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West Virginia Legislature· HB 5515Signed

Relating to modernizing and updating workers’ compensation statutes., the official text

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WEST VIRGINIA LEGISLATURE

         2026 REGULAR SESSION

                   ENROLLED

            Committee Substitute
                         for

           House Bill 5515

      BY DELEGATES HALL, JEFFRIES, HOTT, AND ROHRBACH
         [Passed March 14, 2026; in effect 90 days from
                        passage (June 12, 2026)]
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1 AN ACT to amend and reenact §23-4-1a, §23-4-1b, §23-4-1c, §23-4-1d, §23-4-1e, §23-4-3, §23-

2   4-4, §23-4-5, §23-4-6, §23-4-6a, §23-4-6d, §23-4-7, §23-4-7a, §23-4-8a, §23-4-8b, §23-

3   4-8c, §23-4-9, §23-4-11, §23-4-12, §23-4-14, §23-4-15, §23-4-15a, §23-4-15b, §23-4-16,

4   §23-4-16a, §23-4-17, §23-4-18, §23-4-20, §23-4-23, §23-4-24, §23-4-25, §23-5-2, §23-5-

5   4, §23-5-7, §23-5-11a, and §23-5-14 of the Code of West Virginia, 1931, as amended;

6   and to repeal §23-4-3b, §23-4-3c, §23-4-22, §23-5-1, §23-5-3, §23-5-5, §23-5-6, §23-5-

7   8, §23-5-9, §23-5-10, §23-5-11, §23-5-12, §23-5-13, §23-5-15, and §23-5-16, relating to

8   modernizing and updating workers’ compensation statutes; removing or revising

9   provisions made obsolete by prior legislation and regulatory revisions; standardizing

10  references to public offices and agencies; updating and correcting provisions and statutory

11  citations; removing entitlement of employer to notice of a request for permanent total

12  disability, to respond to a request, to submit information, to have a claimant examined,

13  and to submit and obtain reports from experts; removing consideration of vocational

14  standards as it relates to disability benefits; removing notification requirement to an

15  employer prior to ordering autopsy; modifying Board of Review membership from five to

16  at least three but no more than five members; and clarifying provisions as to Board of

17  Review terms and votes on administrative matters.

    Be it enacted by the Legislature of West Virginia:

    ARTICLE 4. DISABILITY AND DEATH BENEFITS.

    §23-4-1a. Report of injuries by employee.

1   Every employee who sustains an injury subject to this chapter, or his or her representative,

2 shall immediately on the occurrence of the injury or as soon thereafter as practicable give or

3 cause to be given to the employer or any of the employer’s agents a written notice of the

4 occurrence of the injury stating in ordinary language the name and address of the employer, the

5 name and address of the employee, the time, place, nature, and cause of the injury, and whether

6 temporary total disability has resulted from the injury. The notice shall be given personally to the

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7 employer or any of the employer’s agents, or may be sent by certified mail addressed to the

8 employer at the employer’s last known residence or place of business.

   §23-4-1b. Report of injuries by employers.

1  It is the duty of every employer to report every injury sustained by any person in his or her

2 employ to its workers’ compensation insurance carrier or claims administrator, if applicable. The

3 report shall be on forms prescribed by the Insurance Commissioner and shall be made within five

4 days of the employer’s receipt of the employee’s notice of injury as required by §23-4-1a of this

5 code. The five-day period may not be extended by the employer’s workers’ compensation

6 insurance carrier or claims administrator, if applicable, but the employer has the right to file a

7 supplemental report at a later date. The employer’s report of injury shall include a statement as

8 to whether, on the basis of the information available, the employer disputes the compensability of

9 the injury or objects to the payment of temporary total disability benefits in connection with the

10 injury. The statements by the employer shall not prejudice the employer’s right thereafter to

11 contest the compensability of the injury, or to object to any subsequent finding or award, in

12 accordance with §23-5-1 et seq. of this code; but an employer’s failure to make timely report of

13 an injury as required in this section, or statements in the report to the effect that the employer

14 does not dispute the compensability of the injury or object to the payment of temporary total

15 disability benefits for the injury, shall be considered to be a waiver of the employer’s right to object

16 to any interim payment of temporary total disability benefits with respect to any period from the

17 date of injury to the date of receipt of any objection made to the interim payments by the employer.

   §23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of

   medical benefits; payments of benefits during protest; right of Insurance

   Commissioner, private carriers, and self-insured employers to collect payments

   improperly made.

1  (a) In any claim for benefits under this chapter, the Insurance Commissioner, private

2 carrier, or self-insured employer, whichever is applicable, shall determine whether the claimant

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3 has sustained a compensable injury within the meaning of §23-4-1 of this code and enter an order

4 giving all parties immediate notice of the decision.

5   (1) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

6 applicable, may enter an order conditionally approving the claimant’s application if it finds that

7 obtaining additional medical evidence or evaluations or other evidence related to the issue of

8 compensability would aid the Insurance Commissioner, private carrier, or self-insured employer

9 in making a correct final decision. Benefits shall be paid during the period of conditional approval;

10 however, if the final decision is one that rejects the claim, the payments shall be considered an

11 overpayment. The Insurance Commissioner, private carrier, or self-insured employer, whichever

12 is applicable, may only recover the amount of the overpayment as provided for in subsection (h)

13 of this section.

14  (2) In making a determination regarding the compensability of a newly filed claim or upon

15 a filing for the reopening of a prior claim pursuant to the provisions of §23-4-16 of this code based

16 upon an allegation of recurrence, reinjury, aggravation, or progression of the previous

17 compensable injury, or in the case of a filing of a request for any other benefits under the

18 provisions of this chapter, the Insurance Commissioner, private carrier, or self-insured employer,

19 whichever is applicable, shall consider the date of the filing of the claim for benefits for a

20 determination of the following:

21  (A) Whether the claimant had a scheduled shutdown beginning within one week of the

22 date of the filing;

23  (B) Whether the claimant received notice within 60 days of the filing that his or her

24 employment position was to be eliminated, including, but not limited to, the closure of the

25 claimant’s worksite, a layoff, or the elimination of the claimant’s employment position;

26  (C) Whether the claimant is receiving unemployment compensation benefits at the time of

27 the filing; or

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28  (D) Whether the claimant has received unemployment compensation benefits within 60

29 days of the filing.

30  In the event of an affirmative finding upon any of these four factors, the finding shall be

31 given probative weight in the overall determination of the compensability of the claim or of the

32 merits of the reopening request.

33  (3) Any party may object to the order of the Insurance Commissioner, private carrier, or

34 self-insured employer, whichever is applicable, and obtain an evidentiary hearing as provided in

35 §23-5-1a of this code: Provided, That if a private carrier or self-insured employer fails to timely

36 issue a ruling upon any application or motion as provided by law, or if the claimant files a timely

37 protest to the ruling of a private carrier or self-insured employer denying the compensability of the

38 claim, denying temporary total disability benefits, or denying medical authorization, the Board of

39 Review shall provide a hearing on the protest on an expedited basis as determined by rule of the

40 Board of Review.

41  (b) Where it appears from the employer’s report, or from proper medical evidence, that a

42 compensable injury will result in a disability which will last longer than three days as provided in

43 §23-4-5 of this code, the Insurance Commissioner, private carrier, or self-insured employer,

44 whichever is applicable, may immediately enter an order commencing the payment of temporary

45 total disability benefits to the claimant in the amounts provided for in §23-4-6 and §23-4-14 of this

46 code, and the payment of the expenses provided for in §23-4-3(a) of this code, relating to the

47 injury, without waiting for the expiration of the 30-day period during which objections may be filed

48 to the findings as provided in §23-5-1a of this code. The Insurance Commissioner, private carrier,

49 or self-insured employer, whichever is applicable, shall enter an order commencing the payment

50 of temporary total disability or medical benefits within 15 working days of receipt of either the

51 employee’s or employer’s report of injury, whichever is received sooner, and also upon receipt of

52 either a proper physician’s report or any information necessary for a determination. The Insurance

53 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall give the

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54 parties immediate notice of any order granting temporary total disability or medical benefits. When

55 an order granting temporary total disability benefits is made, the claimant’s return-to-work

56 potential shall be assessed. The Insurance Commissioner, private carrier, or self-insured

57 employer, whichever is applicable, may schedule medical and vocational evaluation of the

58 claimant and assign appropriate personnel to expedite the claimant’s return to work as soon as

59 reasonably possible.

60  (c) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

61 applicable, may enter orders granting temporary total disability benefits upon receipt of medical

62 evidence justifying the payment of the benefits. The Insurance Commissioner, private carrier, or

63 self-insured employer, whichever is applicable, may not enter an order granting prospective

64 temporary total disability benefits for a period of more than 90 days: Provided, That when the

65 Insurance Commissioner, private carrier, or self-insured employer determines that the claimant

66 remains disabled beyond the period specified in the prior order granting temporary total disability

67 benefits, the Insurance Commissioner, private carrier, or self-insured employer shall enter an

68 order continuing the payment of temporary total disability benefits for an additional period not to

69 exceed 90 days and shall give immediate notice to all parties of the decision.

70  (d) Upon receipt of the first report of injury in a claim, the Insurance Commissioner, private

71 carrier, or self-insured employer, whichever is applicable, shall request from the employer or

72 employers any wage information necessary for determining the rate of benefits to which the

73 employee is entitled. If an employer does not furnish this information within 15 days from the date

74 the Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable,

75 received the first report of injury in the case, the employee shall be paid temporary total disability

76 benefits for lost time at the rate the Insurance Commissioner obtains from reports made pursuant

77 to §23-2-2(b) of this code. If no wages have been reported, the Insurance Commissioner, private

78 carrier, or self-insured employer, whichever is applicable, shall make the payments at the rate the

79 Insurance Commissioner, private carrier, or self-insured employer finds would be justified by the

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80 usual rate of pay for the occupation of the injured employee. The rate of benefits shall be adjusted

81 both retroactively and prospectively upon receipt of proper wage information. The Insurance

82 Commissioner shall have access to all wage information in the possession of any state agency.

83  (e) Subject to the limitations set forth in §23-4-16 of this code, upon a finding of the

84 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, that

85 a claimant who has sustained a previous compensable injury which has been closed by order, or

86 by the claimant’s return to work, suffers further temporary total disability or requires further

87 medical or hospital treatment resulting from the compensable injury, payment of temporary total

88 disability benefits to the claimant in the amount provided for in §23-4-6 and §23-4-14 of this code,

89 including the expenses provided for in §23-4-3(a) of this code, shall immediately commence

90 relating to the disability, without waiting for the expiration of the 30-day period during which

91 objections may be filed. Immediate notice to the parties of the decision shall be given.

92  (f) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

93 applicable, shall deliver amounts due for temporary total disability benefits directly to the claimant.

94  (g) Where the employer has elected to carry its own risk under §23-2-9 of this code, and

95 upon the findings aforesaid, the self-insured employer shall immediately pay the amounts due the

96 claimant for temporary total disability benefits. A copy of the notice shall be sent to the claimant.

97  (h) In the event that an employer files a timely objection to any order of the Insurance

98 Commissioner, private carrier, or self-insured employer, whichever is applicable, with respect to

99 compensability, or any order denying an application for modification with respect to temporary

100 total disability benefits, or with respect to those expenses outlined in §23-4-3(a) of this code, the

101 Insurance Commissioner, private carrier, or self-insured employer shall continue to pay to the

102 claimant such benefits and expenses during the period of such disability. When the employer has

103 protested the compensability or applied for modification of a temporary total disability benefit

104 award or expenses and the final decision in that case determines that the claimant was not entitled

105 to the benefits or expenses, the disputed amount of benefits or expenses is considered an

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106 overpayment. The Insurance Commissioner, private carrier, or self-insured employer, whichever

107 is applicable, may recover the overpayment by withholding, in whole or in part, future benefits

108 payable to the individual in the same or other claims and credit the amount against the

109 overpayment until it is repaid in full.

110  (i) In the event that the Insurance Commissioner, private carrier, or self-insured employer,

111 whichever is applicable, finds that, based upon the employer’s report of injury, the claim is not

112 compensable, the Insurance Commissioner, private carrier, or self-insured employer shall provide

113 a copy of the employer’s report to the claimant in addition to the order denying the claim.

114  (j) If a claimant is receiving benefits paid through a wage replacement plan, salary

115 continuation plan, or other benefit plan provided by the employer to which the employee has not

116 contributed, and that plan does not provide an offset for temporary total disability benefits to which

117 the claimant is also entitled under this chapter as a result of the same injury or disease, the

118 employer shall notify the Insurance Commissioner, private carrier, or self-insured employer,

119 whichever is applicable, of the duplication of the benefits paid to the claimant. Upon receipt of the

120 notice, the Insurance Commissioner, private carrier, or self-insured employer, whichever is

121 applicable, shall reduce the temporary total disability benefits provided under this chapter by an

122 amount sufficient to ensure that the claimant does not receive monthly benefits in excess of the

123 amount provided by the employer’s plan or the temporary total disability benefit, whichever is

124 greater: Provided, That this subsection does not apply to benefits being paid under the terms and

125 conditions of a collective bargaining agreement.

     §23-4-1d. Method and time of payments for permanent disability.

1    (a) If the Insurance Commissioner, private carrier, or self-insured employer, whichever is

2 applicable, makes an award for permanent partial or permanent total disability, the Insurance

3 Commissioner, private carrier, or self-insured employer shall start payment of benefits by mailing

4 or delivering the amount due directly to the employee within 15 working days from the date of the

5 award: Provided, That the Insurance Commissioner, private carrier, or self-insured employer may

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6 withhold payment of the portion of the award that is the subject of subsection (b) of this section

7 until 77 days have expired without an objection being filed.

8          (b) When the Insurance Commissioner, private carrier, self-insured employer, or the

9 Workers’ Compensation Board of Review, whichever is applicable, enters an order or provides

10 notice granting the claimant a permanent total disability award and an objection or petition for

11 appeal is filed, payment of monthly permanent total disability benefits shall begin. However, any

12 payment for a back period of benefits from the onset date of total permanent disability to the date

13 of the award shall be limited to a period of 12 months of benefits. If, after all litigation is completed

14 and the time for the filing of any further objections or appeals to the award has expired and the

15 award of permanent total disability benefits is upheld, the claimant shall receive the remainder of

16 benefits due to him or her based upon the onset date of permanent total disability that was finally

17 determined.

