Current through Register Vol. XLI, No. 50, December 13, 2024
Section 85-8-8 - The Workers' Compensation Insurance Policy8.1. Each policy for West Virginia workers' compensation insurance shall comply with chapters twenty-three and thirty-three of the West Virginia Code.8.2. Each West Virginia workers' compensation insurance policy shall provide coverage and benefit payments consistent with the provisions of chapter twenty-three of the West Virginia Code and the rules promulgated thereunder for any bodily injury with a date of injury within the policy period and for all benefit types thereafter awarded, including all dependent benefits and related death benefits provided for under chapter twenty-three of the West Virginia Code. Each workers' compensation policy shall also provide coverage for any occupational disease or occupational pneumoconiosis award with a date of last exposure within the policy period, including all dependent benefits and related death benefits provided for under chapter twenty-three of the West Virginia Code.8.3. Dependent and Death Benefits. 8.3.1. All dependent benefits payable to a claimant pursuant to W. Va. Code § 23-4-10(a)-(d), for claims in which the decedent dies on or after January 1, 2006, shall, for purposes of responsibility and chargeability, be derivative of the decedent's underlying compensable injury or exposure which caused his or her death. This means that the carrier, self-insured employer, or other fund responsible for paying the dependent benefits is the private carrier, self-insured employer or other fund providing workers' compensation coverage on the date of injury or last exposure giving rise to such dependent benefits. For all other purposes, including benefit rate and duration, the dependent benefits shall be a new right, separate and apart from the original date of injury or last exposure, to be paid in a manner otherwise consistent with statutory, regulatory and case law applicable to the same: Provided, That should the decedent's death result from a workplace injury or exposure for which there was no underlying attributable workers' compensation claim during the decedent's lifetime, the carrier, self-insured employer or other fund assigned to the compensable injury or exposure which is proven to have caused the decedent's death is responsible for the payment of the dependents' benefits.8.3.2. All "104 weeks awards" payable to a dependent, pursuant to W. Va. Code § 23-4-10(6), for claims in which the claimant dies on or after January 1, 2006, shall for purposes of responsibility and chargeability, be derivative of the deceased claimant's previously granted permanent total disability award. This means that the carrier, self-insured employer, or other fund responsible for paying the "104 weeks award" is the private carrier, self-insured employer or other fund providing workers' compensation coverage for the permanent total disability award giving rise to the "104 weeks award." For all other purposes, including benefit rate and duration, the "104 weeks awards" shall be a new right, separate and apart from the original date of injury or last exposure, to be paid in a manner otherwise consistent with statutory, regulatory, and case law applicable to the same.8.3.3. Nothing in subsections 8.3.1 or 8.3.2 of this rule shall alter the terms of any contract or agreement entered into prior to January 1, 2006, whereby any entity agreed to pay specified workers' compensation benefits.8.3.4. A private carrier, self-insured employer or other responsible fund that pays a "104 weeks award" to a dependent pursuant to W. Va. Code § 23-4-10(c) has a right to full reimbursement from another private carrier, self-insured employer or other responsible fund that pays dependent benefits pursuant to W. Va. Code § 23-4-10(a)-(d), no later than when the issue of compensability of the dependents' claim is finally determined.8.4. Upon issuance of a policy, each private carrier is deemed to have reserved its right to select, retain, and compensate legal counsel to defend any claims decisions made by the private carrier which are protested under article five, chapter twenty-three of the West Virginia Code and to settle said claims in accordance with all applicable statutes and rules.8.5. Each private carrier shall assess its policyholders any applicable deficit reduction surcharge, Insurance Commissioner regulatory surcharge, Uninsured Employers' Fund assessment, and/or Private Carrier Guaranty Fund assessment, and remit the same as directed by the Insurance Commissioner. The obligation of the private carrier is limited solely to the collection and remittance of the proper percentage amount of the surcharges and assessments as established by the Insurance Commissioner. The private carrier has no obligation to the Insurance Commissioner to make up for surcharge amounts that are not collected as a result of the insured employer's failure to pay their premium.