ENROLLED
H. B. 501
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Passed November 14, 2005; in effect from passage.]
AN ACT to amend and reenact §23-2C-1, §23-2C-2,§23-2C-4, §23-2C-
7, §23-2C-8,§23-2C-15, §23-2C-16 and §23-2C-20 of the Code
of West Virginia, 1931, as amended; to further amend said
code by adding thereto a new section, designated §23-2C-3a;
and to amend and reenact §23-4B-1, §23-4B-2, §23-4B-3, §23-
4B-4, §23-4B-5, §23-4B-7 and §23-4B-9 of said code, all
relating to the transition of the Workers' Compensation
Commission to the West Virginia Employers' Mutual Insurance
Company generally.
Be it enacted by the Legislature of West Virginia:
That §23-2C-1, §23-2C-2, §23-2C-4, §23-2C-7, §23-2C-8, §23-
2C-15, §23-2C-16 and §23-2C-20 of the Code of West Virginia,
1931, as amended, be amended and reenacted; that said code be
amended by adding thereto a new section, designated §23-2C-3a;
and that §23-4B-1, §23-4B-2, §23-4B-3, §23-4B-4, §23-4B-5, §23-4B-7 and §23-4B-9 of said code be amended and reenacted, all to
read as follows:
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-1. Findings and purpose.
(a) The Legislature finds that:
(1) There is a long-term actuarial funding crisis in the
state-run monopolistic workers' compensation system;
(2) Similar short-term and long-term crises have been
ongoing during the past two decades;
(3) During the current crisis, employers in West Virginia
find it increasingly difficult to afford the rates charged by the
Workers' Compensation Commission for workers' compensation
coverage and that paying said rates adversely impacts employers'
ability to compete in a global economic environment;
(4) The cost of obtaining workers' compensation coverage
from the state system may result in many employers leaving the
state;
(5) Employers' access to competitive workers' compensation
rates and the resulting economic development benefit is of utmost
importance to the citizens of West Virginia;
(6) A mechanism is needed to provide an enduring solution to
this recurring workers' compensation crisis;
(7) An employers' mutual insurance company or a similar
entity has proven to be a successful mechanism in other states for helping employers secure insurance and for stabilizing the
insurance market;
(8) There is a substantial public interest in creating a
method to provide a stable workers' compensation insurance market
in this state;
(9) The state-run workers' compensation program is a
substantial actual and potential liability to the state;
(10) There is substantial public benefit in transferring
certain actual and potential future liability of the state to the
private sector and creating a stable self-sufficient entity which
will be a potential source of workers' compensation coverage for
employers in this state;
(11) A stable, financially viable insurer in the private
sector will aid in providing a continuing source of insurance
funds to compensate injured workers; and
(12) Because the public will greatly benefit from the
formation of an employers' mutual insurance company, state
efforts to encourage and support the formation of such an entity,
including providing funding for the entity's initial capital, is
in the clear public interest.
(b) The purpose of this article is to create a mechanism for
the formation of an employers' mutual insurance company that will
provide:
(1) A means for employers to obtain workers' compensation
insurance that is reasonably available and affordable; and
(2) Compensation to employees of mutual policyholders who
suffer work place injuries as defined in this chapter.
(c) The further purpose of this article is to transfer New
Fund assets relating to the workers' compensation insurance
business to the company, including a reasonable level of
policyholder surplus, and for the company to assume the New Fund
liabilities related to the transferred assets. It is the intent
of this article to provide for the initial capitalization of the
company to comply with and to meet the requirements of section
351 and related sections of the Internal Revenue Code.
§23-2C-2. Definitions.
(a) "Executive director" means the Executive Director of the
West Virginia Workers' Compensation Commission as provided in
section one-b, article one of this chapter.
(b) "Commission" means the West Virginia Workers'
Compensation Commission as provided by section one, article one
of this chapter.
(c) "Insurance Commissioner" means the Insurance
Commissioner of West Virginia as provided in section one, article
two, chapter thirty-three of this code.
(d) "Company" or "successor to the commission" means the
employers' mutual insurance company created pursuant to the terms
of this article.
(e) "Policy default" shall mean a policyholder that has failed to comply with the terms of its workers' compensation
insurance policy and is consequently without workers'
compensation insurance coverage.
