division may, 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. Upon and after the second day of
February, one thousand nine hundred ninety-five, the period in
which a claimant may request a modification, change or reopening of
a prior award that was entered either prior to or after such date
shall be determined by the following paragraphs of this subsection.
Any such request that is made beyond such period shall be refused.
(1) Except as provided in section twenty-two of this article,
in any claim which was closed without the entry of an order
regarding the degree, if any, of permanent disability that a
claimant has suffered, any such request must be made within five
years of the closure; or in any case in which no award has been
made within five years of the date of injury. 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) No further award may be made in fatal cases except within
two years after the death of the employee.
(4) With the exception of the items set forth in subsection
(d), section three of this article, in any claim 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, 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 , 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.
(c) If such application is based on a report of any medical
examination made of the claimant and submitted by the claimant to
the 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 division to
the claimant, in addition to all other benefits awarded, upon due
proof of the amount thereof being furnished the division by the
claimant, but shall in no case exceed the sum fixed pursuant to the
division's schedule of maximum reasonable fees established under
the provisions of section three of this article.
(d) The division shall have continuing power and jurisdiction
over claims in which permanent total disability awards have been
made after the eighth day of April, one thousand nine hundred
ninety-three.
(1) The 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 division may reopen a claim for reevaluation when, in the
division's sole discretion, it concludes that there exists good
cause to believe that the claimant no longer meets the eligibility
requirements under subdivision (n), section six of this article.
The eligibility requirements, including any vocational standards,
shall be applied as those requirements are stated at the time of a
claim's reopening:
Provided further, That if a permanent total
disability award was made on or after the eighth day of April, one
thousand nine hundred ninety-three and on or before the second day
of February, one thousand nine hundred ninety five, the eligibility
requirements for the claimant upon a reopening shall be the
eligibility requirements which applied to his or her claim at the
time the award was made. 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 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 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), section six of this article.
The claimant may seek review of the 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 sixteen, 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 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.
(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 division or the office of judges nor shall
such a claim be remanded for the production of such evidence.
(b) For the purposes of 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
fifty percent threshold of paragraph (1), subdivision (n), 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 fifty percent
threshold.
(c) The 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 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 . The office of judges
may consider such a claim only after the 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 eighth day of April, one thousand nine hundred
ninety-three, a reduction in the amount of benefits as specified in
subsection (b) of this section shall be made whenever benefits are
being paid for a permanent total disability award regardless of
when 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 dependent persons, or to the
receipt of benefits pursuant to the provisions of subsection (e),
section ten of this article. Prior to the application of this
section to any claimant, the 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 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 twenty percent level:
Provided, That in no event shall
applicable benefits be reduced below the minimum weekly benefits as
provided for in subdivisions (b) and (d), section six of this
article.
ARTICLE 4C. EMPLOYER'S EXCESS LIABILITY FUND.
§23-4C-1. Purpose.
The purpose of this article is to 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,
the division may continue the fund 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), section seven, article
three, 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 employers'
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.
ARTICLE 4. REVIEW.
§23-5-1. Notice by division of decision; procedures on claims;
objections and hearing; mediation.
(a) The workers' compensation division shall have full power
and authority to hear and determine all questions within its
jurisdiction. In matters arising under articles three and four of
this chapter, the 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 division is authorized to develop such additional
information as it deems to be necessary in the interests of
fairness to the parties and in keeping with the fiduciary
obligations owed to the fund. With regard to any issue which is
ready for a decision, the division shall explain the basis of 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 division shall give notice, in writing,
to the employer, employee, claimant, as the case may be, of its
action, which notice shall state the time allowed for filing an
objection to such finding, and such action of the 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 division and other parties in
accordance with the procedures set forth in sections eight and nine
of this article.
(c) Where a finding or determination of the 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 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 division.
If all of the parties to the objection agree to mediation, the
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 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 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
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 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
division's employees with regard to 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 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. All appeals
prosecuted from the office of judges or from the appeal board shall
either be in the name of the workers' compensation division or
shall be against the workers' compensation division. 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 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 division shall, upon
proper and timely objection, be entitled to a hearing, as provided
in section 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 preceding section, it
shall appear to the 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 division in its former findings, and which would entitle
such claimant to greater benefits than the claimant has already
received, the 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 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 office of judges shall afford the claimant an
evidentiary hearing as provided in section nine of this article.
§23-5-4. Application by employer for modification of award --
Objection to modification; hearing.
