Senate Bill No. 537
(By Senators Minard and McCabe)
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[Introduced March 11, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to repeal §23-5-17 and §23-5-18 of the Code of West
Virginia, 1931, as amended; to amend and reenact §23-2-1d of
said code; to amend and reenact §23-2A-1 of said code; to
amend and reenact §23-2C-8 and §23-2C-21 of said code; to
amend and reenact §23-4-6b of said code; to amend said code by
adding thereto a new section, designated §23-4-8d; to amend
and reenact §23-5-1 and §23-5-3 of said code; and to amend and
reenact §33-2-22 of said code, all relating to workers'
compensation; eliminating obsolete sunset provisions;
redefining the responsibility of prime contractors to injured
employees of their subcontractors; clarifying subrogation
rights with respect to employees injured by third parties;
providing for a unitary decision-making process in claims
involving the Uninsured Employers Fund; extending the scope of
permissible remedies to include those in the general insurance code; permitting the recovery of administrative costs in
certain actions; eliminating mandatory allocation in hearing
loss claims; authorizing the adoption of exempt legislative
rules; providing that claims for medical benefits in
occupational pneumoconiosis claims may be made at any time;
clarifying that a sixty-day period applies to various
protests; extending the jurisdiction of the office of judges
to hear certain protests; mandating conditional payments in
certain instances; and authorizing the Insurance Commissioner
to compromise and settle claims for moneys due the Old Fund
and Uninsured Employers Fund.
Be it enacted by the Legislature of West Virginia:
That §23-5-17 and §23-5-18 of the Code of West Virginia, 1931,
as amended, be repealed; that §23-2-1d of said code be amended and
reenacted; that §23-2A-1 of said code be amended and reenacted;
that §23-2C-8 and §23-2C-21 of said code be amended and reenacted;
that §23-4-6b of said code be amended and reenacted; that said code
be amended by adding thereto a new section, designated §23-4-8d;
that §23-5-1 and §23-5-3 of said code be amended and reenacted; and
that §33-2-22 of said code be amended and reenacted, all to read as
follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1d. Primary contractor and subcontractor liability.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article includes 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
does not include one providing goods rather than services. For
purposes of this subsection, extraction of natural resources is a
provision of services. In the event that a subcontracting employer
defaults on its obligations to make payments to the commission,
then the primary contractor is liable for the payments. However,
nothing contained in this section shall extend or except to a
primary contractor or subcontractors the provisions of section 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, however, That this section is also 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. It is the intent of the Legislature that no
contractor, whether a primary contractor, subcontractor or sub-subcontractor, escape or avoid liability for any workers'
compensation premium, assessment or tax. The executive director
shall propose for promulgation a rule to effect this purpose on or
before December 31, two thousand three.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the executive
director, 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 results 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 commission is entitled to collect only once for
the amount of premiums, premium deposits and interest due to the
default, but the commission 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 commission
inform the primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commission shall 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 commission by the primary contractor. The mailing
is good and sufficient notice to the primary contractor of the
subcontractor's default. However, the primary contractor is not
liable under this section until the first day of the calendar
quarter following the calendar quarter in which the notice is given
and then the liability is only for that following calendar quarter
and thereafter and only if the subcontract has not been terminated:
Provided, That the commission is entitled to collect only once for
the amount of premiums, premium deposits and interest due to the
default, but the commission 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 in this section,
the default or failure is 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 January 1, one
thousand nine hundred ninety-four.
(e) The commission 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.
(f) Effective upon termination of the commission, this section
shall be applicable only to unpaid premiums due the commission or
the old fund as provided in article two-c of this chapter.
(a) The Legislature finds that every prime contractor should
be responsible to ensure that any subcontractor with which it
directly contracts is either self-insured or maintains workers'
compensation coverage throughout the periods during which the
services of a subcontractor are used and, further, if the
subcontractor is neither self-insured nor covered, then the prime
contractor rather than the Uninsured Employer Fund should be
responsible for the payment of statutory benefits. It is also the
intent of the Legislature that this section not be used as the
basis for expanding the liability of a prime contractor beyond the
limited purpose of providing coverage in the limited circumstances
and in the manner expressly addressed by this section and the rule
adopted in accordance herewith.