(f) "Industrial insurance" means insurance which provides
all compensation and benefits required by this chapter.
(g) "Insurer" includes:
(1) A self-insured employer; and
(2) A private carrier.
(h) "Industrial Council" means the advisory group
established in section five of this article.
(I) "Mutualization Transition Fund" shall be a fund over
which the State Treasurer is custodian. Moneys transferred or
otherwise payable to the Mutualization Transition Fund shall be
deposited in the State Treasury to the credit of the
Mutualization Transition Fund. Disbursements shall be made from
the Mutualization Transition Fund upon requisitions signed by the
executive director, and, upon termination of the commission, the
Insurance Commissioner, and shall be reasonably related to the
legal, operational, consultative and human resource-related
expenses associated with the establishment of the company and the
transferring of personnel from the commission to the company.
(j) "New Fund" shall mean a fund owned and operated by the
commission and, upon termination of the commission, the successor
organization of the West Virginia Workers' Compensation
Commission and shall consist of those funds transferred to it from the Workers' Compensation Fund and any other applicable
funds. New Fund shall include all moneys due and payable to the
Workers' Compensation Fund for the quarters ending the thirtieth
day of September, two thousand five, and the thirty-first day of
December, two thousand five, which have not been collected by the
Workers' Compensation Fund as of the thirty-first day of
December, two thousand five.
(k) "New Fund liabilities" shall mean all claims payment
obligations (indemnity and medical expenses) for all claims,
actual and incurred but not reported, for any claim with a date
of injury or last exposure on or after the first day of July, two
thousand five: Provided, That New Fund liabilities shall begin
with claims payments becoming due and owing on said claims on or
after the first day of January, two thousand six.
(l) "Old Fund" shall mean a fund held by the State
Treasurer's office consisting of those funds transferred to it
from the Workers' Compensation Fund or other sources and those
funds due and owing the Workers' Compensation Fund as of the
thirtieth day of June, two thousand five, that are thereafter
collected. The Old Fund and assets therein shall remain property
of the state and shall not novate or otherwise transfer to the
company.
(m) "Old Fund liabilities" mean all claims payment
obligations (indemnity and medical expenses), related liabilities
and appropriate administrative expenses necessary for the administration of all claims, actual and incurred but not
reported, for any claim with a date of injury or last exposure on
or before the thirtieth day of June, two thousand five:
Provided, That Old Fund liabilities shall include all claims
payments for any claim, regardless of date of injury or last
exposure, through the thirty-first day of December, two thousand
five: Provided, however, That Old Fund liabilities shall include
all claims with dates of injuries or last exposure prior to the
first day of July, two thousand four, for bankrupt self-insured
employers that had defaulted on their claims obligations which
have been recognized by the commission in its actuarially
determined liability number as of the thirtieth day of June, two
thousand five.
(n) "Private carrier" means any insurer or the legal
representative of an insurer authorized by the Insurance
Commissioner to provide workers' compensation insurance pursuant
to this chapter and which maintains an office in the state. The
term does not include a self-insured employer or private
employers but shall include any successor to the commission.
(o) "Uninsured Employer Fund" means a fund held by the State
Treasurer's office consisting of those funds transferred to it
from the Workers' Compensation Fund and any other source.
Disbursements from the Uninsured Employer Fund shall be upon
requisitions signed by the Insurance Commissioner, and as otherwise set forth in an exempt legislative rule promulgated by
the workers' compensation board of managers.
(p) "Self-Insured Employer Guaranty Risk Pool" shall be a
fund held by the State Treasurer's office consisting of those
funds transferred to it from the guaranty pool created pursuant
to 85 CSR §19 (2004) and any future funds collected through
continued administration of that exempt legislative rule as
administered by the Insurance Commissioner. Disbursements shall
be made from the Self-Insured Employer Guaranty Risk Pool upon
requisitions signed by the Insurance Commissioner. The
obligations of the fund shall be as provided in 85 CSR §19
(2004).
(q) "Self-Insured Employer Security Risk Pool" shall be a
fund held by the state's Treasurer consisting of those funds paid
into it through the Insurance Commissioner's administration of 85
CSR §19 (2004). Disbursement from said fund shall be made from
the Self-Insured Employer Security Risk Pool upon requisitions
signed by the Insurance Commissioner. The obligations of the fund
shall be as provided in 85 CSR §19: Provided, That said
liabilities shall be limited to those self-insured employers who
default on their claims obligations after the termination of the
commission.
