Current through Register Vol. XLI, No. 50, December 13, 2024
Section 85-10-3 - Definitions As used in this legislative rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.
3.1. "Executive Director" means the executive director of the West Virginia workers' compensation commission pursuant to W. Va. Code § 23-1-1b.3.2. "Contract" means an agreement of sufficient duration, oral or written, under which some service is to be performed. "Contract" shall include a deed for ownership or a lease of rights for any coal, oil, gas, other minerals or timber under which some service is to be performed. A contract for the extraction or transportation of natural resources is a provision of services. A contract for the provision of goods is not a contract affected by this rule. For example, the service to be performed may be the construction of a house, the grading and laying of a roadway, the construction of an office building or store, the destruction of a building, the repair of buildings or equipment, or other activity. The contracting for the mere sale and purchase of goods is not an affected contract. However, if the contract provides for or requires for fulfillment the extraction of the coal, oil, gas, other minerals or timber, by the contractor , then the contract would be affected by this rule. Therefore, if the contracting party sells the coal, for example, any contracts it may enter with another employer to extract the coal or perform some other service such as equipment or premises maintenance or repair shall be a contract affected by this rule or by W. Va. Code § 23-2-1d. In all instances, the exact terms of and the actual implementation of the contract must be examined. 3.2.a. Contracts affected by this rule are those which are entered into or extended on or after the effective date of this rule, as amended from time to time. It does not apply to any other contracts entered into or extended prior to that date.3.2.b. Contracts affected by this rule are those for work or services for a period longer than thirty (30) days or contracts for consecutive periods of work that total more than thirty (30) days.3.3. "Commission" means the workers' compensation commission as provided for by W. Va. Code § 23-1-1.3.4. "Good standing" with the commission means that the contractor or subcontractor has not defaulted on its obligations to make payments to the commission. Being in delinquent status, as provided for in W. Va. Code § 23-2-5(b), is not equivalent to being in default and does not deprive the subcontractor of good standing. Delinquent status does not give rise to the liability provided for by this rule. The term default is defined in W. Va. Code §§ 23-2-5(d), -5(e), -6, & -8. The term default also includes those situations under W. Va. Code § 23-2-5(f)(2)-(4), where an employer returns to default status upon breaching a reinstatement agreement. If a subcontractor fails to meet the requirements of those sections, then it is in default and is not in good standing with the commission.3.5. "Payments" that are obligations of the subcontractor for the purposes of this rule include the payment of premium taxes, the payment of premium deposits, late reporting and payment penalties, interest, administration charges and attorney fees and costs of actions.3.6. "Primary contractor" means generally a person, partnership, corporation, or other legal entity, which is in the business of contracting or which regularly contracts with other parties for the performance by it of some service, including the extraction of natural resources. For example, the other party may be a home owner, a land owner, neighborhood association, the owner or tenant of a building, a municipality seeking the construction of a roadway, or any other entity seeking to have work done for it. A person, partnership, corporation, or other legal entity which is in the business of selling goods and not in the business of contracting for services is not a "primary contractor" for purposes of liability under this rule and W. Va. Code § 23-2-1d. However, the owner or lessee of coal, oil, gas, other minerals or timber acting under deed or lease otherwise covered by this rule shall be a primary contractor acting under a primary contract whenever that owner or lessee is in the business of selling or extracting that asset or good and enters into a contract with another party for the purpose of extracting such coal, oil, gas, other minerals or timber. Furthermore, an owner is no less a primary contractor, and is defined as such, if he contracts with another party for the development of the property he owns whenever that owner is in the business of developing property. Rather, the totality of the circumstances surrounding the contract must be examined. For instance, a person might obtain his or her first contract in a line of work with the intention of starting a business in that field. Such an initial contract would likely cause that person to be considered a primary contractor if a portion of the obligation under the contract is subcontracted to another.3.7. "Subcontractor" means a person, partnership, corporation, or other legal entity who contracts with a primary contractor, owner or lessee, to directly perform all or part of the services to be rendered under the contract between the primary contractor, owner or lessee and a second or third party. Examples of contracts that are not subcontracts for the purpose of this rule include contracts solely to clean, repair or maintain the owner's, lessee's or primary contractor's own facility, home or machinery, such as janitorial services, domestic services, copier services or vehicle maintenance and so on in like instances. The subcontractor's contract must be directly with the primary contractor; that is, in a relationship where a primary contractor subcontracts with a subcontractor who in turn sub-subcontracts with a sub-subcontractor, then the relationship of primary contractor to subcontractor does not exist between the primary contractor and sub-subcontractor. In most circumstances, however, the subcontractor will be found to be a primary contractor with regard to the sub-subcontractor as in the example above. In order to determine whether the subcontractor is to be found to be a primary contractor, then the definition of primary contractor will have to be applied.3.8. "Employee" means, and "subcontractor" does not mean, any independent contractor who does not maintain a separate business and who does not hold himself or herself out to and render services to the public, trade or industry, provided he or she is not himself or herself an employer subject to this law or has not complied with the provisions of this law, including the workers' compensation act, and shall for the purpose of this rule and act be an employee of any employer for whom he or she is performing services in the course of the trade, business, profession or occupation of such employer.