18         (c) If the claimant is owed any additional payment of back permanent total disability

19 benefits, the Insurance Commissioner, private carrier, or self-insured employer, whichever is

20 applicable, shall not only pay the claimant the sum owed but shall also add thereto interest at the

21 simple rate of six percent per annum from the date of the initial award granting the total permanent

22 disability to the date of the final order upholding the award. In the event that an intermediate order

23 directed an earlier onset date of permanent total disability than was found in the initial award, the

24 interest-earning period for that additional period shall begin upon the date of the intermediate

25 award.

26         (d) If a timely protest to the award is filed, as provided in §23-5-1a or §23-5-9a of this code,

27 benefits shall continue to be paid to the claimant during the period of the disability unless it is

28 subsequently found that the claimant was not entitled to receive the benefits or any part thereof.

29 If the final decision in any case determines that a claimant was not lawfully entitled to benefits

30 paid to him or her pursuant to a prior decision, the amount of benefits paid shall be considered an

31 overpayment and the Insurance Commissioner, private carrier, or self-insured employer,

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32 whichever is applicable, may only recover that amount by withholding, in whole or in part, future

33 benefits payable to the individual in the same or other claims and credit the amount against the

34 overpayment until it is repaid in full.

35  (e) An award for permanent partial disability shall be made as expeditiously as possible

36 and in accordance with the time frame requirements promulgated by rule of the Insurance

37 Commissioner.

38  (f) If a claimant is receiving benefits paid through a retirement plan, wage replacement

39 plan, salary continuation plan, or other benefit plan provided by the employer to which the

40 employee has not contributed, and that plan does not provide an offset for permanent total

41 disability benefits to which the claimant is also entitled under this chapter as a result of the same

42 injury or disease, the employer shall notify the Insurance Commissioner, private carrier, or self-

43 insured employer, whichever is applicable, of the duplication of the benefits paid to the claimant.

44 Upon receipt of the notice, the Insurance Commissioner, private carrier, or self-insured employer,

45 whichever is applicable, shall reduce the permanent total disability benefits provided under this

46 chapter by an amount sufficient to ensure that the claimant does not receive monthly benefits in

47 excess of the amount provided by the employer’s plan or the permanent total disability benefit,

48 whichever is greater: Provided, That this subsection does not apply to benefits being paid under

49 the terms and conditions of a collective bargaining agreement.

    §23-4-1e. Temporary total disability benefits not to be paid for periods of correctional

    center or jail confinement; denial of workers’ compensation benefits for injuries or

    disease incurred while confined.

1   (a) Notwithstanding any provision of this code to the contrary, no person shall be

2 jurisdictionally entitled to temporary total disability benefits for that period of time in excess of

3 three days during which that person is confined in a state correctional facility or jail: Provided,

4 That confinement shall not affect the claimant’s eligibility for payment of expenses: Provided,

5 however, That this subsection is applicable only to injuries and diseases incurred prior to any

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6 period of confinement. Upon release from confinement, the payment of benefits for the remaining

7 period of temporary total disability shall be made if justified by the evidence and authorized by

8 order of the Insurance Commissioner, private carrier, or self-insured employer, whichever is

9 applicable.

10  (b) Notwithstanding any provision of this code to the contrary, no person confined in a

11 state correctional facility or jail who suffers injury or a disease in the course of and resulting from

12 his or her work during the period of confinement which work is imposed by the administration of

13 the state correctional facility or jail and is not suffered during the person’s usual employment with

14 his or her usual employer when not confined shall receive benefits under the provisions of this

15 chapter for the injury or disease: Provided, That individuals otherwise confined in a state

16 correctional facility or jail, or at a juvenile services facility, and working in a program authorized

17 by §25-7-14 or §25-7-16 of this code, shall be eligible to receive benefits under the provisions of

18 this chapter while working in an authorized program. The coverage for benefits may be obtained

19 either by the private entity or by agreement with the state agency as specified in §25-7-14(a)(5)

20 and §25-7-16(a)(5) of this code.

    §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

    program; payments; interlocutory orders.

1   (a) The Insurance Commissioner shall establish and alter from time to time, as he or she

2 determines appropriate, a schedule of the maximum reasonable amounts to be paid to health

3 care providers, providers of rehabilitation services, providers of durable medical and other goods,

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4 providers of other supplies and medically related items, or other persons, firms, or corporations

5 for the rendering of treatment or services to injured employees under this chapter.

6   The Insurance Commissioner, private carrier, or self-insured employer, whichever is

7 applicable, shall disburse and pay for personal injuries to the employees who are entitled to the

8 benefits under this chapter as follows:

9   (1) Sums for health care services, rehabilitation services, durable medical and other goods

10 and other supplies, and medically related items as may be reasonably required. The Insurance

11 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall determine

12 that which is reasonably required within the meaning of this section in accordance with the medical

13 management rule established by the Insurance Commissioner and approved by the Workers’

14 Compensation Industrial Council pursuant to §23-2C-5 of this code. Each health care provider

15 who seeks to provide services or treatment which are not within any guideline set forth in the rule

16 shall submit to the Insurance Commissioner, private carrier, or self-insured employer, whichever

17 is applicable, specific justification for the need for the additional services in the particular case

18 and the Insurance Commissioner, private carrier, or self-insured employer shall have the

19 justification reviewed by a health care professional before authorizing the additional services. The

20 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, may

21 enter into preferred provider and managed care agreements which provides for fees and other

22 payments which deviate from the schedule set forth in this subsection.

23  (2) Payment for health care services, rehabilitation services, durable medical and other

24 goods and other supplies, and medically related items authorized under this subsection may be

25 made to the injured employee or to the person, firm, or corporation who or which has rendered

26 the treatment or furnished health care services, rehabilitation services, durable medical or other

27 goods or other supplies and items, or who has advanced payment for them, as the Insurance

28 Commissioner, private carrier, or self-insured employer, whichever is applicable, considers

29 proper, but no payments shall be made unless duly verified statements have been filed within six

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30 months after the rendering of the treatment or the delivery of such goods, supplies, or items or

31 within 90 days of a subsequent compensability ruling if a claim is initially rejected: Provided, That

32 no payment under this section shall be made unless a verified statement shows a charge for the

33 treatment or with respect to any of the items specified in this subdivision has been or will be made

34 against the injured employee or any other person, firm, or corporation. When an employee

35 covered under the provisions of this chapter is injured in the course of and as a result of his or

36 her employment and is accepted for health care services, rehabilitation services, or the provision

37 of durable medical or other goods or other supplies or medically related items, the person, firm,

38 or corporation rendering the treatment may not make any charge or charges for the treatment or

39 with respect to the treatment against the injured employee or any other person, firm, or corporation

40 which would result in a total charge for the treatment rendered in excess of the maximum amount

41 in the fee schedule set forth in this subsection.

42  (3) Any pharmacist filling a prescription for medication for a workers’ compensation

43 claimant shall dispense a generic brand of the prescribed medication if a generic brand exists. If

44 a generic brand does not exist, the pharmacist may dispense the name brand. In the event that a

45 claimant wishes to receive the name brand medication in lieu of the generic brand, the claimant

46 may receive the name brand medication but, in that event, the claimant is personally liable for the

47 difference in costs between the generic brand medication and the brand name medication.

48  (4) If a claimant elects to receive health care services for a compensable injury from an

49 out-of-state health care provider, and the out-of-state health care provider refuses to accept the

50 rate of reimbursement set forth in the fee schedule established by the Insurance Commissioner,

51 the claimant is personally liable for the difference between the scheduled fee and the amount

52 demanded by the out-of-state health care provider, except as provided in paragraphs (A) or (B)

53 of this subdivision.

54  (A) In the event of an emergency where there is an urgent need for immediate medical

55 attention in order to prevent the death of a claimant or to prevent serious and permanent harm to

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56 the claimant, if the claimant receives the emergency care from an out-of-state health care provider

57 who refuses to accept as full payment the scheduled amount, the claimant is not personally liable

58 for the difference between the amount scheduled and the amount demanded by the health care

59 provider. Upon the claimant’s attaining a stable medical condition and being able to be transferred

60 to either a West Virginia health care provider or an out-of-state health care provider who has

61 agreed to accept the scheduled amount of fees as payment in full, if the claimant refuses to seek

62 the specified alternative health care providers, he or she is personally liable for the difference in

63 costs between the scheduled amount and the amount demanded by the health care provider for

64 services provided after attaining stability and being able to be transferred.

65  (B) In the event that there is no health care provider reasonably near to the claimant’s

66 home who is qualified to provide the claimant’s needed medical services who is either located in

67 the State of West Virginia or who has agreed to accept as payment in full the scheduled amounts

68 of fees, the Insurance Commissioner, private carrier, or self-insured employer, whichever is

69 applicable, upon application by the claimant, may authorize the claimant to receive medical

70 services from another health care provider. The claimant is not personally liable for the difference

71 in costs between the scheduled amount and the amount demanded by the health care provider.

72  (b)(1) No employer shall enter into any contracts with any hospital, its physicians, officers,

73 agents, or employees to render medical, dental, or hospital service or to give medical or surgical

74 attention to any employee for injury compensable within the purview of this chapter and no

75 employer shall permit or require any employee to contribute, directly or indirectly, to any fund for

76 the payment of such medical, surgical, dental, or hospital service within such hospital for the

77 compensable injury. Any employer violating this subsection is liable in damages to the employer’s

78 employees as provided in §23-2-8 of this code, and any employer or hospital or agent or employee

79 thereof violating the provisions of this section is guilty of a misdemeanor and, upon conviction

80 thereof, shall be punished by a fine not less than $100 nor more than $1,000 or by imprisonment

81 not exceeding one year, or both.

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82   (2) The provisions of this subsection shall not prohibit an employer, private carrier, or self-

83 insured employer from participating in a managed health care plan, including, but not limited to,

84 a preferred provider organization or program or a health maintenance organization or managed

85 care organization or other medical cost containment relationship with the providers of medical,

86 hospital, or other health care. An employer, private carrier, or self-insured employer that provides

87 a managed health care plan approved by the Insurance Commissioner for its employees or the

88 employees of its insured may require an injured employee to use health care providers authorized

89 by the managed health care plan for care and treatment of his or her compensable injuries. If the

90 employer, private carrier, or self-insured employer does not provide a managed health care plan

91 or program, the claimant may select his or her initial health care provider for treatment of a

92 compensable injury or disease. If a claimant wishes to change his or her health care provider and

93 if his or her employer has established and maintains a managed health care plan, the claimant

94 shall select a new health care provider through the managed health care plan. A claimant who

95 has used the providers under the employer’s managed health care plan may select a health care

96 provider outside the employer’s plan for treatment of the compensable injury or disease if the

97 employee receives written approval from the Insurance Commissioner, private carrier, or self-

98 insured employer, whichever is applicable, to do so.

99   (c) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

100 applicable, shall provide for the replacement of artificial limbs, crutches, hearing aids, eyeglasses,

101 and all other mechanical appliances provided in accordance with this section which later wear

102 out, or which later need to be refitted because of the progression of the injury which caused the

103 devices to be originally furnished, or which are broken in the course of and as a result of the

104 employee’s employment. The Insurance Commissioner, private carrier, or self-insured employer,

105 whichever is applicable, shall pay for these devices, when needed, notwithstanding any time limits

106 provided by law.

107

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108  (d) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

109 applicable, may engage in and contract for medical cost containment programs, pharmacy

110 benefits management programs, medical case management programs, and utilization review

111 programs. Payments for these programs shall be made from the Workers’ Compensation Old

112 Fund, by the private carrier, or by the self-insured employer, whichever is applicable. Any order

113 issued pursuant to the program shall be interlocutory in nature until an objecting party has

114 exhausted all review processes provided for by the Insurance Commissioner, private carrier, or

115 self-insured employer, whichever is applicable.

116  (e) Notwithstanding the provisions of this section, the Insurance Commissioner, private

117 carrier, or self-insured employer may establish fee schedules, make payments, and take other

118 actions required or allowed pursuant to §16-29D-1 et seq. of this code.

     §23-4-3b. Creation of health care advisory panel.

1    [Repealed.]

     §23-4-3c. Suspension or termination of providers of health care.

1    [Repealed.]

     §23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties.

1    (a) In case the personal injury causes death, reasonable funeral or cemetery expense, in

2 an amount to be fixed, from time to time, by the Insurance Commissioner, shall be paid by the

3 Insurance Commissioner, the private carrier, or self-insured employer, whichever is applicable, to

4 persons who have furnished the services and supplies, or to the persons who have advanced

5 payment for the services and supplies, in addition to any award made to the employee’s

6 dependents.

7    (b) A funeral director or any person who furnished the services and supplies associated

8 with the funeral or cemetery expenses, or a person who has advanced payment for the services

9 and supplies, is prohibited from making any charge or charges against the employee’s

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10 dependents for funeral expenses which would result in a total charge for funeral expenses in

11 excess of the amount fixed by the Insurance Commissioner, unless:

12  (1) The person seeking funeral expenses notifies, in writing and prior to the rendering of

13 any service, the employee’s dependent as to the exact cost of the service and the exact amount

14 the employee’s dependent would be responsible for paying in excess of the amount fixed by the

15 Insurance Commissioner; and

16  (2) The person seeking funeral expenses secures, in writing and prior to the rendering of

17 any service, consent from the employee’s dependent that he or she will be responsible to make

18 payment for the amount in excess of the amount fixed by the Insurance Commissioner.

19  (c) Any person who knowingly and willfully seeks or receives payment of funeral expenses

20 in excess of the amount fixed by the Insurance Commissioner without satisfying both of the

21 requirements of subsection (b) of this section is guilty of a misdemeanor and, upon conviction

22 thereof, shall be fined $3,000 or confined in jail for a definite term of confinement of 12 months,

23 or both.

    §23-4-5. Benefits for first three days after injury.

1   If the period of disability does not last longer than three days from the day the employee

2 leaves work as the result of the injury, no award shall be allowed, except the disbursements or

3 payments provided for in §23-4-6 and §23-4-6a of this code, but if the period of disability lasts

4 longer than seven days from the day the employee leaves work as a result of the injury, an award

5 shall be allowed for the first three days of such disability.

    §23-4-6. Classification of and criteria for disability benefits.

1   Where compensation is due an employee under the provisions of this chapter for personal

2 injury, the compensation shall be as provided in the following schedule:

3   (a) The terms "average weekly wage earnings, wherever earned, of the injured employee,

4 at the date of injury" and "average weekly wage in West Virginia", as used in this chapter, have

5 the meaning and shall be computed as set forth in §23-4-14 of this code except for the purpose

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6 of computing temporary total disability benefits for part-time employees pursuant to the provisions

7 of §23-4-6d of this code.