(r) "Private Carrier Guaranty Fund" shall be a fund held by
the State Treasurer's office consisting of funds deposited
pursuant to this article. Disbursements shall be made from the Private Carrier Guaranty Fund upon requisitions signed by the
Insurance Commissioner. The obligations of the fund shall be as
provided in this article.
(s) "Assigned Risk Fund" shall be a fund held by the State
Treasurer's office consisting of funds deposited pursuant to this
article. Disbursements shall be made from the Assigned Risk Fund
upon requisitions signed by the Insurance Commissioner. The
obligations of the fund shall be as provided in this article.
(t) "Comprehensive financial plan" shall mean the plan
compiled by the director for acceptance by the Insurance
Commissioner identifying and forecasting cash flows, funding
sources, debt terms and structures and scheduled amortization and
permanent resolution of all Old Fund liabilities. The
comprehensive financial plan shall provide for the retirement of
the revenue bonds authorized by article two-d of this chapter and
all realized and potential claims against the Old Fund shall be
fully reserved. The comprehensive financial plan may include any
other information the Insurance Commissioner may require as a
basis for managing the post-transition fiscal soundness of the
Old Fund.
§23-2C-3a. Employers' mutual insurance company - additional
provisions enacted in November 2005.
(a) Notwithstanding any other provisions of this article to
the contrary, the employers' mutual insurance company:
(1) May not be dissolved.
(2) May not transact such other kinds of property and
casualty insurance for which the company is otherwise qualified
under the provisions of this code prior to the first day of
January, two thousand nine.
(b) As soon as practical following the effective date of
this section, the company established pursuant to the provisions
of this article shall, through a vote of a majority of its
provisional board, file its amended articles of incorporation and
amended bylaws with the Insurance Commissioner and apply for a
license with the Insurance Commissioner to transact insurance in
this state. Notwithstanding any other provision of this code,
the Insurance Commissioner shall act on the documents within
fifteen days of the filing by the company.
(c) Notwithstanding any provision of subsection (g), section
three of this article to the contrary, in the event the Governor
certifies to the Legislature that revenue bonds issued pursuant
to article two-d of this chapter have been retired and that the
unfunded liability of the Old Fund has been paid or has been
provided for in its entirety, whichever occurs last, then:
(1) The premiums surcharge imposed by subdivision (2),
subsection (f), section three of this article shall not sunset
and shall continue to be remitted in accordance with the
provisions of said subsection; and
(2) The premiums surcharge imposed by subdivision (3), subsection (f), section three of this article shall sunset and
not be collectible with respect to workers' compensation
insurance premiums paid when the policy is renewed on or after
the first day of the month following the month in which the
Governor makes the certification.
(d) Except as may otherwise be provided in this subsection,
all provisions of section three of this article shall remain in
full force and effect.
§23-2C-4. Governance and organization.
(a) (1) The commission shall implement the initial formation
and organization of the company as provided by this article.
(2) From the inception of the company, until the first day
of January, two thousand six, the company shall be governed by a
provisional board of directors consisting of the three persons on
the executive committee of the workers' compensation board of
managers and four members of the Legislature. Two members of the
West Virginia Senate and two members of the West Virginia House
of Delegates shall serve as advisory nonvoting members of the
board. The Governor shall appoint the legislative members to the
board. No more than three of the legislative members shall be of
the same political party. The provisional board shall have the
authority to function as necessary to establish the company and
cause it to become operational, including the right to contract
on behalf of the company. Each voting board member shall receive compensation of not more than three hundred fifty dollars per day
and actual and necessary expenses for each day during which he or
she is required to and does attend a meeting of the board.
(3) Except as limited by this section and applicable
insurance rules and statutes, the company may: (1) On its own;
(2) through the formation or acquisition of subsidiaries; or (3)
through a joint enterprise, offer:
(A) Workers' compensation insurance in a state other than
West Virginia to the extent it also provides workers'
compensation or occupational disease insurance coverage to the
employer pursuant to this chapter;
(B) Other workers' compensation products and services and
related products and services in West Virginia or other states;
and
(C) Other property and casualty insurance in West Virginia
and other states on or after the first day of January, two
thousand nine.