(b) If a rule is adopted and made effective in accordance with
subsection (e) of this section, if an employee of a subcontractor
suffers an injury or disease and, on the date of injury or last exposure, his or her employer did not have workers' compensation
coverage or was not an approved self-insured employer, then that
employee may file a claim against the prime contractor for which
the subcontractor performed services on the date of injury or last
exposure, and such claim shall be administered in the same manner
as claims filed by injured employees of the prime contractor:
Provided, That a subcontractor that subcontracts with another
subcontractor shall, with respect to such subcontract, be deemed
the prime contractor for the purposes of this section: Provided,
however, That the provisions of this subsection do not relieve a
subcontractor from any requirements of this chapter, including the
duty to maintain coverage on its employees.
(c) Notwithstanding that an injured employee of a
subcontractor is eligible for workers' compensation benefits
pursuant to this section from the prime contractor's carrier or the
self-insured prime contractor, whichever is applicable, a
subcontractor who has failed to maintain workers' compensation
coverage on its employees:
(1) May not claim the exemption from liability provided by
sections six and six-a of this article; and
(2) May be held liable to an injured employee pursuant to the
provisions of section eight of this article.
(d) If a claim of an injured employee of a subcontractor is
accepted or conditionally accepted into the Uninsured Employer Fund, both the prime contractor and subcontractor are jointly and
severally liable for any payments made by such fund, and the
Insurance Commissioner may seek recovery of such payments, plus
administrative costs and attorney's fees, from the prime
contractor, the subcontractor, or both: Provided, That a prime
contractor who is held liable pursuant to this subsection for the
payment of benefits to an injured employee of a subcontractor may
recover the amount of such payments from the subcontractor, plus
reasonable attorney's fee and costs.
(e) The Insurance Commissioner shall propose a rule, as
provided in section five, article two-c of this chapter,
implementing this section, and the provisions of this section shall
not be effective until such rule is adopted by the industrial
council and made effective: Provided, That the provisions of this
section in effect prior to the amendments thereto enacted in 2009
shall continue to be applicable to unpaid premiums due the old
fund, as provided in article two-c of this chapter. The rule
adopted pursuant to this subsection shall provide that a prime
contractor is only liable for the payment of benefits pursuant to
this section with respect to employees of subcontractors with which
the prime contractor is in privity.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations.
(a) Where a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured
worker or, if he or she is deceased or physically or mentally
incompetent, his or her dependents or personal representative are
entitled to compensation under the provisions of this chapter, and
shall not by having received compensation be precluded from making
claim against the third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or her
personal representative makes a claim against the third party and
recovers any sum for the claim:
(1) the commission With respect to any claim arising from a
right of action that arose or accrued, in whole or in part, on or
after January 1, 2006, the private carrier or
a self-insured
employer,
whichever is applicable, shall be allowed statutory
subrogation with regard to
indemnity and medical benefits paid as
of the date of the recovery.
(2) With respect to any claim arising from a right of action
that arose or accrued, in whole or in part, prior to January 1,
2006, the Insurance Commissioner and the successor to the
commission shall be allowed statutory subrogation with regard to
only medical payments paid as of the date of the recovery; and
(3) Notwithstanding the provisions of subdivisions (1) and (2)
of this subsection, the Insurance Commissioner, acting as
administrator of the Uninsured Employer Fund, shall be allowed statutory subrogation with regard to indemnity and medical benefits
paid and to be paid from such fund regardless of the date on which
the cause of action arose.
(c) The commission or self-insured employer The party entitled
to subrogation shall permit the deduction from the amount received
reasonable attorney's fees and reasonable costs
and may negotiate
the amount to accept as subrogation. It is the duty of the injured
worker, his or her dependents, his or her personal representative,
or his or her attorney to notify the commission and the employer,
when the claim is filed against the third party.