8   (b) For all awards made on and after the effective date of the amendment and reenactment

9 of this section during the year 2003, if the injury causes temporary total disability, the employee

10 shall receive during the continuance of the disability a maximum weekly benefit to be computed

11 on the basis of 66 and two-thirds percent of the average weekly wage earnings, wherever earned,

12 of the injured employee, at the date of injury, not to exceed 100 percent of the average weekly

13 wage in West Virginia: Provided, That in no event shall an award for temporary total disability be

14 subject to annual adjustments resulting from changes in the average weekly wage in West

15 Virginia: Provided, however, That in the case of a claimant whose award was granted prior to the

16 effective date of the amendment and reenactment of this section during the year 2003, the

17 maximum benefit rate shall be the rate applied under the prior enactment of this subsection which

18 was in effect at the time the injury occurred. The minimum weekly benefits paid under this

19 subdivision shall not be less than 33 and one-third percent of the average weekly wage in West

20 Virginia, except as provided in §23-4-6d and §23-4-9 of this code. In no event, however, shall the

21 minimum weekly benefits exceed the level of benefits determined by use of the applicable federal

22 minimum hourly wage: Provided further, That any claimant receiving permanent total disability

23 benefits, permanent partial disability benefits, or dependents’ benefits prior to July 1, 1994, shall

24 not have his or her benefits reduced based upon the requirement in this subdivision that the

25 minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.

26  (c) Subdivision (b) of this section is limited as follows: Aggregate award for a single injury

27 causing temporary disability shall be for a period not exceeding 208 weeks; aggregate award for

28 a single injury for which an award of temporary total disability benefits is made on or after the

29 effective date of the amendment and reenactment of this section in the year 2003 shall be for a

30 period not exceeding 104 weeks. Notwithstanding any other provision of this subdivision to the

31 contrary, no person may receive temporary total disability benefits under an award for a single

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32 injury for a period exceeding 104 weeks from the effective date of the amendment and

33 reenactment of this section in the year 2003.

34  (d) For all awards of permanent total disability benefits that are made on or after February

35 2, 1995, including those claims in which a request for an award was pending before the former

36 workers’ compensation division of the Bureau of Employment Programs or which were in litigation

37 but not yet submitted for a decision, then benefits shall be payable until the claimant attains the

38 age necessary to receive federal old age retirement benefits under the provisions of the Social

39 Security Act, 42 U.S.C. §§ 401 and 402, in effect on the effective date of this section. The claimant

40 shall be paid benefits so as not to exceed a maximum benefit of 66 and two-thirds percent of the

41 claimant’s average weekly wage earnings, wherever earned, at the time of the date of injury not

42 to exceed 100 percent of the average weekly wage in West Virginia. The minimum weekly benefits

43 paid under this section shall be as is provided for in subdivision (b) of this section. In all claims in

44 which an award for permanent total disability benefits was made prior to February 2, 1995, the

45 awards shall continue to be paid at the rate in effect prior to the effective date of the amendment

46 and reenactment of this section in the year 2003. A single or aggregate permanent disability of

47 85 percent or more entitles the employee to a rebuttable presumption of a permanent total

48 disability for the purpose of paragraph (2), subdivision (n) of this section: Provided, That the

49 claimant must also be at least 50 percent medically impaired upon a whole body basis or has

50 sustained a 35 percent statutory disability pursuant to the provisions of subdivision (f) of this

51 section. The presumption may be rebutted if the evidence establishes that the claimant is not

52 permanently and totally disabled pursuant to subdivision (n) of this section. Under no

53 circumstances may the Insurance Commissioner, private carrier, or self-insured employer,

54 whichever is applicable, grant an additional permanent disability award to a claimant receiving a

55 permanent total disability award: Provided, however, That if any claimant thereafter sustains

56 another compensable injury and has permanent partial disability resulting from the injury, the total

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57 permanent disability award benefit rate shall be computed at the highest benefit rate justified by

58 any of the compensable injuries.

59  (e)(1) For all awards made on or after the effective date of the amendment and

60 reenactment of this section during the year 2003, if the injury causes permanent disability less

61 than permanent total disability, the percentage of disability to total disability shall be determined

62 and the award computed on the basis of four weeks’ compensation for each percent of disability

63 determined at the maximum or minimum benefit rates as follows: 66 and two-thirds percent of the

64 average weekly wage earnings, wherever earned, of the injured employee at the date of injury,

65 not to exceed 70 percent of the average weekly wage in West Virginia: Provided, That in no event

66 shall an award for permanent partial disability be subject to annual adjustments resulting from

67 changes in the average weekly wage in West Virginia: Provided, however, That in the case of a

68 claimant whose award was granted prior to the effective date of the amendment and reenactment

69 of this section during the year 2003, the maximum benefit rate shall be the rate applied under the

70 prior enactment of this section which was in effect at the time the injury occurred.

71  (2) If a claimant is released by his or her treating physician to return to work at the job he

72 or she held before the occupational injury occurred and if the claimant’s preinjury employer does

73 not offer the preinjury job or a comparable job to the employee when a position is available to be

74 offered, the award for the percentage of partial disability shall be computed on the basis of six

75 weeks of compensation for each percent of disability.

76  (3) The minimum weekly benefit under this subdivision shall be as provided in subdivision

77 (b) of this section for temporary total disability.

78  (f) If the injury results in the total loss by severance of any of the members named in this

79 subdivision, the percentage of disability shall be determined by the percentage of disability,

80 specified in the following table:

81  The loss of a great toe shall be considered a 10 percent disability.

82  The loss of a great toe (one phalanx) shall be considered a five percent disability.

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83   The loss of other toes shall be considered a four percent disability.

84   The loss of other toes (one phalanx) shall be considered a two percent disability.

85   The loss of all toes shall be considered a 25 percent disability.

86   The loss of forepart of foot shall be considered a 30 percent disability.

87   The loss of a foot shall be considered a 35 percent disability.

88   The loss of a leg shall be considered a 45 percent disability.

89   The loss of thigh shall be considered a 50 percent disability.

90   The loss of thigh at hip joint shall be considered a 60 percent disability.

91   The loss of a little or fourth finger (one phalanx) shall be considered a three percent

92 disability.

93   The loss of a little or fourth finger shall be considered a five percent disability.

94   The loss of ring or third finger (one phalanx) shall be considered a three percent disability.

95   The loss of ring or third finger shall be considered a five percent disability.

96   The loss of middle or second finger (one phalanx) shall be considered a three percent

97 disability.

98   The loss of middle or second finger shall be considered a seven percent disability.

99   The loss of index or first finger (one phalanx) shall be considered a six percent disability.

100  The loss of index or first finger shall be considered a 10 percent disability.

101  The loss of thumb (one phalanx) shall be considered a 12 percent disability.

102  The loss of thumb shall be considered a 20 percent disability.

103  The loss of thumb and index fingers shall be considered a 32 percent disability.

104  The loss of index and middle fingers shall be considered a 20 percent disability.

105  The loss of middle and ring fingers shall be considered a 15 percent disability.

106  The loss of ring and little fingers shall be considered a 10 percent disability.

107  The loss of thumb, index and middle fingers shall be considered a 40 percent disability.

108  The loss of index, middle and ring fingers shall be considered a 30 percent disability.

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109  The loss of middle, ring and little fingers shall be considered a 20 percent disability.

110  The loss of four fingers shall be considered a 32 percent disability.

111  The loss of hand shall be considered a 50 percent disability.

112  The loss of forearm shall be considered a 55 percent disability.

113  The loss of arm shall be considered a 60 percent disability.

114  The total and irrecoverable loss of the sight of one eye shall be considered a 33 percent

115 disability. For the partial loss of vision in one or both eyes, the percentages of disability shall be

116 determined by the Insurance Commissioner, private carrier, or self-insured employer, whichever

117 is applicable, using as a basis the total loss of one eye.

118  The total and irrecoverable loss of the hearing of one ear shall be considered a 22 and

119 one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be

120 considered a 55 percent disability.

121  For the partial loss of hearing in one or both ears, the percentage of disability shall be

122 determined by the Insurance Commissioner, private carrier, or self-insured employer, whichever

123 is applicable, using as a basis the total loss of hearing in both ears.

124  If a claimant sustains a compensable injury which results in the total loss by severance of

125 any of the bodily members named in this subdivision or dies from sickness or noncompensable

126 injury before the Insurance Commissioner, private carrier, or self-insured employer, whichever is

127 applicable, makes the proper award for the injury, the Insurance Commissioner, private carrier,

128 or self-insured employer shall make the award to the claimant’s dependents as defined in this

129 chapter, if any; the payment to be made in the same installments that would have been paid to

130 claimant if living: Provided, That no payment shall be made to any surviving spouse of the claimant

131 after his or her remarriage and that this liability shall not accrue to the estate of the claimant and

132 is not subject to any debts of, or charges against, the estate.

133  (g) If a claimant to whom has been made a permanent partial award dies from sickness

134 or noncompensable injury, the unpaid balance of the award shall be paid to claimant’s dependents

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135 as defined in this chapter, if any; the payment to be made in the same installments that would

136 have been paid to claimant if living: Provided, That no payment shall be made to any surviving

137 spouse of the claimant after his or her remarriage, and that this liability shall not accrue to the

138 estate of the claimant and is not subject to any debts of, or charges against, such estate.

139  (h) For the purposes of this chapter, a finding of the Occupational Pneumoconiosis Board

140 has the force and effect of an award.

141  (i) For the purposes of this chapter, with the exception of those injuries provided for in

142 subdivision (f) of this section and §23-4-6b of this code, the degree of permanent disability other

143 than permanent total disability shall be determined exclusively by the degree of whole body

144 medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f)

145 of this section and §23-4-6b of this code, the degree of disability shall be determined exclusively

146 by the provisions of said subdivision and said section. The Occupational Pneumoconiosis Board

147 created pursuant to §23-4-8a of this code shall premise its decisions on the degree of pulmonary

148 function impairment that claimants suffer solely upon whole body medical impairment. The

149 Insurance Commissioner shall adopt standards for the evaluation of claimants and the

150 determination of a claimant’s degree of whole body medical impairment. Once the degree of

151 medical impairment has been determined, that degree of impairment shall be the degree of

152 permanent partial disability that shall be awarded to the claimant. This subdivision is applicable

153 to all injuries incurred and diseases with a date of last exposure on or after February 2, 1995, to

154 all applications for an award of permanent partial disability made on and after that date and to all

155 applications for an award of permanent partial disability that were pending before the former

156 workers’ compensation commission or pending in litigation but not yet submitted for decision on

157 and after that date. The prior provisions of this subdivision remain in effect for all other claims.

158  (j) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

159 applicable, shall establish a reviewing body to review applications for permanent total disability.

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160 The reviewing bodies shall employ or otherwise engage adequate resources, including medical

161 professionals.

162  (1) The Insurance Commissioner shall establish requirements for the proper completion

163 and support for an application for permanent total disability benefits, and no issue of permanent

164 total disability may be referred to a reviewing body unless a properly completed and supported

165 application for permanent total disability benefits has been first filed. Prior to a reviewing body’s

166 adjudication of a permanent total disability application, the reviewing body shall conduct

167 examinations of the claimant that it finds necessary and obtain all pertinent records concerning

168 the claimant’s medical history and reports of examinations. The claimant may furnish all pertinent

169 information to the reviewing body and shall furnish to the reviewing body any information

170 requested. The claimant may submit no more than one report and opinion regarding each issue

171 present in a claim. The reviewing body may request that those persons who have furnished

172 reports and opinions regarding a claimant provide it with additional information considered

173 necessary. The claimant may submit or obtain reports from experts challenging or supporting the

174 other reports in the record regardless of whether or not the expert examined the claimant or relied

175 solely upon the evidence of record.

176  (2) In the event a reviewing body elects to examine a claimant, the reviewing body shall

177 prepare a report stating the tests, examinations, procedures, and other observations that were

178 made, the manner in which each was conducted and the results of each. The report shall state

179 the findings made by the reviewing body and the reasons for the findings. Copies of the reports

180 of all examinations made by the reviewing body shall be served upon the parties. Each shall be

181 given an opportunity to respond in writing to the findings and conclusions stated in the reports.

182  (3) A reviewing body shall state its initial recommendations in writing with an explanation

183 for each recommendation setting forth the reasons for each. The recommendations shall be

184 served upon the claimant and the claimant shall be afforded a 30-day opportunity to respond in

185 writing to the reviewing body regarding its recommendations. The reviewing body shall review

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186 any responses and issue its final recommendations. The final recommendations shall be

187 effectuated by the entry of an appropriate order by the Insurance Commissioner, private carrier,

188 or self-insured employer, whichever is applicable. For all awards for permanent total disability

189 where the claim was filed on or after the effective date of the amendment and reenactment of this

190 section in the year 2003, the reviewing body shall establish the date of onset of the claimant’s

191 permanent total disability as the date when a properly completed and supported application for

192 permanent total disability benefits as prescribed in subdivision (1) of this subsection that results

193 in a finding of permanent total disability was filed: Provided, That upon notification to the Insurance

194 Commissioner, private carrier, or self-insured employer, whichever is applicable, by a claimant or

195 his or her representative that the claimant seeks to be evaluated for permanent total disability,

196 the Insurance Commissioner, private carrier, or self-insured employer shall send the claimant or

197 his or her representative the proper application form. The Insurance Commissioner, private

198 carrier, or self-insured employer, whichever is applicable, shall set time limits for the return of the

199 application. A properly completed and supported application returned within the time limits set by

200 the Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable,

201 shall be treated as if received on the date the Insurance Commissioner, private carrier, or self-

202 insured employer was notified the claimant was seeking evaluation for permanent total disability:

203 Provided, however, That notwithstanding any other provision of this section to the contrary, the

204 onset date may not be sooner than the date upon which the claimant meets the percentage

205 thresholds of prior permanent partial disability that are established by subsection (n) of this section

206 as a prerequisite to the claimant’s qualification for consideration for a permanent total disability

207 award.

208         Any objection filed in regard to a decision on an application for permanent total disability

209 benefits shall be subject to the review provisions of §23-5-1 et seq. of this code.(k) Compensation

210 payable under any subdivision of this section shall not exceed the maximum nor be less than the

211 weekly benefits specified in subdivision (b) of this section.