In any case 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 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
division, shall upon proper and timely objection, be entitled to a
hearing as provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any such case it shall appear to the division that the
application filed pursuant to section four of this article fails to
disclose some fact or facts which were not theretofore considered
by the division in its former findings, and which would entitle
such employer to any modification of said previous award, the
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 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 office of judges shall afford
the employer an evidentiary hearing as provided in section 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 or appeal petition. In
exercising such discretion the 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.
With the exception of medical benefits, 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. 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. 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 except for medical benefits with the
claimant:
Provided, That the agreement must then be submitted to
the office of judges whereupon an administrative law judge shall
undertake the review and make the assurances provided for above as
in the case of an employer and claimant agreement. Upon the
approval of either type of agreement, the agreement shall be filed
with the division's records, and the filing constitutes a dismissal
of any objection or appeal on the issues agreed to. 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 future
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,
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) 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 was serving on the second day of February, one
thousand nine hundred ninety-five, 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
compensation programs performance council created in section one,
article three, 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, chapter twenty-nine of
this code. The chief administrative law judge may only be removed
by a vote of two thirds of the members of the 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 is given
opportunity to respond and to present evidence. 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 administrative law judges and other personnel as are necessary for the proper conduct of a system
of administrative review of orders issued by the 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 within the annual budget of the workers' compensation
division.
(e) Subject to the approval of the compensation programs
performance council pursuant to subdivisions (b) and (c), section
seven, article three, 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 workers' compensation division pursuant
to section one of this article. The office of judges shall not have
the power to initiate or to promulgate legislative rules as that phrase is defined in article three, chapter twenty-nine-a of this
code.
(f) The chief administrative law judge shall continue to have
the power to hear and determine all disputed claims in accordance
with the provisions of this article, establish a procedure for the
hearing of disputed claims, take oaths, examine witnesses, issue
subpoenas, establish the amount of witness fees, keep such records
and make such reports as are necessary for disputed claims, 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 division decisions by office of
administrative law judges.
Objections to a 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 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 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 division shall be a party to any proceeding under this
article.
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 division shall forthwith forward to the chief
administrative law judge all records, or copies of such records,
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 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 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 workers' compensation division may
appeal to the appeal board created in section eleven of this
article for a review of a decision by an administrative law judge.
No appeal or review shall lie unless application therefor be made
within thirty days of receipt of notice of the administrative law judge's final action or in any event within sixty days of the date
of such final action, regardless of notice and, unless the
application for appeal or review is filed within the time
specified, no such appeal or review shall be allowed, such time
limitation being hereby declared to be a condition of the right of
such appeal or review and hence jurisdictional.
§23-5-11. Workers' compensation 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), section
seven, article three, 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. 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
. 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 governed by the provisions of article six, chapter twenty-nine
of this code.
The board shall report monthly to the 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 administrative law judge
taken after a hearing held in accordance with the provisions of
section nine of this article, shall have the right to appeal to the
board created in section eleven of this article for a review of
such action. The workers' compensation division shall likewise
have the right to appeal to the appeal board any final action taken
by the administrative law judge. The aggrieved party shall file a
written notice of appeal with the office of judges directed to 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 office of judges shall notify the other parties immediately
upon the filing of a notice of appeal. The office of judges shall
forthwith make up a transcript of the proceedings before 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 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) After a review of the case, the board shall sustain the finding of the 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 administrative law judge should have made,
stating in writing its reasons therefor, and shall thereupon
certify the same to the workers' compensation division and chief
administrative law judge, who shall proceed in accordance
therewith.
(d) Instead of affirming, reversing or modifying the decision
of the administrative law judge as aforesaid, the board may, upon
motion of any party or upon its own motion, for good cause shown,
to be set forth in the order of the board, remand the case to the
chief administrative law judge for the taking of such new,
additional or further evidence as in the opinion of the board may
be necessary for a full and complete development of the facts of
the case. In the event the board shall remand the case to the
chief administrative law judge for the taking of further evidence
therein, the 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 administrative law
judge for good cause. After the completion of such supplemental
hearing, the administrative law judge shall, within sixty days,
render his or her decision affirming, reversing or modifying the former action of the administrative law judge, 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. All appeals from
the action of the administrative law judge shall be decided by the
board at the same session at which they are heard, unless good
cause for delay thereof be shown and entered of record. 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 chief administrative law judge and 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 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 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 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
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 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 division (in case the latter be the
applicant for review) be unsuccessful, such costs, not including
attorney's fees, shall be taxed against the division, payable out
of the workers' compensation fund, or shall be taxed against the
claimant, in the discretion of the court. But there shall be no
cost taxed upon a certified question.
§23-5-16. Fees of attorney for claimant; unlawful charging or
receiving of attorney fees.
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. 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.