(c) (d) In the event that an injured worker, his or her
dependents or personal representative makes a claim against a third
party, there shall be, and there is hereby created, a statutory
subrogation lien upon the moneys received which shall exist in
favor of the
commission Insurance Commissioner, private carrier or
self-insured employer,
whichever is applicable. Any injured worker,
his or her dependents or personal representative who receives
moneys in settlement in any manner of a claim against a third party
remains subject to the subrogation lien until payment in full of
the amount permitted to be subrogated under subsection (b) of this
section is paid.
(e) (d) Effective January 1, two thousand six, the commission,
any successor to the commission, any other private carrier and any
self-insured employer shall be allowed statutory subrogation with regard to all medical and indemnity benefits actually paid as of
the date of the recovery, The commission, successor to the
commission, any other private carrier and the self-insured employer
shall permit the deduction from the amount received a reasonable
attorney's fees and costs, and may negotiate the amount to accept
as subrogation. It is the duty of the injured worker, his or her
dependents, his or her personal representative or his or her
attorney to give reasonable notice to the
commission, successor to
the commission, any other Insurance Commissioner, private carrier
or
the self-insured employer after a claim is filed against the
third party and prior to the disbursement of any third party
recovery. The statutory subrogation described in this section does
not apply to uninsured and underinsured motorist coverage or any
other insurance coverage purchased by the injured worker or on
behalf of the injured worker. If the injured worker obtains a
recovery from a third party and the injured worker, personal
representative or the injured worker's attorney fails to protect
the statutory right of subrogation created herein, the injured
worker, personal representative and the injured worker's attorney
shall lose the right to retain attorney fees and costs out of the
subrogation amount. In addition, such failure creates a cause of
action for the
Insurance Commissioner, private carrier or self-
insured employer,
whichever is applicable, against the injured
worker, personal representative and the injured worker's attorney for the amount of the full subrogation amount and the reasonable
fees and costs associated with any such cause of action.
The right
of subrogation granted by the provisions of this subsection shall
not attach to any claim arising from a right of action which arose
or accrued, in whole or in part, prior to the effective date of the
amendment and reenactment of this section during the year two
thousand five.
(e) The right of subrogation granted the commission in
subsections (a) through (c), inclusive, of this section shall be
exercised by the Insurance Commissioner and his or her designated
administrator of the old fund, as set forth in article two-c of
this chapter, for any claim arising from a right of action which
arose or accrued, in whole or in part, prior to the effective date
of the amendment and reenactment of this section during the year
two thousand five. The Insurance Commissioner and his or her
designated administrator shall be paid a recovery fee of ten
percent of the actual amount recovered through subrogation with the
remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-8. Workers' Compensation Uninsured Employer Fund.
(a) The Workers' Compensation 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)
Assessments. The Insurance Commissioner shall assess each
private carrier and may assess self-insured employers an amount to
be deposited in the fund. The assessment may be collected by each
private carrier from its policyholders 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 each of the groups subject to the assessment. After
allocating the amounts payable by each group, 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, if assessed, 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 groups assessed 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 or industrial
council may adopt rules for the establishment and administration of
the assessment methodologies, rates, payments and any penalties
that it determines are necessary to carry out the provisions of
this section.
(b)
Payments from the fund.
(1) Except as otherwise provided in this subsection, an
injured employee 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 such employee meets all
jurisdictional and entitlement provisions of this chapter, files a
claim with the Insurance Commissioner and makes an irrevocable
assignment to the Insurance Commissioner of a right to be
subrogated to the rights of the injured employee.
(2) Employees who are injured while employed by a self-insured
employer are ineligible for benefits from the Workers' Compensation
Uninsured Employer Fund.
(c)
Initial determination upon receipt of a claim.
(1) If the Insurance Commissioner determines that the
claimant's employer maintained a policy of workers' compensation
insurance pursuant to this chapter on the date of injury or last
exposure or that the employer was not required to maintain such a
policy on such date, then the claim shall not be accepted into the
fund; if the commissioner determines that the employer was required to maintain such a policy but failed to do so, the claim will be
accepted into the fund and the Insurance Commissioner may assign
such a claim to the third-party administrator of the fund for
administration.