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212  (l) Except as otherwise specifically provided in this chapter, temporary total disability

213 benefits payable under subdivision (b) of this section shall not be deductible from permanent

214 partial disability awards payable under subdivision (e) or (f) of this section. Compensation, either

215 temporary total or permanent partial, under this section shall be payable only to the injured

216 employee and the right to the compensation shall not vest in his or her estate, except that any

217 unpaid compensation which would have been paid or payable to the employee up to the time of

218 his or her death, if he or she had lived, shall be paid to the dependents of the injured employee if

219 there are any dependents at the time of death.

220  (m) The following permanent disabilities shall be conclusively presumed to be total in

221 character:

222  Loss of both eyes or the sight thereof.

223  Loss of both hands or the use thereof.

224  Loss of both feet or the use thereof.

225  Loss of one hand and one foot or the use thereof.

226  (n)(1) Other than for those injuries specified in subdivision (m) of this section, in order to

227 be eligible to apply for an award of permanent total disability benefits for all injuries incurred and

228 all diseases, including occupational pneumoconiosis, regardless of the date of last exposure, on

229 and after the effective date of the amendment and reenactment of this section during the year

230 2003, a claimant: (A) Must have been awarded the sum of 50 percent in prior permanent partial

231 disability awards; (B) must have suffered a single occupational injury or disease which results in

232 a finding that the claimant has suffered a medical impairment of 50 percent; or (C) has sustained

233 a 35 percent statutory disability pursuant to the provisions of subdivision (f) of this section. Upon

234 filing an application, the claim will be reevaluated by the reviewing body pursuant to subdivision

235 (i) of this section to determine if the claimant has suffered a whole body medical impairment of 50

236 percent or more resulting from either a single occupational injury or occupational disease or a

237 combination of occupational injuries and occupational diseases or has sustained a 35 percent

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238 statutory disability pursuant to the provisions of subdivision (f) of this section. A claimant whose

239 prior permanent partial disability awards total 85 percent or more shall also be examined by the

240 reviewing body and must be found to have suffered a whole body medical impairment of 50

241 percent in order for his or her request to be eligible for further review. The reviewing body shall

242 review the claim as provided for in subdivision (j) of this section. If the claimant has not suffered

243 whole body medical impairment of at least 50 percent or has sustained a 35 percent statutory

244 disability pursuant to the provisions of subdivision (f) of this section, the request shall be denied.

245 Upon a finding that the claimant has a 50 percent whole body medical impairment or has

246 sustained a 35 percent statutory disability pursuant to the provisions of subdivision (f) of this

247 section, the review of the application continues as provided for in the following paragraph of this

248 subdivision. Those claimants whose prior permanent partial disability awards total 85 percent or

249 more and who have been found to have a whole body medical impairment of at least 50 percent

250 or have sustained a 35 percent statutory disability pursuant to the provisions of subdivision (f) of

251 this section are entitled to the rebuttable presumption created pursuant to subdivision (d) of this

252 section for the remaining issues in the request.

253  (2) For all awards made on or after the effective date of the amendment and reenactment

254 of this section during the year 2003, disability which renders the injured employee unable to

255 engage in substantial gainful activity requiring skills or abilities which can be acquired or which

256 are comparable to those of any gainful activity in which he or she has previously engaged with

257 some regularity and over a substantial period of time shall be considered in determining the issue

258 of total disability. The comparability of preinjury income to post-disability income will not be a

259 factor in determining permanent total disability. Geographic availability of gainful employment

260 within a driving distance of 75 miles from the residence of the employee or within the distance

261 from the residence of the employee to his or her preinjury employment, whichever is greater, will

262 be a factor in determining permanent total disability. For any permanent total disability award

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263 made after the amendment and reenactment of this section in the year 2003, permanent total

264 disability benefits shall cease at the age of 70 years.

265      (3) In the event that a claimant, who has been found to have at least a 50 percent whole

266 body medical impairment or has sustained a 35 percent statutory disability pursuant to the

267 provisions of subdivision (f) of this section is denied an award of permanent total disability benefits

268 pursuant to this subdivision and accepts and continues to work at a lesser paying job than he or

269 she previously held, the claimant is eligible, notwithstanding the provisions of §23-4-9 of this code,

270 to receive temporary partial rehabilitation benefits for a period of four years. The benefits shall be

271 paid at the level necessary to ensure the claimant’s receipt of the following percentages of the

272 average weekly wage earnings of the claimant at the time of injury calculated as provided in this

273 section and §23-4-6d and §23-4-14 of this code:

274      (A) 80 percent for the first year;

275      (B) 70 percent for the second year;

276      (C) 60 percent for the third year; and

277      (D) 50 percent for the fourth year: Provided, That in no event shall the benefits exceed

278 100 percent of the average weekly wage in West Virginia. In no event shall the benefits be subject

279 to the minimum benefit amounts required by the provisions of subdivision (b) of this section.

280      (4) Notwithstanding any provision of this subsection, subsection (d) of this section, or any

281 other provision of this code to the contrary, on any claim filed on or after the effective date of the

282 amendment and reenactment of this section in the year 2003:

283      (A) No percent of whole body medical impairment existing as the result of carpal tunnel

284 syndrome for which a claim has been made under this chapter may be included in the aggregation

285 of permanent disability under the provisions of this subsection or subsection (d) of this section;

286 and

287      (B) No percent of whole body medical impairment existing as the result of any occupational

288 disease, the diagnosis of which is based solely upon symptoms rather than specific, objective,

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289 and measurable medical findings, and for which a claim has been made under this chapter may

290 be included in the aggregation of permanent disability under the provisions of this subsection or

291 subsection (d) of this section.

292  (o) To confirm the ongoing permanent total disability status of the claimant, the Insurance

293 Commissioner, private carrier, or self-insured employer, whichever is applicable, may elect to

294 have any recipient of a permanent total disability award undergo one medical examination during

295 each of the first five years that the permanent total disability award is paid and one medical

296 examination during each three-year period thereafter until the claimant reaches the age of 70

297 years: Provided, That the Insurance Commissioner, private carrier, or self-insured employer may

298 elect to have any recipient of a permanent total disability award under the age of 50 years undergo

299 one medical examination during each year that the permanent total disability award is paid until

300 the recipient reaches the age of 50 years, and thereafter one medical examination during each

301 three-year period thereafter until the claimant reaches the age of 70 years.

     §23-4-6a. Benefits and mode of payment to employees and dependents for occupational

     pneumoconiosis; further adjustment of claim for occupational pneumoconiosis.

1    If an employee is found to be permanently disabled due to occupational pneumoconiosis

2 as defined in §23-4-1 of this code, the percentage of permanent disability is determined by the

3 degree of medical impairment that is found by the Occupational Pneumoconiosis Board. The

4 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, shall

5 enter an order setting forth the findings of the Occupational Pneumoconiosis Board with regard

6 to whether the claimant has occupational pneumoconiosis and the degree of medical impairment,

7 if any, resulting therefrom. That order is the final decision of the Insurance Commissioner, private

8 carrier, or self-insured employer, whichever is applicable, for purposes of §23-5-1a of this code.

9 If a decision is objected to, the Board of Review shall affirm the decision of the Occupational

10 Pneumoconiosis Board made following hearing unless the decision is clearly wrong in view of the

11 reliable, probative, and substantial evidence on the whole record. Compensation is paid therefor

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12 in the same manner and at the same rate as is provided for permanent disability under the

13 provisions of §23-4-6 of this code: Provided, That for any employee who applies for occupational

14 pneumoconiosis benefits whose award was granted on or after the effective date of the

15 amendment and reenactment of this section during the year 2003, there shall be no permanent

16 partial disability awarded based solely upon a diagnosis of occupational pneumoconiosis, it being

17 the intent of the Legislature to eliminate any permanent partial disability awards for occupational

18 pneumoconiosis without a specific finding of measurable impairment.

19  If the employee dies from occupational pneumoconiosis, the benefits shall be as provided

20 for in §23-4-10 of this code; as to the benefits, §23-4-11 through §23-4-14 of this code, inclusive,

21 of this article apply.

22  In cases of permanent disability or death due to occupational pneumoconiosis, as defined

23 in §23-4-1 of this code, accompanied by active tuberculosis of the lungs, compensation shall be

24 payable as for disability or death due to occupational pneumoconiosis alone.

25  The provisions of §23-4-16 of this code and §23-5-2, §23-5-3a, §23-5-4, and §23-5-5a of

26 this code providing for the further adjustment of claims are applicable to the claim of any claimant

27 who receives a permanent partial disability award for occupational pneumoconiosis.

    §23-4-6d. Benefits payable to part-time employees.

1   (a) For purposes of this section, a part-time employee means an employee who, at the

2 date of injury, is customarily employed 25 hours per week or less on a regular basis and is

3 classified by the employer as a part-time employee: Provided, That the term "part-time employee"

4 shall not include an employee who regularly works more than 25 hours per week for the employer,

5 nor shall it include an employee who regularly works for more than one employer and whose

6 regular combined working hours total more than 25 hours per week when that employee is

7 rendered unable to perform the duties of his or her employment as a result of the injury, nor shall

8 it include any employee in the construction industry who works less than 25 hours per week.

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9   (b) For purposes of establishing temporary total disability weekly benefits pursuant to §23-

10 4-6(b) of this code for part-time employees, the "average weekly wage earnings, wherever

11 earned, of the injured person at the date of injury" shall be computed based upon the best average

12 weekly gross pay, wherever earned, which is received by the employee during the best quarter

13 of wages out of the preceding four quarters of wages as reported to the Insurance Commissioner

14 pursuant to §23-2-2(b) of this code: Provided, That for part-time employees who have been

15 employed less than two months but more than one week prior to the date of injury or any employee

16 whose wages have not yet been reported to the Insurance Commissioner, the average weekly

17 wage earnings shall be calculated based upon the average gross earnings in the weeks actually

18 worked: Provided, however, That for part-time employees who have been employed one week or

19 less, the average weekly wage earnings shall be calculated based upon the average weekly wage

20 prevailing for the same or similar part-time employment at the time of injury except that when an

21 employer has agreed to pay a certain hourly wage to a part-time employee, the average weekly

22 wage shall be computed by multiplying the hourly wage by the regular numbers of hours

23 contracted to be worked each week: Provided further, That notwithstanding any provision of this

24 article to the contrary, no part-time employee shall receive temporary total disability benefits

25 greater than his or her average weekly wage earnings as so calculated.

26  (c) Notwithstanding any other provisions of this article to the contrary, benefits payable to

27 a part-time injured employee for any permanent disability shall be computed and paid on the same

28 basis as if the injured employee is not a part-time employee within the meaning of this section.

    §23-4-7. Release of medical information to employer; legislative findings; effect of

    application for benefits; duty of employer.

1   (a) The Legislature hereby finds and declares that two of the primary objectives of the

2 workers’ compensation system established by this chapter are to provide benefits to an injured

3 claimant promptly and to effectuate his or her return to work at the earliest possible time; and that

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4 the prompt dissemination of medical information to the employer as to diagnosis, treatment, and

5 recovery is essential if these two objectives are to be achieved.

6  (b) In view of the foregoing findings, a claimant irrevocably agrees by the filing of his or

7 her application for benefits that any physician may release to and orally discuss with the claimant’s

8 employer, or its representative, or with a representative of the Insurance Commissioner, private

9 carrier, or self-insured employer, whichever is applicable, from time to time, the claimant’s medical

10 history and any medical reports pertaining to the occupational injury or disease and to any prior

11 injury or disease of the portion of the claimant’s body to which a medical impairment is alleged

12 containing detailed information as to the claimant’s condition, treatment, prognosis, and

13 anticipated period of disability and dates as to when the claimant will reach or has reached his or

14 her maximum degree of improvement or will be or was released to return to work. For the

15 exclusive purposes of this chapter, the patient-physician privilege of confidentiality is waived with

16 regard to the physician’s provision of this medical information pursuant to this section. Whenever

17 a copy of any medical report is obtained by the employer or its representative and the physician

18 has not also forwarded a copy of the medical report to the Insurance Commissioner, private

19 carrier, or self-insured employer, whichever is applicable, the employer shall forward a copy of

20 the medical report to the Insurance Commissioner, private carrier, or self-insured employer within

21 10 days from the date the employer received the medical report from the physician.

   §23-4-7a. Monitoring of injury claims; legislative findings; review of medical evidence;

   recommendation of authorized treating physician; medical evaluations; temporary

   total disability benefits and the termination thereof; mandatory action; additional

   authority; suspension of benefits.

1  (a) The Legislature hereby finds and declares that injured claimants should receive the

2 type of treatment needed as promptly as possible; that overpayments of benefits with the resultant

3 hardship created by the requirement of repayment should be minimized; and that to achieve these

4 two objectives it is essential that the Insurance Commissioner, private carriers, and self-insured

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5 employers establish and operate a systematic program for the monitoring of injury claims where

6 the disability continues longer than might ordinarily be expected.

7   (b) In view of the foregoing findings, the Insurance Commissioner shall establish

8 guidelines as to the anticipated period of disability for the various types of injuries. Each injury

9 claim in which temporary total disability continues beyond the anticipated period of disability

10 established for the injury involved shall be reviewed. If satisfied after reviewing the medical

11 evidence that the claimant would not benefit by a medical evaluation, the Insurance

12 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall mark the

13 claim file accordingly and shall diary the claim file as to the next date for required review which

14 shall not exceed 60 days. If the Insurance Commissioner, private carrier, or self-insured employer,

15 whichever is applicable, concludes that the claimant might benefit by a medical evaluation, the

16 Insurance Commissioner, private carrier, or self-insured employer shall proceed as specified in

17 subsections (d) and (e) of this section.

18  (c) When the authorized treating physician concludes that the claimant has either reached

19 his or her maximum degree of improvement or is ready for disability evaluation, or when the

20 claimant has returned to work, the authorized treating physician may recommend a permanent

21 partial disability award for residual impairment relating to and resulting from the compensable

22 injury, and the following provisions govern and control:

23  (1) If the authorized treating physician recommends a permanent partial disability award

24 of 15 percent or less, the Insurance Commissioner, private carrier, or self-insured employer,

25 whichever is applicable, shall enter an award of permanent partial disability benefits based upon

26 the recommendation and all other available information. The claimant’s entitlement to temporary

27 total disability benefits ceases upon the entry of the award unless previously terminated under

28 the provisions of subsection (e) of this section.