(b) Any election process for the board of directors
developed, implemented and overseen by the company's provisional
board prior to the effective date of the amendments to this
section enacted during the fifth extraordinary session of the
Legislature in two thousand five is nullified and the designation
of the company's initial board of directors shall be governed by
the following: Effective the first day of January, two thousand
six, the company shall be governed by a board of directors consisting of seven directors, as follows:
(1) Three owners or officers of an entity that has purchased
or will immediately upon termination of the commission purchase
and maintain an active workers' compensation insurance policy
from the company. At least one shall be a certified public
accountant with financial management or pension or insurance
audit expertise and at least one shall be an attorney with
financial management experience. These three directors shall be
appointed by the Governor.
(2) Two directors who have substantial experience as an
officer or employee of a company in the insurance industry, one
of whom is from a company with less than fifty employees. These
two directors shall be appointed by the Governor.
(3) One director with general knowledge and experience in
business management who is an officer and employee of the company
and is responsible for the daily management of the company.
(4) The chief executive officer of the company.
(c) The initial board of directors appointed by the Governor
shall serve from the termination of the commission through the
thirty-first day of December, two thousand eight, and may be not
removed from that position except for cause.
(d) Any board vacancy that occurs from the termination of
the commission through the thirty-first day of December, two
thousand eight, shall be filled through appointment by the
Governor for the unexpired term.
(e) Upon expiration of the initial terms or upon a vacancy
of the board following the thirty-first day of December, two
thousand eight, the directors of the company are to be chosen in
accordance with the articles of incorporation and bylaws of the
company, as amended, which shall provide for the policyholders to
nominate and elect future directors. Furthermore, owners,
directors or employees of employers otherwise licensed to write
workers' compensation insurance in this state or licensed or
otherwise authorized to act as a third-party administrator shall
not be eligible to be nominated, appointed, elected or serve on
the company's board of directors.
(f) The Executive Director shall prepare and file amended
articles of incorporation and bylaws in accordance with the
provisions of this article and the provisions of chapters thirty-
one and thirty-three of this code.
(g) It is the intent of this legislation to create an entity
exempt from federal taxation, as provided for in Section
501(c)(27)(B) of the Internal Revenue Code, for as long as the
company meets the federal qualification requirements of Section
501(c)(27)(B) of the Internal Revenue Code.
§23-2C-7. Custody, investment and disbursement of funds.
(a) The State Treasurer shall be the custodian of the
workers' compensation Old Fund, workers' compensation Uninsured
Employer Fund, the Self-Insured Employer Guaranty Risk Pool, the Self-Insured Employer Security Risk Pool, the Private Carrier
Guaranty Fund and the Assigned Risk Fund and moneys payable to
each of these funds shall be deposited in the State Treasury to
the credit of the funds. Each fund shall be a separate and
distinct fund upon the books and records of the Auditor and
Treasurer. Disbursements from these funds shall be made upon
requisitions signed by the executive director and, effective upon
termination of the commission, the Insurance Commissioner. The
workers' compensation Old Fund, the workers' compensation
Uninsured Employer Fund, the Self-Insured Employer Guaranty Risk
Pool, Self-Insured Employer Security Risk Pool, the Private
Carrier Guaranty Fund and the Assigned Risk Fund are participant
plans as defined in section two, article six, chapter twelve of
this code and are subject to the provisions of section nine-a of
said article. The funds may be invested by the Investment
Management Board in accordance with said article.
(b) If the Governor issues the proclamation set forth in
this article, then, effective upon termination of the commission,
all remaining assets and funds contained in the Workers'
Compensation Fund which are payable to the New Fund shall be so
disbursed and paid to the company by communication of the
executive director to the State Treasurer or other appropriate
state official prior to the termination of the commission.
§23-2C-8. West Virginia Uninsured Employer Fund.
(a) The West Virginia Uninsured Employer Fund shall be
governed by the following:
(1) All money and securities in the fund must be held by the
State Treasurer as custodian thereof to be used solely as
provided in this article.
(2) The State Treasurer may disburse money from the fund
only upon written requisition of the Insurance Commissioner.