(2) The Insurance Commissioner shall notify the injured
employee and the named employer of the determination made pursuant
to subdivision (1) of this subsection and any party aggrieved
thereby shall be entitled to protest such determination in a
hearing before the Insurance Commissioner: Provided, That in any
such proceeding, the employer has the burden of proving that it
either provided mandatory workers' compensation insurance coverage
or that it was not required to maintain workers' compensation
insurance. If a claim is filed against the Uninsured Employer Fund,
the Insurance Commissioner or his or her third party administrator
shall: (1) Accept the claim into the fund if it is determined that
the employer was required to maintain workers' compensation
coverage with respect to the injured worker but failed to do so;
(2) reject the claim if it is determined that the employer
maintained such coverage or was not required to do so; or (3) in a
claim involving the availability of benefits pursuant to section
one-d, article two of this chapter, either reject or conditionally
accept the claim. An aggrieved party may file a protest with the
office of judges to any decision by the Insurance Commissioner or
the third party administrator to accept or reject a claim into the fund, as well as to any claims decisions made with respect to any
claim accepted into the fund, and such protests shall be determined
in the same manner as disputed claims are determined pursuant to
the provisions of article five of this chapter: Provided, That in
any proceeding before the office of judges involving the decision
to accept or refuse to accept a claim into the fund, the employer
has the burden of proving that it either provided mandatory
workers' compensation insurance coverage or that it was not
required to do so.
(d)
Employer liability.
(1) Any employer who has failed to provide mandatory coverage
required by the provisions of this chapter is liable for all
payments made and to be made on its behalf, including any benefits,
administrative costs and attorney's fees paid from the fund or
incurred by the Insurance Commissioner, plus interest calculated in
accordance with the provisions of section thirteen, article two of
this chapter.
(2) The Insurance Commissioner:
(A) May bring a civil action in a court of competent
jurisdiction to recover from the employer the amounts set forth in
subdivision (1) of this subsection. In any such action, the
Insurance Commissioner may also recover the present value of the
estimated future payments to be made on the employer's behalf and
the administrative costs and attorney's fees attributable to such claim:
Provided, That the failure of the Insurance Commissioner to
include a claim for future payments shall not preclude one or more
subsequent actions for such amounts;
(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; and
(C) In lieu of a civil action, may enter into an agreement or
settlement regarding the collection of any liability of an
uninsured employer.
(3) In addition to any other liabilities provided in this
section, the Insurance Commissioner may impose an administrative
penalty of not more than $10,000 against an employer if the
employer fails to provide mandatory coverage required by this
chapter. All penalties and other moneys collected pursuant to this
section shall be deposited into the Workers' Compensation Uninsured
Employer Fund.
(e) Protests to claims decisions -- Any party aggrieved by a
claims decision made by the Insurance Commissioner or the third-
party administrator in a claim that has been accepted into the fund
may object to that decision by filing a protest with the office of
judges as set forth in article five of this chapter.
§23-2C-21. Limitation of liability of insurer or third-party
administrator; administrative fines are exclusive
remedies.
(a) No
cause of civil action may be brought or maintained by
an employee against a private carrier or a third-party
administrator, or any employee or agent of a private carrier or
third-party administrator, who violates any provision of this
chapter or chapter thirty-three of this code.
(b) Any administrative fines or remedies provided in this
chapter
or chapter thirty-three of this code or rules promulgated
by the Workers' Compensation Commission or the Insurance
Commissioner are the exclusive civil remedies for any violation of
this chapter committed by a private carrier or a third-party
administrator or any agent or employee of a private carrier or a
third-party administrator.