29  (2) If, however, the authorized treating physician recommends a permanent partial

30 disability award in excess of 15 percent, or recommends a permanent total disability award, the

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31 claimant’s entitlement to temporary total disability benefits ceases upon the receipt by the

32 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, of the

33 medical report. The Insurance Commissioner, private carrier, or self-insured employer, whichever

34 is applicable, shall refer the claimant to a physician or physicians of its selection for evaluation

35 prior to the entry of a permanent disability award: Provided, That unless the claimant has returned

36 to work, the claimant shall thereupon receive benefits which shall be at the permanent partial

37 disability rate as provided in §23-4-6(e) of this code until the entry of a permanent disability award

38 or until the claimant returns to work. The amount of benefits paid prior to the receipt of the

39 evaluation report shall be considered and determined to be payment of the permanent disability

40 award granted, if any. In the event that benefits actually paid exceed the amount granted by the

41 permanent partial disability award, the claimant is entitled to no further benefits by the award and

42 the excess paid shall be an overpayment. For all awards made or nonawarded partial benefits

43 paid, the Insurance Commissioner, private carrier, or self-insured employer, whichever is

44 applicable, may only recover the amount of overpaid benefits or expenses by withholding, in

45 whole or in part, future disability benefits payable to the individual in the same or other claims and

46 credit the amount against the overpayment until it is repaid in full.

47  (d) When the Insurance Commissioner, private carrier, or self-insured employer,

48 whichever is applicable, concludes that a medical evaluation is indicated, or that a claimant may

49 be ready for disability evaluation in accordance with other provisions of this chapter, the Insurance

50 Commissioner, private carrier, or self-insured employer shall refer the claimant to a physician or

51 physicians of its selection for examination and evaluation. If the physician or physicians selected

52 recommend continued, additional, or different treatment, the recommendation shall be relayed to

53 the claimant and the claimant’s treating physician and the recommended treatment may be

54 authorized by the Insurance Commissioner, private carrier, or self-insured employer, whichever

55 is applicable.

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56  (e) Notwithstanding any provision in subsection (c) of this section, the Insurance

57 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall enter a

58 notice suspending the payment of temporary total disability benefits but providing a reasonable

59 period of time during which the claimant may submit evidence justifying the continued payment

60 of temporary total disability benefits:

61  (1) When the physician or physicians selected by the Insurance Commissioner, private

62 carrier, or self-insured employer, whichever is applicable, conclude that the claimant has reached

63 his or her maximum degree of improvement;

64  (2) When the authorized treating physician advises the Insurance Commissioner, private

65 carrier, or self-insured employer, whichever is applicable, that the claimant has reached his or her

66 maximum degree of improvement or that he or she is ready for disability evaluation and when the

67 authorized treating physician has not made any recommendation with respect to a permanent

68 disability award as provided in subsection (c) of this section;

69  (3) When other evidence submitted to the Insurance Commissioner, private carrier, or self-

70 insured employer, whichever is applicable, justifies a finding that the claimant has reached his or

71 her maximum degree of improvement; or

72  (4) When other evidence submitted or otherwise obtained justifies a finding that the

73 claimant has engaged or is engaging in abuse, including, but not limited to, physical activities

74 inconsistent with his or her compensable workers’ compensation injury.

75  In all cases, a finding by the Insurance Commissioner, private carrier, or self-insured

76 employer, whichever is applicable, that the claimant has reached his or her maximum degree of

77 improvement terminates the claimant’s entitlement to temporary total disability benefits regardless

78 of whether the claimant has been released to return to work. Under no circumstances shall a

79 claimant be entitled to receive temporary total disability benefits either beyond the date the

80 claimant is released to return to work or beyond the date he or she actually returns to work.

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81   In the event that the medical or other evidence indicates that claimant has a permanent

82 disability, unless he or she has returned to work, the claimant shall thereupon receive benefits

83 which shall be at the permanent partial disability rate as provided in §23-4-6(e) of this code until

84 entry of a permanent disability award, pursuant to an evaluation by a physician or physicians

85 selected by the Insurance Commissioner, private carrier, or self-insured employer, whichever is

86 applicable, or until the claimant returns to work. The amount of benefits shall be considered and

87 determined to be payment of the permanent disability award granted, if any. In the event that

88 benefits actually paid exceed the amount granted under the permanent disability award, the

89 claimant is entitled to no further benefits by the order.

90   (f) Notwithstanding the anticipated period of disability established pursuant to the

91 provisions of subsection (b) of this section, whenever in any claim temporary total disability

92 continues longer than 120 days from the date of injury (or from the date of the last preceding

93 examination and evaluation pursuant to the provisions of this subsection or pursuant to the

94 directions of the Insurance Commissioner, private carrier, or self-insured employer, whichever is

95 applicable, under other provisions of this chapter), the Insurance Commissioner, private carrier,

96 or self-insured employer, whichever is applicable, shall refer the claimant to a physician or

97 physicians of the Insurance Commissioner’s, private carrier’s, or self-insured employer’s

98 selection for examination and evaluation in accordance with the provisions of §23-4-7a(d) of this

99 code, and the provisions of subsection (e) of this section are fully applicable: Provided, That the

100 requirement of mandatory examinations and evaluations pursuant to the provisions of this

101 subsection shall not apply to any claimant who sustained a brain stem or spinal cord injury with

102 resultant paralysis or an injury which resulted in an amputation necessitating a prosthetic

103 appliance.

104  (g) The provisions of this section are in addition to and in no way in derogation of the

105 power and authority vested in the Insurance Commissioner, private carrier, or self-insured

106 employer, whichever is applicable, by other provisions of this chapter or vested in the employer

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107 to have a claimant examined by a physician or physicians of the employer’s selection and at the

108 employer’s expense, or vested in the claimant or employer to file a protest, under other provisions

109 of this chapter.

110  (h) All evaluations and examinations performed by physicians shall be performed in

111 accordance with the protocols and procedures established by rule of the Insurance

112 Commissioner: Provided, That the physician may exceed these protocols when additional

113 evaluation is medically necessary.

114  (i) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

115 applicable, may suspend benefits being paid to a claimant if the claimant refuses, without good

116 cause, to undergo the examinations or needed treatments provided for in this section until the

117 claimant submits to the examination or needed treatments.

     §23-4-8a. Occupational Pneumoconiosis Board; composition; term of office; duties;

     quorum; remuneration.

1    The Occupational Pneumoconiosis Board shall consist of five licensed physicians who

2 shall be appointed by the Insurance Commissioner. No person shall be appointed as a member

3 of the board, or as a consultant thereto, who has not by special study or experience, or both,

4 acquired special knowledge of pulmonary diseases. All members of the Occupational

5 Pneumoconiosis Board shall be physicians of good professional standing admitted to practice

6 medicine and surgery in this state. Two members shall be roentgenologists. One member of the

7 board shall be designated annually as chairman by the Insurance Commissioner. The term of

8 office of each member of the board shall be six years. Any member of the board may be appointed

9 to any number of terms. The function of the board is to determine all medical questions relating

10 to cases of compensation for occupational pneumoconiosis under the direction and supervision

11 of the Insurance Commissioner. Any three members of the board constitute a quorum for the

12 transaction of its business if at least one of the members present is a roentgenologist. The

13 Insurance Commissioner, shall, from time to time, fix the compensation to be paid each member

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14 of the board. Members are also entitled to reasonable and necessary traveling and other

15 expenses incurred while actually engaged in the performance of their duties. In fixing the

16 compensation of board members, the Insurance Commissioner shall take into consideration the

17 number of claimants a member of the board actually examines, the actual time spent by members

18 in discharging their duties, and the recommendation of the Governor as to reasonable

19 reimbursement per unit of time expended based on comparative data for physicians within the

20 state in the same medical specialties.

   §23-4-8b. Occupational Pneumoconiosis Board; procedure; autopsy.

1  The Occupational Pneumoconiosis Board, upon reference to it by an appropriate party of

2 a case of occupational pneumoconiosis, shall notify the employee, or in case he or she is dead,

3 the claimant, and the employer, as well as the Insurance Commissioner, private carrier, or self-

4 insured employer, whichever is applicable, to appear before the board at a time and place stated

5 in the notice. If the employee is living, he or she shall appear before the board at the time and

6 place specified and submit to the examination, including clinical and X-ray examinations, required

7 by the board. If a physician licensed to practice medicine in the state makes an affidavit that the

8 employee is physically unable to appear at the time and place designated by the board, the board

9 shall, on notice to the proper parties, change the place and time as may reasonably facilitate the

10 hearing or examination of the employee or may appoint a qualified specialist in the field of

11 respiratory disease to examine the claimant on behalf of the board. The employee, or in case he

12 or she is dead, the claimant, and employer shall also produce as evidence to the board all reports

13 of medical and X-ray examinations which may be in their respective possession or control,

14 showing the past or present condition of the employee. If the employee is dead, the notice of the

15 board shall further require that the claimant produce necessary consents and permits so that an

16 autopsy may be performed, if the board so directs. When in the opinion of the board an autopsy

17 is considered necessary to accurately and scientifically ascertain and determine the cause of

18 death, the autopsy examination shall be ordered by the board, which shall designate a duly

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19 licensed physician, a pathologist, or any other specialists determined necessary by the board, to

20 make the examination and tests to determine the cause of death and certify his or her or their

21 written findings, in triplicate, to the board. The findings shall be public records. In the event that a

22 claimant for compensation for the death refuses to consent and permit the autopsy to be made,

23 all rights for compensation are forfeited.

24  The employee, or if he or she be dead, the claimant, and the employer, shall be entitled

25 to be present at all examinations conducted by the board and to be represented by attorneys and

26 physicians.

    §23-4-8c. Occupational Pneumoconiosis Board; reports and distribution thereof;

    presumption; findings required of board; objection to findings; procedure thereon;

    limitations on refilings; consolidation of claims.

1   (a) The Occupational Pneumoconiosis Board, as soon as practicable after it has

2 completed its investigation, shall make its written report to the Insurance Commissioner, private

3 carrier, or self-insured employer, whichever is applicable, of its findings and conclusions on every

4 medical question in controversy and the board shall send one copy of the report to the employee

5 or claimant and one copy to the employer. The Occupational Pneumoconiosis Board shall also

6 return to and file with the Insurance Commissioner, private carrier, or self-insured employer,

7 whichever is applicable, all the evidence as well as all statements under oath, if any, of the

8 persons who appeared before it on behalf of the employee or claimant, or employer, and also all

9 medical reports and X-ray examinations produced by or on behalf of the employee or claimant,

10 or employer.

11  (b) If it can be shown that the claimant or deceased employee has been exposed to the

12 hazard of inhaling minute particles of dust in the course of and resulting from his or her

13 employment for a period of 10 years during the 15 years immediately preceding the date of his or

14 her last exposure to such hazard and that the claimant or deceased employee has sustained a

15 chronic respiratory disability, it shall be presumed that the claimant is suffering or the deceased

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16 employee was suffering at the time of his or her death from occupational pneumoconiosis which

17 arose out of and in the course of his or her employment. This presumption is not conclusive.

18  (c) The findings and conclusions of the Occupational Pneumoconiosis Board shall set

19 forth, among other things, the following:

20  (1) Whether or not the claimant or the deceased employee has contracted occupational

21 pneumoconiosis and, if so, the percentage of permanent disability resulting therefrom;

22  (2) Whether or not the exposure in the employment was sufficient to have caused the

23 claimant’s or deceased employee’s occupational pneumoconiosis or to have perceptibly

24 aggravated an existing occupational pneumoconiosis or other occupational disease; and

25  (3) What, if any, physician appeared before the board on behalf of the claimant or

26 employer and what, if any, medical evidence was produced by or on behalf of the claimant or

27 employer.

28  (d) If either party objects to the whole or any part of the findings and conclusions of the

29 Occupational Pneumoconiosis Board, the party shall file with the Board of Review, within 60 days

30 from receipt of the copy to that party, unless for good cause shown the Board of Review extends

31 the time, the party’s objections to the findings and conclusions of the Occupational

32 Pneumoconiosis Board in writing, specifying the particular statements of the Occupational

33 Pneumoconiosis Board’s findings and conclusions to which such party objects. The filing of an

34 objection within the time specified is a condition of the right to litigate the findings and therefore

35 jurisdictional. After the time has expired for the filing of objections to the findings and conclusions

36 of the Occupational Pneumoconiosis Board, the Board of Review shall proceed to act as provided

37 in this chapter. If, after the time has expired for the filing of objections to the findings and

38 conclusions of the Occupational Pneumoconiosis Board, no objections have been filed, the report

39 of a majority of the Occupational Pneumoconiosis Board of its findings and conclusions on any

40 medical question shall be taken to be plenary and conclusive evidence of the findings and

41 conclusions stated in the report. If objection has been filed to the findings and conclusions of the

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42 Occupational Pneumoconiosis Board, notice of the objection shall be given to the board. The

43 members of the Occupational Pneumoconiosis Board joining in the findings and conclusions shall

44 appear at the time fixed by the Board of Review for the hearing to submit to examination and

45 cross-examination in respect to the findings and conclusions. At the hearing, evidence to support

46 or controvert the findings and conclusions of the Occupational Pneumoconiosis Board shall be

47 limited to examination and cross-examination of the members of the board and to the taking of

48 testimony of other qualified physicians and roentgenologists.

49  (e) In the event that a claimant receives a final decision that he or she has no evidence of

50 occupational pneumoconiosis, the claimant is barred for a period of three years from the date of

51 the Occupational Pneumoconiosis Board’s decision or until his or her employment with the

52 employer who employed the claimant at the time designated as the claimant’s last date of

53 exposure in the denied claim has terminated, whichever is sooner, from filing a new claim or

54 pursuing a previously filed, but unruled upon, claim for occupational pneumoconiosis or

55 requesting a modification of any prior ruling finding him or her not to be suffering from occupational

56 pneumoconiosis. For the purposes of this subsection, a claimant’s employment shall be

57 considered to be terminated if, for any reason, he or she has not worked for that employer for a

58 period in excess of 90 days. Any previously filed, but unruled upon, claim shall be consolidated

59 with the claim in which the Occupational Pneumoconiosis Board’s decision is made and shall be

60 denied together with the decided claim. The provisions of this subsection shall not be applied in

61 any claim where doing so would, in and of itself, later cause a claimant’s claim to be forever barred

62 by the provisions of §23-4-15 of this code.

63  (f) Effective upon termination of the former workers’ compensation commission, the

64 Insurance Commissioner shall assume all administrative powers and responsibilities necessary

65 to administer this section and §23-4-8a and §23-4-8b of this code.

    §23-4-9. Physical and vocational rehabilitation.

