US Laws, Codes, Statutes & Cases

§23-2C-8. West Virginia Uninsured Employer Fund.
(a) The West Virginia Uninsured Employer Fund shall be governed by the following:
(1) All money and securities in the fund must be held by the State Treasurer as custodian thereof to be used solely as provided in this article.
(2) The State Treasurer may disburse money from the fund only upon written requisition of the Insurance Commissioner.
(3) The Insurance Commissioner shall assess each private carrier and all self-insured employers an amount to be deposited in the fund. The assessment may be collected by each private carrier from its policy holders in the form of a policy surcharge. To establish the amount of the assessment, the Insurance Commissioner shall determine the amount of money necessary to maintain an appropriate balance in the fund for each fiscal year and shall allocate a portion of that amount to be payable by private carriers, a portion to be payable by self-insured employers and a portion to be paid by any other appropriate group. After allocating the amounts payable, the Insurance Commissioner shall apply an assessment rate to:
(A) Private carriers that reflects the relative hazard of the employments covered by the private carriers, results in an equitable distribution of costs among the private carriers and is based upon expected annual premiums to be received;
(B) Self-insured employers that results in an equitable distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims; and
(C) Any other categories of payees that results in an equitable distribution of costs among them and is based upon expected annual expenditures for claims or premium to be received.
(4) The workers' compensation board of managers may adopt rules for the establishment and administration of the assessment methodologies, rates, payments and any penalties that the workers' compensation board of managers determines are necessary to carry out the provisions of this section.
(b) Payments from the fund shall be governed by the following:
(1) Except as otherwise provided in this subsection, an injured worker of any employer required to be covered under this chapter who has failed to obtain coverage may receive compensation from the uninsured employers' fund if:
(A) He or she meets all jurisdictional and entitlement provisions of this chapter;
(B) He or she files a claim with the Insurance Commissioner; and
(C) He or she makes an irrevocable assignment to the Insurance Commissioner a right to be subrogated to the rights of the injured employee.
(2) If the Insurance Commissioner receives a claim, it shall immediately notify the employer of the claim. For the purposes of this section, the employer has the burden of proving that it provided mandatory workers' compensation insurance coverage for the employee or that it was not required to maintain workers' compensation insurance for the employee. If the employer meets this burden, benefits shall not be paid from the fund.
(3) Any employer who has failed to provide mandatory coverage required by the provisions of this chapter is liable for all payments made on its behalf, including any benefits, administrative costs and attorney's fees paid from the fund or incurred by the Insurance Commissioner.
(4) The Insurance Commissioner:
(A) May recover from the employer the payments made by it, any accrued interest and attorney fees and costs by bringing a civil action in a court of competent jurisdiction.
(B) May enter into a contract with any person, including the third-party administrator of the Uninsured Employer Fund, to assist in the collection of any liability of an uninsured employer.
(C) In lieu of a civil action, may enter into an agreement or settlement regarding the collection of any liability of an uninsured employer.
(5) The Insurance Commissioner shall:
(A) Determine whether the employer was insured within five days after receiving notice of the claim from the employee.
(B) Assign the claim to the third-party administrator of the fund for administration and, if appropriate, payment of compensation.
(6) Upon determining whether the claim is accepted or denied, the third-party administrator shall notify the injured employee and the named employer of its determination.
(7) Any party aggrieved by a determination made by the Insurance Commissioner or the third-party administrator regarding the claims decisions made pursuant to this section may appeal that determination by filing a protest with the office of judges as set forth in article five of this chapter.
(8) An uninsured employer is liable for the interest on any amount paid on his or her claims from the fund. The interest must be calculated at a rate set in accordance with the provisions of section thirteen, article two of this chapter, compounded monthly, from the date the claim is paid from the account until payment is received by the Insurance Commissioner or third-party administrator from the employer.
(9) Attorney's fees recoverable by the Insurance Commissioner or third-party administrator pursuant to this section must be paid at the usual and customary rate for that attorney.
(10) In addition to any other liabilities provided in this section, the Insurance Commissioner or the third-party administrator may impose an administrative fine of not more than ten thousand dollars against an employer if the employer fails to provide mandatory coverage required by this chapter. All fines and other moneys collected pursuant to this section shall be deposited into the Uninsured Employer Fund.
(c) Employees of self-insured employers who are injured while employed by a self-insured employer are ineligible for benefits from the West Virginia Uninsured Employer Fund.