(3) The Insurance Commissioner shall assess each private
carrier and all self-insured employers an amount to be deposited
in the fund. The assessment may be collected by each private
carrier from its policy holders in the form of a policy
surcharge. To establish the amount of the assessment, the
Insurance Commissioner shall determine the amount of money
necessary to maintain an appropriate balance in the fund for each
fiscal year and shall allocate a portion of that amount to be
payable by private carriers, a portion to be payable by self-
insured employers and a portion to be paid by any other
appropriate group. After allocating the amounts payable, the
Insurance Commissioner shall apply an assessment rate to:
(A) Private carriers that reflects the relative hazard of
the employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is
based upon expected annual premiums to be received;
(B) Self-insured employers that results in an equitable
distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims; and
(C) Any other categories of payees that results in an
equitable distribution of costs among them and is based upon
expected annual expenditures for claims or premium to be
received.
(4) The workers' compensation board of managers may adopt
rules for the establishment and administration of the assessment
methodologies, rates, payments and any penalties that the
workers' compensation board of managers determines are necessary
to carry out the provisions of this section.
(b) Payments from the fund shall be governed by the
following:
(1) Except as otherwise provided in this subsection, an
injured worker of any employer required to be covered under this
chapter who has failed to obtain coverage may receive
compensation from the uninsured employers' fund if:
(A) He or she meets all jurisdictional and entitlement
provisions of this chapter;
(B) He or she files a claim with the Insurance Commissioner;
and
(C) He or she makes an irrevocable assignment to the
Insurance Commissioner a right to be subrogated to the rights of
the injured employee.
(2) If the Insurance Commissioner receives a claim, it shall
immediately notify the employer of the claim. For the purposes of this section, the employer has the burden of proving that it
provided mandatory workers' compensation insurance coverage for
the employee or that it was not required to maintain workers'
compensation insurance for the employee. If the employer meets
this burden, benefits shall not be paid from the fund.
(3) Any employer who has failed to provide mandatory
coverage required by the provisions of this chapter is liable for
all payments made on its behalf, including any benefits,
administrative costs and attorney's fees paid from the fund or
incurred by the Insurance Commissioner.
(4) The Insurance Commissioner:
(A) May recover from the employer the payments made by it,
any accrued interest and attorney fees and costs by bringing a
civil action in a court of competent jurisdiction.
(B) May enter into a contract with any person, including the
third-party administrator of the Uninsured Employer Fund, to
assist in the collection of any liability of an uninsured
employer.
(C) In lieu of a civil action, may enter into an agreement
or settlement regarding the collection of any liability of an
uninsured employer.
(5) The Insurance Commissioner shall:
(A) Determine whether the employer was insured within five
days after receiving notice of the claim from the employee.
(B) Assign the claim to the third-party administrator of the fund for administration and, if appropriate, payment of
compensation.
(6) Upon determining whether the claim is accepted or
denied, the third-party administrator shall notify the injured
employee and the named employer of its determination.
(7) Any party aggrieved by a determination made by the
Insurance Commissioner or the third-party administrator regarding
the claims decisions made pursuant to this section may appeal
that determination by filing a protest with the office of judges
as set forth in article five of this chapter.
(8) An uninsured employer is liable for the interest on any
amount paid on his or her claims from the fund. The interest
must be calculated at a rate set in accordance with the
provisions of section thirteen, article two of this chapter,
compounded monthly, from the date the claim is paid from the
account until payment is received by the Insurance Commissioner
or third-party administrator from the employer.
(9) Attorney's fees recoverable by the Insurance
Commissioner or third-party administrator pursuant to this
section must be paid at the usual and customary rate for that
attorney.
(10) In addition to any other liabilities provided in this
section, the Insurance Commissioner or the third-party
administrator may impose an administrative fine of not more than
ten thousand dollars against an employer if the employer fails to provide mandatory coverage required by this chapter. All fines
and other moneys collected pursuant to this section shall be
deposited into the Uninsured Employer Fund.
(c) Employees of self-insured employers who are injured
while employed by a self-insured employer are ineligible for
benefits from the West Virginia Uninsured Employer Fund.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all
subscriber policies with the commission shall novate to the
company and all employers otherwise shall purchase workers'
compensation insurance from the company unless permitted to self-
insure their obligations. The company shall assume
responsibility for all New Fund obligations of the subscriber
policies which novate to the company or which are issued
thereafter. Each subscriber whose policy novates to the company
shall also have its advanced deposit credited to its account with
the company. Employers purchasing workers' compensation
insurance from the company shall have the right to designate a
representative or agent to act on its behalf in any and all
matters relevant to coverage and claims as administered by the
company.