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1   (a) The Legislature hereby finds that it is a goal of the workers’ compensation program to

2 assist employees to return to suitable gainful employment after an injury. In order to encourage

3 workers to return to employment and to encourage and assist employers in providing suitable

4 employment to injured employees, it is a priority of the Insurance Commissioner, private carrier,

5 or self-insured employer, whichever is applicable, to achieve early identification of individuals

6 likely to need rehabilitation services and to assess the rehabilitation needs of these injured

7 employees. It is the goal of rehabilitation to return injured employees to employment which is

8 comparable in work and pay to that which the individual performed prior to the injury. If a return

9 to comparable work is not possible, the goal of rehabilitation is to return the individual to alternative

10 suitable employment, using all possible alternatives of job modification, restructuring,

11 reassignment, and training, so that the individual will return to productivity with his or her employer

12 or, if necessary, with another employer. The Legislature further finds that it is the shared

13 responsibility of the employer, the employee, the physician, and the Insurance Commissioner or

14 private carrier to cooperate in the development of a rehabilitation process designed to promote

15 reemployment for the injured employee.

16  (b) In cases where an employee has sustained a permanent disability, or has sustained

17 an injury likely to result in temporary disability as determined by the Insurance Commissioner,

18 private carrier, or self-insured employer, whichever is applicable, the Insurance Commissioner,

19 private carrier, or self-insured employer shall at the earliest possible time determine whether the

20 employee would be assisted in returning to remunerative employment with the provision of

21 rehabilitation services and if it is determined that the employee can be physically and vocationally

22 rehabilitated and returned to remunerative employment by the provision of rehabilitation services

23 including, but not limited to, vocational or on-the-job training, counseling, assistance in obtaining

24 appropriate temporary or permanent work site, work duties, or work hours modification, by the

25 provision of crutches, artificial limbs, or other approved mechanical appliances, or medicines,

26 medical, surgical, dental, or hospital treatment or other services which the Insurance

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27 Commissioner, private carrier, or self-insured employer in its sole discretion determines will

28 directly assist the employee’s return to employment, the Insurance Commissioner, private carrier,

29 or self-insured employer shall immediately develop a rehabilitation plan for the employee and,

30 after due notice to the employer, expend an amount necessary for that purpose: Provided, That

31 the expenditure for vocational rehabilitation shall not exceed $20,000 for any one injured

32 employee: Provided, however, That no payment shall be made for such vocational rehabilitation

33 purposes as provided in this section unless authorized by the Insurance Commissioner, private

34 carrier, or self-insured employer prior to the rendering of the physical or vocational rehabilitation,

35 except that payments shall be made for reasonable medical expenses without prior authorization

36 if sufficient evidence exists which would relate the treatment to the injury and the attending

37 physician or physicians have requested authorization prior to the rendering of the treatment:

38 Provided further, That payment for physical rehabilitation, including the purchase of prosthetic

39 devices and other equipment and training in use of the devices and equipment, are considered

40 expenses within the meaning of §23-4-3 of this code and are subject to the provisions of §23-4-3

41 of this code. The provision of any rehabilitation services may be pursuant to a rehabilitation plan

42 to be developed and monitored by a rehabilitation professional for each injured employee or by

43 such other provider as determined by the Insurance Commissioner, private carrier, or self-insured

44 employer, whichever is applicable. Notwithstanding any other provision of this section to the

45 contrary, the Insurance Commissioner may determine by rule that a rehabilitation plan or any

46 component thereof is not appropriate for an injured employee.

47  (c) In every case in which the Insurance Commissioner, private carrier, or self-insured

48 employer, whichever is applicable, orders physical or vocational rehabilitation of a claimant as

49 provided in this section, the claimant shall, during the time he or she is receiving any vocational

50 rehabilitation or rehabilitative treatment that renders him or her totally disabled during the period

51 of rehabilitation, be compensated on a temporary total disability basis for that period.

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52  (d) In every case in which the claimant returns to gainful employment as part of a

53 rehabilitation plan, and the employee’s average weekly wage earnings are less than the average

54 weekly wage earnings earned by the injured employee at the time of the injury, he or she shall

55 receive temporary partial rehabilitation benefits calculated as follows: The temporary partial

56 rehabilitation benefit shall be 70 percent of the difference between the average weekly wage

57 earnings earned at the time of the injury and the average weekly wage earnings earned at the

58 new employment, both to be calculated as provided in §23-4-6, §23-4-6d, and §23-4-14 of this

59 code as the calculation is performed for temporary total disability benefits, subject to the following

60 limitations: In no event are the benefits subject to the minimum benefit amounts required by the

61 provisions of §23-4-6(b) of this code, nor may the benefits exceed the temporary total disability

62 benefits to which the injured employee would be entitled pursuant to §23-4-6, §23-4-6d, and §23-

63 4-14 of this code during any period of temporary total disability resulting from the injury in the

64 claim: Provided, That no temporary total disability benefits shall be paid for any period for which

65 temporary partial rehabilitation benefits are paid: Provided, however, That the aggregate award

66 of temporary total rehabilitation or temporary partial rehabilitation benefits for a single injury for

67 which an award of temporary total rehabilitation or temporary partial rehabilitation benefits is made

68 on or after the effective date of the amendment and reenactment of this section in the year 2003

69 shall be for a period not exceeding 52 weeks unless the payment of temporary total rehabilitation

70 disability benefits is in conjunction with an approved vocational rehabilitation plan for retraining,

71 in which event the payment period of temporary total rehabilitation disability benefits may be

72 extended for a period not to exceed a total of 104 weeks. The amount of temporary partial

73 rehabilitation benefits payable under this subsection shall be reviewed every 90 days to determine

74 whether the injured employee’s average weekly wage in the new employment has changed and,

75 if the change has occurred, the amount of benefits payable under this subsection shall be adjusted

76 prospectively. Temporary partial rehabilitation benefits shall only be payable when the injured

77 employee is receiving vocational rehabilitation services in accordance with a rehabilitation plan

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78 developed under this section and no payment of temporary partial rehabilitation benefits shall be

79 made after the claimant has received the vocational training provided under the rehabilitation

80 plan.

81        (e) The Insurance Commissioner shall propose for promulgation rules for the purpose of

82 developing a comprehensive rehabilitation program which will assist injured workers to return to

83 suitable gainful employment after an injury in a manner consistent with the provisions and findings

84 of this section. The rules shall provide definitions for rehabilitation facilities and rehabilitation

85 services pursuant to this section. Notwithstanding any other provision of this chapter to the

86 contrary, and in addition to the provisions of §23-4-3 of this code authorizing an employer or the

87 employer’s representative to participate in a managed health care plan, including a managed

88 health care plan that provides physical and vocational rehabilitation services, an employer or the

89 employer’s representative may contract directly with one or more providers of vocational

90 rehabilitation services to be the employer’s preferred provider of vocational rehabilitation services

91 for its employees who receive injuries compensable under the provisions of this chapter and the

92 rules promulgated under this section may require those employees to use the preferred providers.

    §23-4-11. To whom death benefits paid.

1         The benefits, in case of death, shall be paid to one or more dependents of the decedent,

2 or to any other persons, for the benefit of all of the dependents, as may be determined by the

3 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, who

4 may apportion the benefits among the dependents in the manner as they consider just and

5 equitable. Payment to a dependent subsequent in right may be made if the Insurance

6 Commissioner, private carrier, or self-insured employer, whichever is applicable, considers proper

7 and it operates to discharge all other claims for the benefits.

    §23-4-12. Application of benefits.

1         The dependent or person to whom benefits are paid shall apply the benefits to the use of

2 the several beneficiaries of the benefits according to their respective claims upon the decedent

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3 for support, in compliance with the finding and direction of the Insurance Commissioner, private

4 carrier, or self-insured employer, whichever is applicable.

    §23-4-14. Computation of benefits.

1   (a) The average weekly wage earnings, wherever earned, of the injured person at the date

2 of injury and the average weekly wage in West Virginia as determined by the Insurance

3 Commissioner, in effect at the date of injury, shall be taken as the basis upon which to compute

4 the benefits.

5   (1) In cases involving occupational pneumoconiosis or other occupational diseases, the

6 "date of injury" is the date of the last exposure to the hazards of occupational pneumoconiosis or

7 other occupational diseases.

8   (2) In computing benefits payable on account of occupational pneumoconiosis, the

9 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, shall

10 deduct the amount of all prior workers’ compensation benefits paid to the same claimant on

11 account of silicosis, but a prior silicosis award shall not, in any event, preclude an award for

12 occupational pneumoconiosis otherwise payable under this article.

13  (b)(1) Until July 1, 1994, the expression "average weekly wage earnings, wherever

14 earned, of the injured person, at the date of injury", within the meaning of this chapter, shall be

15 computed based upon the daily rate of pay at the time of the injury or upon the average pay

16 received during the two months, six months or 12 months immediately preceding the date of the

17 injury, whichever is most favorable to the injured employee, except for the purpose of computing

18 temporary total disability benefits for part-time employees pursuant to the provisions of §23-4-6d

19 of this code.

20  (2) On and after July 1, 1994, the expression "average weekly wage earnings, wherever

21 earned, of the injured person, at the date of injury", within the meaning of this chapter, shall be

22 computed based upon the daily rate of pay at the time of the injury or upon the weekly average

23 derived from the best quarter of wages out of the preceding four quarters of wages as reported to

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24 the Insurance Commissioner pursuant to §23-2-2(b) of this code, whichever is most favorable to

25 the injured employee, except for the purpose of computing temporary total disability benefits for

26 part-time employees pursuant to the provisions of §23-4-6d of this code.

27  (c) The expression "average weekly wage in West Virginia", within the meaning of this

28 chapter, is the average weekly wage in West Virginia as determined by the Commissioner of the

29 Bureau of Employment Programs in accordance with the provisions of §21A-6-10 and §21A-6-11

30 of this code and other applicable provisions of said chapter.

31  (d) In any claim for injuries, including occupational pneumoconiosis and other occupational

32 diseases, occurring on or after July 1, 1971, any award for temporary total, permanent partial, or

33 permanent total disability benefits or for dependent benefits shall be paid at the weekly rates or

34 in the monthly amount in the case of dependent benefits applicable to the claimant in effect on

35 the date of the injury. In no event shall an award for permanent total disability be subject to annual

36 adjustments resulting from changes in the average weekly wage in West Virginia.

    §23-4-15. Application for benefits.

1   (a) To entitle any employee or dependent of a deceased employee to compensation under

2 this chapter, other than for occupational pneumoconiosis or other occupational disease, the

3 application for compensation shall be made on the form or forms prescribed by the Insurance

4 Commissioner, and filed with the Insurance Commissioner, private carrier, or self-insured

5 employer, whichever is applicable, within six months from and after the injury or death, as the

6 case may be, and unless filed within the six months period, the right to compensation under this

7 chapter is forever barred, such time limitation being hereby declared to be a condition of the right

8 and hence jurisdictional, and all proofs of dependency in fatal cases must also be filed within six

9 months from and after the death. In case the employee is mentally or physically incapable of filing

10 the application, it may be filed by his or her attorney or by a member of his or her family.

11  (b) To entitle any employee to compensation for occupational pneumoconiosis under the

12 provisions of this subsection, the application for compensation shall be made on the form or forms

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13 prescribed by the Insurance Commissioner, and filed with the Insurance Commissioner, private

14 carrier, or self-insured employer, whichever is applicable, within three years from and after the

15 last day of the last continuous period of 60 days or more during which the employee was exposed

16 to the hazards of occupational pneumoconiosis or within three years from and after a diagnosed

17 impairment due to occupational pneumoconiosis was made known to the employee by a physician

18 and unless filed within the three-year period, the right to compensation under this chapter is

19 forever barred, such time limitation being hereby declared to be a condition of the right and hence

20 jurisdictional, or, in the case of death, the application shall be filed by the dependent of the

21 employee within two years from and after the employee’s death, and such time limitation is a

22 condition of the right and hence jurisdictional.

23  (c) To entitle any employee to compensation for occupational disease other than

24 occupational pneumoconiosis under the provisions of this section, the application for

25 compensation shall be made on the form or forms prescribed by the Insurance Commissioner,

26 and filed with the Insurance Commissioner, private carrier, or self-insured employer, whichever is

27 applicable, within three years from and after the day on which the employee was last exposed to

28 the particular occupational hazard involved or within three years from and after the employee’s

29 occupational disease was made known to him or her by a physician or which he or she should

30 reasonably have known, whichever last occurs, and unless filed within the three-year period, the

31 right to compensation under this chapter shall be forever barred, such time limitation being hereby

32 declared to be a condition of the right and therefore jurisdictional, or, in case of death, the

33 application shall be filed as aforesaid by the dependent of the employee within one year from and

34 after the employee’s death, and such time limitation is a condition of the right and hence

35 jurisdictional.

    §23-4-15a. Nonresident alien beneficiaries.

1   Notwithstanding any other provisions of this chapter, nonresident alien beneficiaries are

2 entitled to the same benefits as citizens of the United States: Provided, That the Insurance

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3 Commissioner, private carrier, or self-insured employer, whichever is applicable, in its discretion

4 may make, and the beneficiary shall accept, commutation of the benefits into a lump sum

5 settlement and payment. Nonresident alien beneficiaries within the meaning of this section means

6 persons not citizens of the United States residing outside of the territorial limits of the United

7 States at the time of the injury with respect to which benefits are awarded.

   §23-4-15b. Determination of nonmedical questions; claims for occupational

   pneumoconiosis; hearing.

1  If a claim for occupational pneumoconiosis benefits is filed by an employee within three

2 years from and after the last day of the last continuous period of 60 days’ exposure to the hazards

3 of occupational pneumoconiosis, the Insurance Commissioner, private carrier, or self-insured

4 employer, whichever is applicable, shall determine whether the claimant was exposed to the

5 hazards of occupational pneumoconiosis for a continuous period of not less than 60 days while

6 in the employ of the employer within three years prior to the filing of his or her claim, whether in

7 the State of West Virginia the claimant was exposed to such hazard over a continuous period of

8 not less than two years during the 10 years immediately preceding the date of his or her last

9 exposure to the hazard and whether the claimant was exposed to the hazard over a period of not

10 less than 10 years during the 15 years immediately preceding the date of his or her last exposure

11 to the hazard. If a claim for occupational pneumoconiosis benefits is filed by an employee within

12 three years from and after the employee’s occupational pneumoconiosis was made known to the

13 employee by a physician, the Insurance Commissioner, private carrier, or self-insured employer,

14 whichever is applicable, shall determine whether the claimant filed his or her application within

15 that period and whether in the State of West Virginia the claimant was exposed to the hazard over

16 a continuous period of not less than two years during the 10 years immediately preceding the

17 date of last exposure to the hazard and whether the claimant was exposed to the hazard over a

18 period of not less than 10 years during the 15 years immediately preceding the date of last

19 exposure to the hazard. If a claim for occupational pneumoconiosis benefits is filed by a

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20 dependent of a deceased employee, the Insurance Commissioner, private carrier, or self-insured

21 employer, whichever is applicable, shall determine whether the deceased employee was exposed

22 to the hazards of occupational pneumoconiosis for a continuous period of not less than 60 days

23 while in the employ of the employer within 10 years prior to the filing of the claim, whether in the

24 State of West Virginia the deceased employee was exposed to the hazard over a continuous

25 period of not less than two years during the 10 years immediately preceding the date of his or her

26 last exposure to the hazard and whether the claimant was exposed to the hazard over a period

27 of not less than 10 years during the 15 years immediately preceding the date of his or her last

28 exposure to the hazard. The Insurance Commissioner, private carrier, or self-insured employer,

29 whichever is applicable, shall also determine other nonmedical facts that, in the opinion of the

30 Insurance Commissioner, private carrier, or self-insured employer, are pertinent to a decision on

31 the validity of the claim.