(c) Upon a determination by the office of judges that a denial
of compensability, a denial of an initial award of temporary total
disability or a denial of an authorization for medical benefits was
unreasonable, reasonable attorney's fees and the costs actually
incurred in the process of obtaining a reversal of the denial shall
be awarded to the claimant and paid by the
company, private carrier
or self-insured employer which issued the unreasonable denial. A
denial is unreasonable if, after submission by or on behalf of the
claimant, of evidence of the compensability of the claim, the
entitlement to initial temporary total disability benefits or
medical benefits, the
company, private carrier or self-insured
employer is unable to demonstrate that it had evidence or a legal basis supported by legal authority at the time of the denial which
is relevant and probative and supports the denial of the award or
authorization. Payment of attorney's fees and costs awarded under
this subsection will be made to the claimant at the conclusion of
litigation, including all appeals, of the claimant's protest of the
denial.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by
either a single incident of trauma or by exposure to hazardous
noise in the course of and resulting from employment, the degree of
permanent partial disability, if any, shall be determined in
accordance with the provisions of this section and awards made in
accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz shall be determined for the injured ear and
the total shall be divided by four to ascertain the average decibel
loss;
(2) The percent of monaural hearing impairment for the injured
ear shall be calculated by multiplying by one and six-tenths
percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of
one hundred percent hearing impairment, which maximum is reached at
ninety decibels; and
(3) The percent of monaural hearing impairment obtained shall
be multiplied by twenty-two and one-half to ascertain the degree of
permanent partial disability.
(c) The percent of permanent partial disability for a binaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz is determined for each ear and the total for
each ear shall be divided by four to ascertain the average decibel
loss for each ear;
(2) The percent of hearing impairment for each ear is
calculated by multiplying by one and six-tenths percent the
difference by which the aforementioned average decibel loss exceeds
twenty-seven and one-half decibels, up to a maximum of one hundred
percent hearing impairment, which maximum is reached at ninety
decibels;
(3) The percent of binaural hearing impairment shall be
calculated by multiplying the smaller percentage (better ear) by
five, adding this figure to the larger percentage (poorer ear) and
dividing the sum by six; and
(4) The percent of binaural hearing impairment obtained shall be multiplied by fifty-five to ascertain the degree of permanent
partial disability.
(d) No permanent partial disability benefits shall be granted
for tinnitus, psychogenic hearing loss, recruitment or hearing loss
above three thousand hertz.
(e) An additional amount of permanent partial disability shall
be granted for impairment of speech discrimination, if any, to
determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added
together and the result divided by two to calculate the average
percentage of speech discrimination, and the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination obtained. To determine the
additional amount for monaural impairment, the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination in the injured ear.
% of Speech Discrimination % of Permanent Partial
Disability
|
|
90% and up to and including 100% 0%
|
|
80% and up to but not including 90% 1%
|
|
70% and up to but not including 80% 3%
|
|
60% and up to but not including 70% 4%
|
|
0% and up to but not including 60% 5%
|
(f) No temporary total disability benefits shall be granted
for noise-induced hearing loss.
(g) An application for benefits alleging a noise-induced
hearing loss shall set forth the name of the employer or employers
and the time worked for each. The
commission shall Insurance
Commissioner may allocate to and divide any charges resulting from
the claim among the employers with whom the claimant sustained
exposure to hazardous noise for as much as sixty days during the
period of three years immediately preceding the date of last
exposure. The allocation is based upon the time of exposure with
each employer. In determining the allocation, the
commission
Insurance Commissioner shall consider all the time of employment by
each employer during which the claimant was exposed and not just
the time within the three-year period under the same allocation as
is applied in occupational pneumoconiosis cases.
(h) The
commission employer against whom the claim is filed
shall provide
consistent with current practice, for prompt referral
the claims for evaluation, for all medical reimbursement and for
prompt authorization of hearing enhancement devices.
(i) The provisions of this section and the amendments to
section six of this article insofar as applicable to permanent
partial disabilities for hearing loss are operative as to any claim
filed after thirty days from the effective date of this section.
(j) Effective upon termination of the commission, the
administrative duties governing hearing loss claims shall transfer
to the Insurance Commissioner.
§23-4-8d. Occupational pneumoconiosis claims never closed for
medical benefits.