(b) Effective the first day of July, two thousand eight, an
employer may elect to: (1) Continue to purchase workers'
compensation insurance from the company; (2) purchase workers' compensation insurance from another private carrier licensed and
otherwise authorized to transact workers' compensation insurance
in this state; or (3) self-insure its obligations if it satisfies
all requirements of this code to so self-insure and is permitted
to do so: Provided, That all state and local governmental
bodies, including, but not limited to, all counties and
municipalities and their subdivisions and including all boards,
colleges, universities and schools, shall continue to purchase
workers' compensation insurance from the company through the
thirtieth day of June, two thousand twelve. The company and
other private carriers shall be permitted to sell workers'
compensation insurance through licensed agents in the state. To
the extent that a private carrier markets workers' compensation
insurance through a licensed agent, it shall be subject to all
applicable provisions of chapter thirty-three of this code. All
employers' must immediately notify the Insurance Commissioner of
its private carrier and any change thereto.
(c) An employer may elect to change its private insurer
carrier on or after the first day of July, two thousand eight, if
the employer has:
(1) Given at least thirty days' notice to the Insurance
Commissioner of the change of insurer; and
(2) Furnished evidence satisfactory to the Insurance
Commissioner that the payment of compensation has otherwise been
secured.
(d) Each private carrier and employer shall notify the
Insurance Commissioner if an employer has changed his or her
insurer or has allowed his or her insurance to lapse within
twenty- four hours or by the end of the next working day,
whichever is later, after the insurer has notice of the change or
lapse. Every employer shall post a notice upon its premises in a
conspicuous place identifying its industrial insurer. The notice
must include the insurer's name, business address and telephone
number and the name, business address and telephone number of its
nearest adjuster in this state. The employer shall at all times
maintain the notice provided for the information of his or her
employees. Release of employer policy information and status by
the industrial council and the Insurance Commissioner shall be
governed by section four, article one of this chapter. The
Insurance Commissioner shall collect and maintain information
related to officers, directors and ten percent or more owners of
each carrier's policy holders. The private carrier shall provide
said information to the Insurance Commissioner.
(e) Any rule promulgated by the workers' compensation board
of managers empowering agencies of this state to revoke or refuse
to grant, issue or renew any contract, license, permit,
certificate or other authority to conduct a trade, profession or
business to or with any employer whose account is in default with
the commission shall be fully enforceable by the Insurance
Commissioner against the employer in policy default with a private carrier.
(f) Effective the first day of January, two thousand nine,
the company may decline to offer coverage to any applicant.
Effective the first day of January, two thousand nine, the
company and private carriers may cancel a policy or decline to
renew a policy upon the issuance of sixty days' written advance
notice to the policyholder: Provided, That cancellation of the
policy by the carrier for failure of consideration to be paid by
the policyholder is effective after fifteen days advance written
notice of cancellation to the policyholder.
§23-2C-16. Administration of Old Fund, Uninsured Employer Fund,
Self-Insured Employer Guaranty Risk Pool, Self-
Insured Employer Security Risk Pool and Private
Carrier Guaranty Fund.
(a) Notwithstanding any provision of this code to the
contrary, the company shall be the initial third-party
administrator of the Old Fund, Uninsured Employer Fund, Self-
Insured Employer Guaranty Risk Pool, Self-Insured Employer
Security Risk Pool and Private Carrier Guaranty Fund from the
termination of the commission and thereafter for a term of at
least six months but not more than three years pursuant to an
agreement to be entered into between the Insurance Commissioner
and the company prior to the termination of the commission. The
company shall be paid a reasonable fee for services provided. The company's administrative duties may include, but not be
limited to, receipt of all claims, processing said claims,
providing for the payment of said claims through the State
Treasurer's office or other applicable state agency and ensuring,
through the selection and assignment of counsel, that claims
decisions are properly defended. The administration of said
funds thereafter shall be subject to the procedures set forth in
article three, chapter five-a of this code.