32  The Insurance Commissioner, private carrier, or self-insured employer, whichever is

33 applicable, shall enter an order with respect to nonmedical findings within 90 days following

34 receipt by the Insurance Commissioner, private carrier, or self-insured employer of both the

35 claimant’s application for occupational pneumoconiosis benefits and the physician’s report filed

36 in connection with the claimant’s application and shall give each interested party notice in writing

37 of these findings with respect to all the nonmedical facts. The findings and actions of the Insurance

38 Commissioner, private carrier, or self-insured employer, whichever is applicable, are final unless

39 the employer, employee, claimant, or dependent, within 60 days after receipt of the notice, objects

40 to the findings and, unless an objection is filed within the 60-day period, the findings are forever

41 final, the time limitation is a condition of the right to litigate the findings and therefore jurisdictional.

42 Upon receipt of an objection, the Board of Review shall set a hearing as provided in §23-5-9a of

43 this code. In the event of an objection to the findings by the employer, the claim shall,

44 notwithstanding the fact that one or more hearings may be held with respect to the objection,

45 mature for reference to the Occupational Pneumoconiosis Board with like effect as if the objection

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46 had not been filed. If the Board of Review concludes after the objection hearings that the claim

47 should be dismissed, a final order of dismissal shall be entered. The final order is subject to appeal

48 in accordance with the provisions of §23-5-10a and §23-5-12a of this code. If the Board of Review

49 concludes after the objection hearings that the claim should be referred to the Occupational

50 Pneumoconiosis Board for its review, the order entered shall be interlocutory only and may be

51 appealed only in conjunction with an appeal from a final order with respect to the findings of the

52 Occupational Pneumoconiosis Board.

    §23-4-16. 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.

1   (a) The power and jurisdiction of the Insurance Commissioner, private carrier, or self-

2 insured employer, whichever is applicable, over each case is continuing and the Insurance

3 Commissioner, private carrier, or self-insured employer may, in accordance with the provisions of

4 this section and after due notice to the employer, make modifications or changes with respect to

5 former findings or orders that are justified. The period in which a claimant may request a

6 modification, change, or reopening of a prior award shall be determined by the following

7 subdivisions of this subsection. Any request that is made beyond that period shall be refused.

8   (1) Except as provided in §23-4-22 of this code, in any claim which was closed without the

9 entry of an order regarding the degree, if any, of permanent disability that a claimant has suffered,

10 or in any case in which no award has been made, any request must be made within five years of

11 the closure. During that time period, only two requests may be filed.

12  (2) Except as stated below, in any claim in which an award of permanent disability was

13 made, any request must be made within five years of the date of the initial award. During that time

14 period, only two requests may be filed. With regard to those occupational diseases, including

15 occupational pneumoconiosis, which are medically recognized as progressive in nature, if any

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16 such request is granted by the Insurance Commissioner, private carrier, or self-insured employer,

17 whichever is applicable, a new five-year period begins upon the date of the subsequent award.

18  (3) No further award may be made in fatal cases except within two years after the death

19 of the employee.

20  (4) With the exception of the items set forth in §23-4-3(d) of this code, in any claim in which

21 medical or any type of rehabilitation service has not been rendered or durable medical goods or

22 other supplies have not been received for a period of five years, no request for additional medical

23 or any type of rehabilitation benefits shall be granted nor shall any medical or any type of

24 rehabilitation benefits or any type of goods or supplies be paid for by the Insurance Commissioner,

25 private carrier, or self-insured employer, whichever is applicable, if they were provided without a

26 prior request. For the exclusive purposes of this subdivision, medical services and rehabilitation

27 services shall not include any encounter in which significant treatment was not performed.

28  (b) In any claim in which an injured employee makes application for a further period of

29 temporary total disability, if the application is in writing and filed within the applicable time limit

30 stated above, the Insurance Commissioner, private carrier, or self-insured employer, whichever

31 is applicable, shall pass upon the request within 30 days of the receipt of the request. If the

32 decision is to grant the request, the order shall provide for the receipt of temporary total disability

33 benefits. In any case in which an injured employee makes application for a further award of

34 permanent partial disability benefits or for an award of permanent total disability benefits, if the

35 application is in writing and filed within the applicable time limit as stated above, the Insurance

36 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall pass upon

37 the request within 30 days of its receipt and, if the Insurance Commissioner, private carrier, or

38 self-insured employer determines that the claimant may be entitled to an award, the Insurance

39 Commissioner, private carrier, or self-insured employer shall refer the claimant for further

40 examinations that are necessary.

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41  (c) If the application is based on a report of any medical examination made of the claimant

42 and submitted by the claimant to the Insurance Commissioner, private carrier, or self-insured

43 employer, whichever is applicable, in support of his or her application and the claim is opened for

44 further consideration and additional award is later made, the claimant shall be reimbursed for the

45 expenses of the examination. The reimbursement shall be made by the Insurance Commissioner,

46 private carrier, or self-insured employer, whichever is applicable, to the claimant, in addition to all

47 other benefits awarded, upon due proof of the amount thereof being furnished by the claimant,

48 but shall in no case exceed the sum fixed pursuant to the applicable schedule of maximum

49 reasonable fees.

50  (d) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

51 applicable, has continuing power and jurisdiction over claims in which permanent total disability

52 awards have been made after April 8, 1993.

53  (1) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

54 applicable, shall continuously monitor permanent total disability awards and may, from time to

55 time, after due notice to the claimant, reopen a claim for reevaluation of the continuing nature of

56 the disability and possible modification of the award. At such times as the Insurance

57 Commissioner, private carrier, or self-insured employer, whichever is applicable, may determine,

58 the Insurance Commissioner, private carrier, or self-insured employer may require the claimant

59 to provide documents and other information, including, but not limited to, tax returns, financial

60 records, and affidavits demonstrating level of income, recreational activities, work activities,

61 medications used, and physicians or other medical or rehabilitation providers treating or

62 prescribing medication or other services for the claimant; require the claimant to appear under

63 oath and answer questions; and suspend or terminate any benefits of a claimant who willfully fails

64 to provide the information or appear as required. The Insurance Commissioner, private carrier, or

65 self-insured employer, whichever is applicable, may reopen a claim for reevaluation when, in its

66 sole discretion, it concludes that there exists good cause to believe that the claimant no longer

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67 meets the eligibility requirements under §23-4-6(n) of this code. The eligibility requirements,

68 including any vocational standards, shall be applied as those requirements are stated at the time

69 of a claim’s reopening.

70  (2) Upon reopening a claim under this subsection, the Insurance Commissioner, private

71 carrier, or self-insured employer, whichever is applicable, may take evidence, have the claimant

72 evaluated, make findings of fact and conclusions of law, and shall vacate, modify, or affirm the

73 original permanent total disability award as the record requires. In the event the claimant retains

74 his or her award following the reevaluation, the claimant’s reasonable attorneys’ fees incurred in

75 defending the award shall be paid by the Insurance Commissioner, private carrier, or self-insured

76 employer, whichever is applicable. In addition, the Insurance Commissioner, private carrier, or

77 self-insured employer, whichever is applicable, shall reimburse a prevailing claimant for his or her

78 costs in obtaining one evaluation on each issue during the course of the reevaluation.

79  (3) This subsection shall not be applied to awards made under the provisions of §23-4-

80 6(m) of this code. The claimant may seek review of the final order as otherwise provided in §23-

81 5-1 et seq. of this code for review of orders granting or denying permanent disability awards.

82  (4) The Insurance Commissioner shall establish by rule criteria for review, reopening, and

83 reevaluating a claim under this subsection.

84  (e) A claimant may have only one active request for a permanent disability award pending

85 in a claim at any one time. Any new request that is made while another is pending shall be

86 consolidated into the former request.

    §23-4-16a. Interest on benefits.

1   Whenever any award of temporary total, permanent partial, or permanent total disability

2 benefits or dependent benefits is made on or after July 1, 1971, and a protest is filed to the award

3 or an appeal is taken from the award by an employer only and not by the claimant or dependent

4 and the award is not ultimately denied or reduced following the protest or appeal, the Insurance

5 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall add interest

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6 to the award at the simple rate of six percent per annum from the date the award would have

7 been payable had the protest or appeal not been filed or taken, exclusive of any period for which

8 a continuance was granted upon motion of any party other than the protesting or appealing

9 employer.

   §23-4-17. Commutation of periodical benefits.

1  The Insurance Commissioner, private carrier, or self-insured employer, whichever is

2 applicable, under special circumstances and when it is considered advisable, may commute

3 periodical benefits to one or more lump-sum payments. Upon the application of any claimant who

4 has received an award of partial or total disability, who is not a citizen of the United States and

5 desires to reside permanently beyond the territorial limits of the United States, or upon the

6 application of an alien dependent of a deceased employee with respect of whose death award of

7 compensation has been made, the dependent residing in the territorial limits of the United States

8 at the time of the decedent’s death, and desiring to reside permanently beyond the territorial limits

9 of the United States, the Insurance Commissioner, private carrier, or self-insured employer,

10 whichever is applicable, may commute into one lump-sum payment the periodical payments to

11 which the claimant or dependent would be entitled, but at the rate of one-half the amount that

12 would be payable to a citizen of the United States under like circumstances. The lump-sum

13 payment at the rate specified in this section discharges all liability with respect to the award, but

14 in no event shall the award be paid until the claimant or dependent has actually arrived and

15 domiciled himself or herself outside the territorial limits of the United States, except a sufficient

16 portion of the award to pay transportation and other necessary expenses.

   §23-4-18. Mode of paying benefits generally; exemptions of compensation from legal

   process.

1  Except as provided by this section, compensation shall be paid only to the employees or

2 their dependents and is exempt from all claims of creditors and from any attachment, execution

3 or assignment other than compensation to counsel for legal services, under the provisions of, and

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4 subject to the limitations contained in §23-5-16a of this code, and other than for the enforcement

5 of orders for child or spousal support entered pursuant to the provisions of chapter 48 of this code.

6 Payments may be made in the periodic installments determined by the Insurance Commissioner,

7 private carrier, or self-insured employer, whichever is applicable, in each case, but in no event

8 less frequently than semimonthly for any temporary award and monthly for any permanent award.

9 Payments for permanent disability shall be paid on or before the third day of the month in which

10 they are due. In all cases where compensation is awarded or increased, the amount of

11 compensation shall be calculated and paid from the date of disability.

   §23-4-20. Postmortem examinations.

1  The Insurance Commissioner, private carrier, or self-insured employer, whichever is

2 applicable, may, after due notice to the claimant, whenever it considers it necessary, order an

3 autopsy and may designate a duly licensed physician to make the postmortem examination or

4 examinations that are necessary to determine the cause of the deceased employee’s death. The

5 physician shall file with the Insurance Commissioner, private carrier, or self-insured employer,

6 whichever is applicable, a written report of his or her findings. The claimant has the right to select

7 a physician of his or her own choosing and, at his or her own expense, to participate in the

8 postmortem examination. The physician selected by the claimant has the right to concur in any

9 report made by the physician selected by the Insurance Commissioner, private carrier, or self-

10 insured employer, whichever is applicable, or may file a separate report. In any case, including

11 silicosis cases, in which a claimant requests that an autopsy be performed, the autopsy shall be

12 directed as provided in this section. In the event that a claimant refuses to consent and permit the

13 autopsy, all rights to compensation shall be forfeited.

   §23-4-22. Permanent disability evaluations; limitations; notice.

1  [Repealed.]

   §23-4-23. Permanent total disability benefits; reduction of disability benefits; reduction of

   benefits; application of section; severability.

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2   (a) This section is applicable whenever benefits are being paid for permanent total

3 disability benefits arising under §23-4-6(d), (m), or (n) of this code or under §23-4-8c of this code.

4 This section is not applicable to the receipt of temporary total disability benefits, the receipt of

5 permanent partial disability benefits, the receipt of benefits by partially or wholly dependent

6 persons, or to the receipt of benefits pursuant to the provisions of §23-4-10(e) of this code. This

7 section is not applicable to the receipt of medical benefits or the payment for medical benefits.

8   (b) Whenever applicable benefits are paid to a beneficiary with respect to the same time

9 period for which payments under a self-insurance plan, a wage continuation plan, or a disability

10 insurance policy provided by an employer are also received or being received by the beneficiary,

11 the applicable benefits shall be reduced by these amounts:

12  (1) The after-tax amount of the payments received or being received under a self-

13 insurance plan, a wage continuation plan, or under a disability insurance policy provided by an

14 employer if the employee did not contribute directly to the plan or to the payment of premiums

15 regarding the disability insurance policy; or

16  (2) The proportional amount, based on the ratio of the employer’s contributions to the total

17 insurance premiums for the policy period involved, of the after-tax amount of the payments

18 received or being received by the employee pursuant to a disability insurance policy provided by

19 an employer if the employee did contribute directly to the payment of premiums regarding the

20 disability insurance policy: Provided, That in no event shall applicable benefits be reduced below

21 the minimum weekly benefits as provided for in §23-4-6(b) and (d) of this code.

22  (c) This section applies to awards of permanent total disability made after the effective

23 date of this section.

24  (d) The Insurance Commissioner shall promulgate the appropriate rules for the

25 interpretation, processing, and enforcement of this section.

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26  (e) If any portion of this section or any application of this section is subsequently found to

27 be unconstitutional or in violation of applicable law, it shall not affect the validity of the remainder

28 of this section or the applications of the section that are not unconstitutional or in violation.

