Current through Register Vol. XLI, No. 50, December 13, 2024
Section 85-10-2 - Purpose of Rule2.1. The purpose of this rule is to implement the provisions of W. Va. Code § 23-2-1d, which was first adopted by the legislature during the 1993 session. The section was amended and reenacted by the legislature during the 1995 session. The section was further amended and reenacted by the legislature during the 2003 extraordinary session and became effective on July 1, 2003. a. This section was amended and reenacted by the legislature, effective January 29, 2005, and provided that upon termination of the commission, the provisions of W. Va. Code § 23-2-1d shall be applicable only to unpaid premiums due the commission or the old fund as provided in article two-c of chapter twenty-three of the Code of West Virginia. This rule is so modified to be consistent with the amended Code upon termination of the commission.2.2. This rule imposes liability upon primary contractors, including owners and lessees under certain circumstances, for payments due and owing to the workers' compensation commission. These payments include premium taxes, premium deposits, late reporting and payment penalties, interest, and certain other penalties. This rule provides the procedures for certain employers to follow to avoid the imposition of this liability as well as the procedures by which the workers' compensation commission will impose this liability. The rule also offers guidance on the substantive application of the section.2.3. This rule does not apply to any subcontractor who obtains and maintains without termination or default appropriate workers' compensation coverage from another state or jurisdiction for its employees who are regularly employed by the employer in the other state or jurisdiction and who will be involved in this state temporarily, that is, under a contract or project that will be completed within ninety days of its commencement by its worker or workers, in the performance of the work under the contract. The rule is only applicable to a subcontractor any of whose employees ought to be covered by workers' compensation coverage by the West Virginia workers' compensation commission. West Virginia coverage is required for employees who are initially employed in West Virginia by an out-of-state employer merely temporarily to be involved in the performance of the work under the contract, regardless of the place of hire or the personal domicile of the temporary employee.2.4. This rule is implemented in accordance with the stated intent of the Legislature that no contractor, whether a primary contractor, subcontractor or sub-subcontractor, escape or avoid liability for any workers' compensation premium, assessment or tax.2.5. Applicability. 2.5.a. W. Va. Code § 23-2-1d provides that primary contractors may become liable for the workers' compensation obligations of their subcontractors. In addition, W. Va. Code § 23-2-1d provides a methodology whereby the primary contractor may avoid this liability.2.5.b. This rule only applies to the liability imposed on the primary contractor and the avoidance of liability by the primary contractor under the provisions of W. Va. Code 23-2-1d.2.5.c. This rule does not apply to any other theory of liability under which a primary contractor or any other legal entity or individual may become liable for the workers' compensation obligations of its subcontractors or others.