(b) The Insurance Commissioner shall review claims
determined to be payable from said funds and may contest the
determination pursuant to the provisions of article five of this
chapter.
(c) The Insurance Commissioner may conduct or cause to be
conducted an annual audit to be performed on said funds.
(d) The Insurance Commissioner may contract or employ
counsel to perform legal services related solely to the
collection of moneys due the Old Fund, including the collection
of moneys due the Old Fund and enforcement of repayment
agreements entered into for the collection of moneys due on or
before the thirtieth day of June, two thousand five, in any
administrative proceeding and in any state or federal court.
§23-2C-20. Claims administration issues.
(a) A self-insured employer shall continue to comply with
rules promulgated by the board of managers governing the self-administration of its claims and the successor to the commission
shall also comply with the rules promulgated by the board of
managers governing the self-administration of claims.
(b) The successor to the commission, any other private
carrier and any employer that self-insures its risk and self-
administers its claims shall exercise all authority and
responsibility granted to the commission in this chapter and
provide notices of action taken to effect the purposes of this
chapter to provide benefits to persons who have suffered injuries
or diseases covered by this chapter. The successor to the
commission, private carriers and self-insured employers shall at
all times be bound and shall comply fully with all of the
provisions of this chapter. Furthermore, all of the provisions
contained in article four of this chapter pertaining to
disability and death benefits are binding on and shall be
strictly adhered to by the successor to the commission, private
carriers and the self-insured employer in their administration of
claims presented by employees of the self-insured employer.
(c) Upon termination of the commission, the Occupational
Pneumoconiosis Board shall be transferred to the Insurance
Commissioner and shall be administered by the Insurance
Commissioner. The company and other private carriers shall have
all authority and responsibility granted to the self-insured
employers in the administration and processing of occupational
pneumoconiosis claims.
(d) Upon termination of the commission, all claims
allocation responsibilities shall transfer from the commission to
the Insurance Commissioner.
(e) Upon termination of the commission, the third-party
administrator of the Old Fund shall have all administrative and
adjudicatory authority vested in the commission in administering
old law liabilities and otherwise processing and deciding old law
claims.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-1. Purpose.
The purpose of this article is to establish a fund to
provide benefits to coal miners who are totally disabled by
pneumoconiosis and to eligible dependents of coal miners whose
deaths were due to pneumoconiosis or who were totally disabled
from pneumoconiosis at time of their deaths. The further purpose
of this article is to provide a readily available insurer of
liability created by Title IV of the federal Coal Mine Health and
Safety Act of 1969, as amended, for claims incurred under said
Act, including all claims where the date of last exposure is on
or before the thirty-first day of December, two thousand five,
without regard to the date the claim is filed.
§23-4B-2. Coal-Workers' Pneumoconiosis Fund established.
For the relief of persons who are entitled to receive
benefits by virtue of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, for claims incurred under
said Act, including all claims where the date of last exposure is
on or before the thirty-first day of December, two thousand five,
without regard to the date the claim is filed, there is continued
a fund to be known as the Coal-Workers' Pneumoconiosis Fund,
which fund shall be separate from the Workers' Compensation Fund.
The Coal-Workers' Pneumoconiosis Fund shall consist of premiums
and other funds paid to the fund by employers, subject to the
provisions of Title IV of the federal Coal Mine Health and Safety
Act of 1969, as amended, who shall elect to subscribe to the fund
to ensure the payment of benefits required by the Act for claims
incurred under said Act, including all claims where the date of
last exposure is on or before the thirty-first day of December,
two thousand five, without regard to the date the claim is filed.
The State Treasurer shall be the custodian of the Coal-
Workers' Pneumoconiosis Fund and all premiums, deposits or other
moneys paid to the fund shall be deposited in the State Treasury
to the credit of the Coal-Workers' Pneumoconiosis Fund.
Disbursements from the fund shall be made upon requisition signed
by the Executive Director of the Workers' Compensation Commission
to those persons entitled to participate in the fund: Provided,
That effective upon the termination of the Workers' Compensation
Commission, disbursement from the Coal-Workers' Pneumoconiosis
Fund shall be made upon requisitions signed by the Insurance
Commissioner. The Insurance Commissioner shall collect any unpaid premium and deposit the same in said fund. The West
Virginia Investment Management Board may invest any surplus,
reserve or other moneys belonging to the Coal-Workers'
Pneumoconiosis Fund in accordance with article six, chapter
twelve of this code.