    §23-4-24. Permanent total disability awards; retirement age; limitations on eligibility and

    the introduction of evidence; effects of other types of awards; procedures; requests

    for awards; jurisdiction.

1   (a) Notwithstanding any provision of this chapter to the contrary, except as stated below,

2 no claimant shall be awarded permanent total disability benefits arising under §23-4-6(d) or (n) of

3 this code or §23-4-8c of this code who terminates active employment and is receiving full old-age

4 retirement benefits under the Social Security Act, 42 U.S.C. § 401 and 42 U.S.C. § 402. Any

5 claimant shall be evaluated only for the purposes of receiving a permanent partial disability award

6 premised solely upon the claimant’s impairments. This subsection is not applicable in any claim

7 in which the claimant has completed the submission of his or her evidence on the issue of

8 permanent total disability prior to the later of the following: Termination of active employment or

9 the initial receipt of full old-age retirement benefits under the Social Security Act. Once the

10 claimant has terminated active employment and has begun to receive full old-age social security

11 retirement benefits, the claimant may not produce additional evidence of permanent total disability

12 nor shall the claim be remanded for the production of the evidence.

13  (b) The Insurance Commissioner, private carrier, or self-insured employer, whichever is

14 applicable, has the sole and exclusive jurisdiction to initially hear and decide any claim or request

15 pertaining, in whole or in part, to §23-4-6(d) or (n) of this code. Any claim or request for permanent

16 total disability benefits arising under said subdivisions shall first be presented as part of the initial

17 claim filing or by way of an application for modification or adjustment pursuant to §23-4-16 of this

18 code. The Board of Review may consider a claim only after the Insurance Commissioner, private

19 carrier, or self-insured employer, whichever is applicable, has entered an appropriate order.

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    §23-4-25. Permanent total disability benefits; reduction of disability benefits for wages

    earned by claimant.

1   (a) After April 8, 1993, a reduction in the amount of benefits as specified in subsection (b)

2 of this section shall be made whenever benefits are being paid for a permanent total disability

3 award regardless of when the benefits were awarded. This section is not applicable to the receipt

4 of medical benefits or the payment for medical benefits, the receipt of permanent partial disability

5 benefits, the receipt of benefits by partially or wholly dependent persons, or to the receipt of

6 benefits pursuant to the provisions of §23-4-10(e) of this code. Prior to the application of this

7 section to any claimant, the Insurance Commissioner, private carrier, or self-insured employer,

8 whichever is applicable, shall give the claimant notice of the effect of this section upon a claimant’s

9 award if and when the claimant later earns wages.

10  (b) Whenever applicable benefits are paid to a claimant with respect to the same time

11 period in which the claimant has earned wages as a result of his or her employment, the following

12 reduction in applicable benefits shall be made. The claimant’s applicable monthly benefits and

13 monthly net wages received from the current employment shall be added together. If the total

14 exceeds by more than 120 percent of the amount of the claimant’s monthly net wages earned

15 during his or her last employment prior to the award of permanent total disability benefits, the

16 excess shall be reduced by $1 for each $2 that the claimant’s monthly benefits and monthly net

17 wages exceed the 120 percent level: Provided, That in no event shall applicable benefits be

18 reduced below the minimum weekly benefits as provided in §23-4-6(b) and (d) of this code.

    ARTICLE 5. REVIEW.

    §23-5-1. Notice by commission or self-insured employer of decision; procedures on

    claims; objections and hearing; effective until June 30, 2022.

1   [Repealed.]

    §23-5-2. Application by employee for further adjustment of claim; objection to

    modification; hearing.

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1  In any case where an injured employee makes application in writing for a further

2 adjustment of his or her claim under the provisions of §23-4-16 of this code and the application

3 discloses cause for a further adjustment, the Insurance Commissioner, private carrier, or self-

4 insured employer, whichever is applicable, shall make the modifications or changes with respect

5 to former findings or orders in the claim that are justified. Any party dissatisfied with any

6 modification or change made by the Insurance Commissioner, private carrier, or self-insured

7 employer, whichever is applicable, is, upon proper and timely objection, entitled to a hearing, as

8 provided in §23-5-9a of this code.

   §23-5-3. Refusal to reopen claim; notice; objection; effective until June 30, 2022.

1  [Repealed.]

   §23-5-4. Application by employer for modification of award; objection to modification;

   hearing.

1  In any case in which an employer makes application in writing for a modification of any

2 award previously made to an employee of the employer, the Insurance Commissioner, private

3 carrier, or self-insured employer, whichever is applicable, shall make a decision upon the

4 application. If the application discloses cause for a further adjustment, the Insurance

5 Commissioner, private carrier, or self-insured employer, whichever is applicable, shall, after due

6 notice to the employee, make the modifications or changes with respect to former findings or

7 orders that are justified. Any party dissatisfied with any modification or change made or by the

8 denial of an application for modification is, upon proper and timely objection, entitled to a hearing

9 as provided in §23-5-9a of this code.

   §23-5-5. Refusal of modification; notice; objection; effective until June 30, 2022.

1  [Repealed.]

   §23-5-6. Time periods for objections and appeals; extensions; effective until June 30, 2022.

1  [Repealed.]

   §23-5-7. Compromise and settlement.

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1   (a) The claimant, the employer, and the Workers’ Compensation Commission, the

2 successor to the commission, other private insurance carriers, and self-insured employers,

3 Insurance Commissioner, private carrier, or self-insured employer, whichever is applicable, may

4 negotiate a final settlement of any and all issues in a claim wherever the claim is in the

5 administrative or appellate processes: Provided, That in the settlement of medical benefits for

6 nonorthopedic occupational disease claims, the claimant shall be represented by legal counsel:

7 Provided, however, That for the purposes of this section, the term "nonorthopedic occupational

8 disease claim" does not include an occupational hearing loss or hearing impairment claim. If the

9 employer is not active in the claim, the commission, the successor to the commission, other

10 private insurance carriers, and self-insured employers, Insurance Commissioner, private carrier,

11 or self-insured employer, whichever is applicable, may negotiate a final settlement with the

12 claimant and the settlement shall be made a part of the claim record. Except in cases of fraud, no

13 issue that is the subject of an approved settlement agreement may be reopened by any party,

14 including the commission, the successor to the commission, other private insurance carriers, and

15 self-insured employers, Insurance Commissioner, private carrier, or self-insured employer,

16 whichever is applicable. Any settlement agreement may provide for a lump-sum payment or a

17 structured payment plan, or any combination thereof, or any other basis as the parties may agree.

18 If a self-insured employer later fails to make the agreed-upon payment, the commission Insurance

19 Commissioner shall assume the obligation to make the payments and shall recover the amounts

20 paid or to be paid from the self-insured employer and its sureties or guarantors, or both, as

21 provided in §23-2-5 or §23-2-5a of this code.

22  (b) Each settlement agreement shall provide the toll-free number of the West Virginia State

23 Bar Association and shall provide the injured worker with five business days to revoke the

24 executed agreement. The Insurance Commissioner may void settlement agreements entered into

25 by an unrepresented injured worker which are determined to be unconscionable pursuant to

26 criteria established by rule of the commissioner.

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27  (c) The amendments to this section enacted during the regular session of the Legislature,

28 2015, apply to all settlement agreements executed after the effective date.

    §23-5-8. Designation of Office of Administrative Law Judges; powers of chief

    administrative law judge; effective until June 30, 2022.

1   [Repealed.]

    §23-5-9. Hearings on objections to Insurance Commissioner; private carrier or self-insured

    employer decisions; mediation; remand; effective until June 30, 2022.

1   [Repealed.]

    §23-5-10. Appeal from administrative law judge decision to appeal board; effective until

    June 30, 2022.

1   [Repealed.]

    §23-5-11. Workers’ Compensation Board of Review generally; administrative powers and

    duties of the board; effective until June 30, 2022.

1   [Repealed.]

    §23-5-11a. Workers’ Compensation Board of Review generally; administrative powers and

    duties of the board.

1   (a) The "Workers’ Compensation Board of Review", which may also be referred to as "the

2 Board of Review" or "the board" is hereby continued and granted exclusive jurisdiction over all

3 objections to decisions of the Insurance Commissioner, private carriers, and self-insured

4 employers, whichever is applicable, including any and all matters that were pending before the

5 former Office of Judges after September 30, 2022.

6   (b) The board shall consist of at least three members and not exceed a total of five

7 members.

8   (c) The Governor shall appoint, with the advice and consent of the Senate, attorneys

9 qualified in accordance with subsection (f) of this section to serve as members of the Board of

10 Review. A member of the Board of Review may be removed by the Governor for official

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11 misconduct, incompetence, neglect of duty, gross immorality, or malfeasance, and then only after

12 notice and opportunity to respond and present evidence. If the board consists of five members,

13 no more than three of the members may be of the same political party. If the board consists of

14 three or four members, no more than two of the members may be of the same political party. The

15 Governor shall set the salary of the members of the board: Provided, That the annual salary of a

16 member of the Board of Review shall not exceed $125,000. Members are entitled to be

17 reimbursed for actual and necessary travel expenses incurred in the discharge of official duties in

18 a manner consistent with the guidelines of the Travel Management Office of the Department of

19 Administration.

20  (d) Of the initial appointments of the two additional seats created during the 2021 Regular

21 Session, one member shall be appointed for a term ending December 31, 2025; one member

22 shall be appointed for a term ending December 31, 2027. Thereafter, the appointments shall be

23 for six-year terms. Notwithstanding any other provision of this code to the contrary, the term of a

24 member shall expire pursuant to this subsection unless the member is reappointed by the

25 Governor as set forth in subsection (c) of this section.

26  (e) A member of the Board of Review must, at the time he or she takes office and thereafter

27 during his or her continuance in office, be a resident of this state, be a member in good standing

28 of the West Virginia State Bar, have a minimum of 10 years’ experience as an attorney admitted

29 to practice law in this state prior to appointment, and have a minimum of five years’ experience in

30 preparing and presenting cases or hearing actions and making decisions on the basis of the

31 record of those hearings before administrative agencies, regulatory bodies, or courts of record at

32 the federal, state, or local level.

33  (f) No member of the Board of Review may hold any other office, or accept any

34 appointment or public trust, nor may he or she become a candidate for any elective public office

35 or nomination thereto. Violation of this subsection requires the member to vacate his or her office.

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36 No member of the Board of Review may engage in the practice of law during his or her term of

37 office.

38          (g) A vacancy occurring on the board other than by expiration of a term shall be filled in

39 the manner original appointments were made, for the unexpired portion of the term.

40          (h) The board shall designate one of its members in rotation to be chair of the board for

41 as long as the board may determine by order made and entered of record. In the absence of the

42 chair, any other member designated by the members present shall act as chair.

43          (i) The Board of Review shall meet as often as necessary to conduct the board’s

44 administrative business and make rules of practice and procedure, at such times and places as

45 the chair may determine. Two members shall be present in order to conduct administrative

46 business and make rules of practice and procedure. All decisions of the board upon administrative

47 matters, pursuant to this section, shall be determined by a majority of the members of the board.

48 In the event of a tie vote, the chair shall cast the deciding vote.

49          (j) The Board of Review shall, from time to time, promulgate rules of practice and

50 procedure for the review and determination of all objections filed with the board. The board does

51 not have the power to initiate or to promulgate legislative rules as that phrase is defined in §29A-

52 3-1 et seq. of this code. Any rules adopted pursuant to this section which are applicable to the

53 provisions of this article are not subject to §29A-3-9 through §29A-3-16 of this code. The board

54 shall follow the remaining provisions of chapter 29A of this code for giving notice to the public of

55 its actions and the holding of hearings or receiving of comments on the rules.

56          (k) The Board of Review may hire a clerk, hearing examiners, and other professional and

57 clerical staff necessary to carry out the requirements of this article. It is the duty of the clerk of the

58 Board of Review to attend in person, or by deputy, all the sessions of the board, to obey its orders

59 and directions, to take care of and preserve in an office, kept for the purpose, all records and

60 papers of the board and to perform other duties as prescribed by law or required of him or her by

61 the board. All employees of the board serve at the will and pleasure of the board. The board’s

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62 employees are exempt from the salary schedule or pay plan adopted by the Division of Personnel:

63 Provided, That for the purpose of any applicable Division of Personnel class specifications,

64 hearing examiners must be classified under a class with "attorney" in the class title. All personnel

65 of the Board of Review are under the supervision of the chair of the Board of Review.

66  (l) The administrative expenses of the Board of Review shall be included within the annual

67 budget of the Insurance Commissioner, and the Insurance Commissioner shall have

68 administrative authority and oversight over the Board of Review.

69  (m) The amendments to this section made during the 2021 Regular Session of the

70 Legislature shall become effective on July 1, 2022: Provided, That the board is authorized to

71 promulgate rules and hire staff, pursuant to subsection (k) and (l) of this section, respectively,

72 prior to July 1, 2022, to the extent necessary to comply with the requirements of this article that

73 shall become effective on that date.

    §23-5-12. Appeal to board; procedure; remand and supplemental hearing; effective until

    June 30, 2022.

1   [Repealed.]

    §23-5-13. Continuances and supplemental hearings; claims not to be denied on

    technicalities; effective until June 30, 2022.

1   [Repealed.]

    §23-5-14. Disqualification of board members.

1   In any matter wherein a member of the Workers’ Compensation Board of Review is a

2 party, or is personally interested in the results thereof, or is a beneficiary therein, or is connected

3 with a beneficiary therein, he or she shall be disqualified from participating in the hearing and

4 determination of any objection to decisions of the Insurance Commissioner, private carrier, or self-

5 insured employer, whichever is applicable.

    §23-5-15. Appeals from final decisions of board to Supreme Court of Appeals of West

    Virginia prior to July 1, 2022; procedure; costs.

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1  [Repealed.]

   §23-5-16. Fees of attorney for claimant; unlawful charging or receiving of attorney fees;

   effective until June 30, 2022.

1  [Repealed.]

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              The Clerk of the House of Delegates and the Clerk of the Senate hereby

         certify that the foregoing bill is correctly enrolled.
         ...............................................................

              Clerk of the House of Delegates
                           ...............................................................
                                        Clerk of the Senate

         Originated in the House of Delegates.
         In effect 90 days from passage.

                                       ...............................................................
                                          Speaker of the House of Delegates
                                                           ...............................................................
                                                                     President of the Senate
                                                        __________

              The within is ................................................ this the...........................................
         Day of ..........................................................................................................., 2026.

                                                                   .............................................................
                                                                                         Governor

                                                              67
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