Notwithstanding the provisions of subdivision (4), subsection
(a), section sixteen of this article, a request for medical
services, durable medical goods or other medical supplies in an
occupational pneumoconiosis claim may be made at any time.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The Insurance Commissioner, private carriers and self-
insured employers may determine all questions within their
jurisdiction. In matters arising under
subsection (c), section
eight, article two-c, and
under articles three and four of this
chapter, the Insurance Commissioner, private carriers and self-
insured employers shall promptly review and investigate all claims.
The parties to a claim are the claimant and, if applicable, the
claimant's dependants, and the employer, and with respect to claims
involving funds created in article two-c of this chapter for which
he or she has been designated the administrator, the Insurance
Commissioner. In claims in which the employer had coverage on the date of the injury or last exposure, the employer's carrier has
sole authority to act on the employer's behalf in all aspects
related to litigation of the claim. With regard to any issue which
is ready for a decision, the Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, shall
promptly send the decision to all parties, including the basis of
its decision. As soon as practicable after receipt of
the any
occupational pneumoconiosis or occupational disease claim
but in no
event later than the date of the initial decision on the claim or
any injury claim in which temporary total benefits are being
claimed, the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall send the claimant
a brochure approved by the Insurance Commissioner setting forth the
claims process.
(b) (1) Except with regard to interlocutory matters, upon
making any decision, upon making or refusing to make any award or
upon making any modification or change with respect to former
findings or orders, as provided by section sixteen, article four of
this chapter, the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall give notice, in
writing, to the parties to the claim of its action. The notice
shall state the time allowed for filing a protest to the finding.
The action of the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, is final unless the decision is protested within sixty days after the receipt of such
decision:
Provided, That this sixty-day period is applicable to
the following provisions of this chapter that provide for a
different time in which to file a protest: Subsection (d), section
eight-c, article four and subsection (a), section fifteen-b,
article four. unless Unless a protest is filed within the-sixty-
day period, the finding or action is final. This time limitation
is a condition of the right to litigate the finding or action and
hence jurisdictional. Any protest shall be filed with the office
of judges with a copy served upon the parties to the claim, and
other parties in accordance with the procedures set forth in
sections eight and nine of this article. An employer may protest
decisions incorporating findings made by the Occupational
Pneumoconiosis Board, decisions made by the Insurance Commissioner
acting as administrator of claims involving funds created in
article two-c of this chapter, or decisions entered pursuant to
subdivision (1), subsection (c), section seven-a, article four of
this chapter.
(2) (A) With respect to every application for benefits filed
on or after July 1, 2008, in which a decision to deny benefits is
protested and the
only controversy relating to compensability is
matter involves an issue as to whether the application was properly
filed as a new claim or a reopening of a previous claim, the party
that denied the application shall begin to make conditional payment of benefits and must promptly give notice to the office of judges
that another identifiable person may be liable. The office of
judges shall promptly order the appropriate persons be joined as
parties to the proceeding:
Provided, That at any time during a
proceeding in which conditional payments are being made in
accordance with the provisions of this subsection, the office of
judges may, pending final determination of the person properly
liable for payment of the claim, order that such conditional
payments of benefits be paid by another party.
(B) Any conditional payment made pursuant to paragraph (A) of
this subdivision shall not be deemed an admission or conclusive
finding of liability of the person making such payments. When the
administrative law judge has made a determination as to the party
properly liable for payment of the claim, he or she shall direct
any monetary adjustment or reimbursement between or among the
Insurance Commissioner, private carriers and self-insured employers
as is necessary.
(C) (c) The office of judges may direct that:
(i) (1) An application for benefits be designated as a
petition to reopen, effective as of the original date of filing;
(ii) (2) A petition to reopen be designated as an application
for benefits, effective as of the original date of filing; or
(iii) (3) An application for benefits or petition to reopen
filed with the Insurance Commissioner, private carrier or self-insured employer be designated as an application or petition to
reopen filed with another private carrier, self-insured employer or
Insurance Commissioner,
effective as of the original date of
filing.
