W. Va. Code R. § 85-12-14

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 85-12-14 - Insurance Commissioner Review

14.1. In accordance with the provisions of W. Va. Code § 23-5-7, the Insurance Commissioner may review any workers' compensation settlement entered into between an unrepresented claimant and the Insurance Commissioner, private insurance carriers, or self-insured employer, and may declare any such settlement void if the Insurance Commissioner determines the settlement to be unconscionable pursuant to the criteria set forth in subsection 14.2 of this section.

14.2. A workers' compensation settlement shall be considered unconscionable, and therefore be declared void as against public policy, if it is found to constitute a gross miscarriage of justice or if the terms of the settlement shock the conscience.

Criteria to be considered by the Insurance Commissioner in determining whether a settlement is unconscionable include, but are not limited to:

14.2.a. The relative position of the parties involved in the settlement at the time the settlement was entered into;

14.2.b. The adequacy of the bargaining position of the parties at the time the settlement was entered into;

14.2.c. The meaningful alternatives available to the claimant at the time the settlement was entered into;

14.2.d. The existence of specific unfair terms in the settlement agreement;

14.2.e. The nature of the entire agreement;

14.2.f. Whether the claimant was provided ample opportunity to read and review the settlement agreement and/or whether the settlement agreement was read to the claimant;

14.2.g. Whether the claimant was not informed of his ability to obtain a lawyer to assist in the review of the agreement;

14.2.h. Whether any of the material terms of the settlement agreement were not conspicuous;

14.2.i. The percentage of total benefits provided for under the settlement terms which have actually been received by the claimant when the claimant requested the settlement be reviewed; and

14.2.j. The time that has elapsed between the time the settlement was entered into and the time the claimant requested the settlement be reviewed.

14.3. All workers' compensation settlements are presumed not to be unconscionable. The claimant shall at all times have the burden of proving that a settlement agreement is unconscionable. The facts that the terms of a workers' compensation settlement are such that the claimant may not have received the same amount of benefits which he would have received under chapter twenty-three of the West Virginia Code, that the claimant may have been able to obtain more benefits had the claimant chose to not enter into the settlement, or that the claimant's injury or occupational disease has unexpectedly progressed or become worse since the time of the settlement was entered into are not sufficient to render a settlement unconscionable. Rather, the claimant must prove the settlement was unconscionable based on the criteria and standards set forth in subsection 14.2 of this section.

14.4. Procedure for review.

14.4.a. Any claimant who believes that a settlement entered into while the claimant was unrepresented by counsel is unconscionable may, within one hundred-eighty (180) calendar days of the date of the settlement, file with the Insurance Commissioner, on a form prescribed by the Insurance Commissioner, a request for review of settlement. The one hundred-eighty (180) day time limitation is jurisdictional, and a claimant may under no circumstances have a settlement reviewed beyond the time limitation: Provided, That a claimant may, within one hundred-eighty (180) calendar days of July 19, 2006 request a review of any settlement entered into with the former Workers' Compensation Commission, self-insured employer or a private carrier between January 29, 2005 and July 19, 2006.

14.4.b. Following the receipt of a request for settlement review, the Insurance Commissioner will then forward the request to a hearing examiner. The hearing examiner shall permit all parties involved in the disputed settlement to present, as part of the record, written argument and evidence as to each party's position regarding the settlement. Additionally, each party shall be permitted to request a hearing before the hearing examiner in regard to the settlement review, with the opportunity to present at the hearing argument and evidence regarding the settlement. The hearing examiner shall have broad discretion in regard to the scope of evidence and discovery, if any, permitted in conjunction with such hearings and the settlement review process in general. Hearings shall otherwise be in accordance with the provisions of Sections 4 through 10 of 85 CSR 7.

14.4.c. Within forty-five (45) days after the request for review is submitted, the hearing examiner shall submit to the Insurance Commissioner factual findings, legal conclusions and a proposed decision either affirming the settlement or declaring the settlement void due to it being unconscionable: Provided, That upon request of one of the involved parties, the hearing examiner may, for good cause, extend the settlement review period for a period of an additional forty-five (45) days.

14.4.d. Upon receipt of the hearing examiner's recommended decision, the Insurance Commissioner shall then either enter an order consistent with the hearing examiner's recommended decision or an order based on a rejection or modification of the hearing examiner's decision. To the extent that the Insurance Commissioner rejects or modifies the recommended decision of the hearing examiner, the Commissioner shall furnish his or her own findings of fact and conclusions of law.

14.4.e. A copy of the final order or decision of the Insurance Commissioner shall be served upon each involved party, or if a party is represented by counsel, its attorney of record. Service shall occur in person or by certified mail.

14.5. Any aggrieved party shall have the right to appeal the order of the Insurance Commissioner to Circuit Court under the provisions of W. Va. Code § 29A-5-4.

W. Va. Code R. § 85-12-14