§23-4B-3. To whom benefits paid.
Only those classes of persons who are entitled to benefits
under Title IV of the federal Coal Mine Health and Safety Act of
1969, as amended, for claims incurred under said Act, including
all claims where the date of last exposure is on or before the
thirty-first day of December, two thousand five, without regard
to the date the claim is filed, are eligible to participate in
the Coal-Workers' Pneumoconiosis Fund.
§23-4B-4. Who may subscribe.
Only those employers who are subject to the provisions of
Title IV of the federal Coal Mine Health and Safety Act of 1969,
as amended, may elect to subscribe to the Coal-Workers'
Pneumoconiosis Fund to insure the liability imposed upon such
employers under the provisions of Title IV of the Act. Coverage
by the Coal-Workers' Pneumoconiosis Fund will be provided only
for claims incurred under the Act, including all claims where the
date of last exposure is on or before the thirty-first day of
December, two thousand five, without regard to the date the claim
is filed.
§ 23-4B-5. Payment of benefits.
Upon receipt of an order of compensation issued pursuant to
a claim for benefits filed under the provisions of Title IV of
the federal Coal Mine Health and Safety Act of 1969, as amended,
for claims incurred under said Act, including all claims where
the date of last exposure is on or before the thirty-first day of
December, two thousand five, without regard to the date the claim
is filed, the executive director shall disburse the Coal-Workers'
Pneumoconiosis Fund in the amounts and to the persons as directed
by the order: Provided, That effective upon the termination of
the Workers' Compensation Commission, disbursement from the Coal-
workers' Pneumoconiosis Fund shall be made upon requisitions
signed by the Insurance Commissioner.
§23-4B-7. Administration.
(a) The Coal-Workers' Pneumoconiosis Fund shall be
administered by the Executive Director of the Workers'
Compensation Commission, who shall employ any employees necessary
to discharge his or her duties and responsibilities under this
article. All payments of salaries and expenses of the employees
and all expenses peculiar to the administration of this article
shall be made by the State Treasurer from the Coal-Workers'
Pneumoconiosis Fund upon requisitions signed by the executive
director.
(b) Notwithstanding any provision of this code to the contrary, effective from the termination of the Workers'
Compensation Commission, the Coal-Workers' Pneumoconiosis Fund
shall be administered by the Insurance Commissioner, who shall
employ any employees and contract with any parties necessary to
discharge his or her duties and responsibilities under this
article. All payments of salaries and expenses of the employees
and all expenses peculiar to the administration of this article
shall be made by the State Treasurer from the Coal-Workers'
Pneumoconiosis Fund upon requisitions signed by the Insurance
Commissioner: Provided, That the employers' mutual insurance
company established pursuant to article two-c of this chapter
shall be the administrator of the Coal-Workers' Pneumoconiosis
Fund for a term not to exceed three years following the
termination of the Workers' Compensation Commission pursuant to
an agreement to be entered into between the Insurance
Commissioner and the Company prior to the termination of the
Workers' Compensation Commission. The Company's administrative
duties may include, but not be limited to, receipt of all claims,
processing said claims, providing for the payment of said claims
through the State Treasurer's office and ensuring, through the
selection and assignment of counsel, that claims decisions are
properly defended. Any contract entered into by the Insurance
Commissioner for the administration of the Coal-Workers'
Pneumoconiosis Fund thereafter shall be subject to the procedures set forth in article three,
chapter five-a of this code.
§23-4B-9. Closure of Coal-Workers' Pneumoconiosis Fund and
coverage provided by the successor of the
commission.
Upon the termination of the commission, the Coal-Workers'
Pneumoconiosis Fund shall close and the company shall offer
insurance to provide for the benefits required by this article
until at least the thirty-first day of December, two thousand
eight. All claims payment obligations, including indemnity
benefits, medical benefits, administrative and all other expenses
necessary for the administration and defense of claims, where the
date of last exposure is on or before the thirty-first day of
December, two thousand five, without regard to the date the claim
is filed, shall be an obligation of the Coal-Workers'
Pneumonoconiosis Fund created in this article and not of the
company.