(c) (d) Where an employer protests a written decision entered
pursuant to a finding of the Occupational Pneumoconiosis Board, a
decision on a claim made by the Insurance Commissioner acting as
the administrator of a fund created in article two-c of this
chapter, or decisions entered pursuant to subdivision (1),
subsection (c), section seven-a, article four of this chapter, 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 office of judges,
then the claimant in addition to reasonable traveling and other
expenses shall be reimbursed for loss of wages incurred by the
claimant in attending the hearing.
(d) (e) The Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, may amend, correct or
set aside any order or decision on any issue entered by it which,
at the time of issuance or any time after that, is discovered to be
defective or clearly erroneous or the result of mistake, clerical
error or fraud, or with respect to any order or decision denying
benefits, otherwise not supported by the evidence, but any protest
filed prior to entry of the amended decision is a protest from the amended decision unless and until the administrative law judge
before whom the matter is pending enters an order dismissing the
protest as moot in light of the amendment. Jurisdiction to issue
an amended decision pursuant to this subsection continues until the
expiration of two years from the date of a decision to which the
amendment is made unless the decision is sooner affected by an
action of an administrative law judge or other judicial officer or
body:
Provided, That corrective actions in the case of fraud may
be taken at any time.
§23-5-3. Refusal to reopen claim; notice; objection.
If it appears to the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, that an application filed under
section two of this article fails to disclose a progression or
aggravation in the claimant's condition, or some other fact or
facts which were not previously considered in its former findings
and which would entitle the claimant to greater benefits than the
claimant has already received, the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, shall, within a reasonable
time, notify the claimant and the employer that the application
fails to establish a prima facie cause for reopening the claim.
The notice shall be in writing stating the reasons for denial and
the time allowed for objection to the decision of the commission. The claimant may, within
thirty sixty days after receipt of the
notice, object in writing to the finding. Unless the objection is
filed within the
thirty-day sixty-day period, no objection shall be
allowed. This time limitation is a condition of the right to
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.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers
in default to workers' compensation funds;
injunctions against defaulting employers.
(a) Upon termination of the Workers' Compensation Commission,
all of the powers and authority previously conferred upon the
Workers' Compensation Commission pursuant to article two, chapter
twenty-three of this code, relating to employers in default to the
Workers' Compensation Fund, are hereby transferred to the Insurance
Commissioner and shall be applied by the commissioner to those
employers in default to the old fund or having liability to the
Uninsured Employers' Fund or who are in policy default or fail to
maintain mandatory workers' compensation coverage, all as defined
in article two-c, chapter twenty-three of this code.
(b) In any case in which an employer is in default to the old
fund or has liability to the Uninsured Employers Fund or who is in default on a policy or otherwise fails to maintain mandatory
workers' compensation coverage, all as defined in article two-c,
chapter twenty-three of this code, the commission may bring an
action in the circuit court of Kanawha County to enjoin the
employer from continuing to operate the employer's business:
Provided, That the commissioner may, in his or her sole discretion,
and as an alternative to this action pursuant to this subsection,
require the employer to file a bond, in the form prescribed by the
commissioner, with satisfactory surety in an amount not less than
one hundred fifty percent of the total payments, interest and
penalties due.
(c) In any action instituted pursuant to subsection (b) of
this section, the circuit court shall issue an injunction
prohibiting the employer from operating the employer's business, if
the Insurance Commissioner proves by a preponderance of the
evidence, that the employer is in default to the old fund or has
liability to the uninsured fund or is in policy default or has
otherwise failed to maintain mandatory workers' compensation
coverage.
(d) Notwithstanding any provision of this code to the
contrary, the commissioner shall have the authority to waive
penalty and interest accrued on moneys due the old fund. The
enactment of the provisions of this subsection shall be applied
retrospectively to January 1, 2006, and may not be construed to require the commissioner to adjust or otherwise modify any
agreements reached with regard to the payment of penalty or
interest since that date.
(e) Notwithstanding any provision of this code to the
contrary, the Insurance Commissioner may compromise and settle any
claims for moneys due to the Old Fund or the Uninsured Employer
Fund.
NOTE: The purpose of this bill is to make various changes to
accommodate the recent transition to a private workers'
compensation market.
§23-4-8d is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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